Month: August 2016

Was It Ethical For Donald Trump’s Former Lawyer To Trash Him In The Huffington Post?

/ Jack Marshall / 16 Comments

Backstabbed

That’s an easy question.

The answer is maybe, and no.

A couple of weeks ago, a real estate lawyer named Thomas M. Wells provoked a lively debate in the legal ethics community when he authored a Huffington Post piece titled “Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.” I’m proud to say that I flagged the issue for my colleagues first, in part because they unanimously detest Trump, even the tiny minority who aren’t full-blooded Democrats or progressives, and may have been blinded by that bias.

For me, the issue was crystallized by the headline. Wells’ headline (it doesn’t matter if it was really his or the site’s: as a lawyer, he is obligated to make sure that his article doesn’t breach legal ethics rules and principles, and the headline is part of his article) suggested that he had some special knowledge and authority regarding Trump because of what he had learned while representing him decades ago. The ethics rules prohibit lawyers from revealing client confidences, which are usually defined as what a lawyer learns about a client during the course of a representation that the client would not obviously want revealed to the world. Confidences can be revealed by actions, as well as words, and the headline comes very, very close to saying “I know things you don’t about Donald Trump because of what learned when I was his trusted lawyer.” What follows from that may be  a reader’s conclusion that the post reflects secret information. Thus the headline made my legal ethics alarms sound.

Wells has the same right as you or I to register a public opinion about his former (or current, for that matter ) client, as long as the opinion doesn’t interfere with his representation. Lawyers do not give up free speech right by being lawyers. That’s where the “maybe” comes from. There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession. Continue reading →

Ethics Heroes: The Nixon Foundation And The Richard Nixon Presidential Library

/ Jack Marshall / 34 Comments
Pop Quiz: Who is missing from this picture from the dedication of the Nixon Library in 1990, and why?

Pop Quiz: Who is missing from this picture from the dedication of the Nixon Library in 1990, and why?

I can’t stand the Kennedy Library in Boston, with all its triumphal, sentimental hagiography of both Jack and Bobby. A presidential library will naturally try to put the best spin on the accomplishments, failures, and character deficits of its subject, but it has an obligation to history too. I once was determined to visit all of the libraries, but after the first few I decided that these structures were more like the pyramids than fair and enlightening representations of the men they honored.

The worst in this respect, as you might guess, was the infamous Richard Nixon Presidential Library in Yorba Linda, California, which opened 26 years ago.The Watergate exhibit, approved by Nixon himself, painted Nixon as an innocent and heroic victim brought down by the media  and his sinister foes. This was certainly Nixon’s view, but it has no relationship to reality. So convinced was Congress that the Richard Nixon Presidential Library would display the same lack of ethics as its namesake that it passed a law in 1974 requiring his presidential records to be stored with the National Archives and out of the library’s control, where they might be altered or “lost.”

Nixon’s library entered the official presidential library system under the auspices of the National Archives in 2007, and to finally make it more than the presidential library equivalent of  Fantasyland, the Nixon Foundation ordered the old Watergate exhibit to be overhauled. Continue reading →

Ethics Quiz: Does “Black Olives Matter” Matter?

/ Jack Marshall / 45 Comments

Black Olives matter shirtI almost made this controversy an ethics quiz in July, but decided it was a fleeting jest. Wrong, Ethics-breath! Now the story has heated up again.

Paisano’s, an Italian restaurant  in Albuquerque, New Mexico is selling ‘black olives matter” T- shirts and caps following the uproar over the phrase last month, when the restaurant placed it on a marquee outside the restaurant in July:

Black Lives Matter sign

Then, owner Rick Camuglia said he came up with the play on words to sell a new tuna dish with black olive tapenade. When Camuglia posted pictures of the dish and the sign on Facebook, he drew angry complaints that he was being insensitive and “trivializing a movement aimed at trying to stop police shootings of black residents.”

Even if they are resisting lawful arrest, threatening the officer or holding a gun. But I digress…

Camuglia protested that he was only trying to sell food. Now, after receiving unexpected support, even internationally, and with business booming, the entrepreneur has reacted to requests for souvenirs from the restaurant with his new product line.

Your Ethics Alarms Ethics Quiz of the Day: 

Are the slogan, T-shirts and hats inherently disrespectful and divisive at a racially troubled time, and thus socially irresponsible, or is it a harmless play on words?

Continue reading →

Now THIS Was Zealous Representation! The Incredible, Unethical, Zealous, Crooked And Courageous Bill Fallon

/ Jack Marshall / 15 Comments

Fallon

I’m giving an ethics seminar for a group of government lawyers this morning. I think I’ll tell them about Bill Fallon.

Bill Fallon (1886-1927) was a very successful New York criminal defense attorney, and a contemporary of Clarence Darrow. He was called “The Great Mouthpiece,” because he represented some of New York’s leading pimps, narcotics dealers, embezzlers, swindlers and gamblers.  One famous client was Arnold Roth, who was the architect of the 1919 Black Sox scandal, bribing eight Chicago White Sox stars to throw the World Series. Another was Nicky Arnstein, the gambler husband of Fanny Brice. That was Omar Shariff playing Nicky in “Funny Girl.”

Fallon often bribed his juries, and got away with it: the one time he was caught and indicted, a jury found him non guilty. He probably bribed that jury, too. Clarence Darrow was proud of the fact that he represented over a hundred men and women facing the death penalty and none were ever executed. Fallon could top that: he represented over 120 homicide defendants, all of them guilty as hell, and not one was convicted.

Dashiell Hammett referred to Fallon in his novel, “Red Harvest,”, when he wrote,

He’s the guy that the joke was wrote about: ‘Is he a criminal lawyer?’ “Yes, very.'”

Continue reading →

KABOOM! The Wrigley Field DJ Really Thought This Would Be OK! (And The Cubs Get A Jumbo…)

/ Jack Marshall / 22 Comments

exploding-head5

Talk about malfunctioning ethics alarms! This story made my head explode, once I confirmed that it was not a hoax, as I desperately hoped. It apparently made the heads of a lot of Cubs fans and Cubs executive blow craniums too.

If you don’t follow baseball closely, and by the way, what’s the matter with you?, you probably don’t know two crucial facts about the Chicago Cubs closer (that’s the pitcher who comes in to pitch the ninth when his team is ahead in a close game) Aroldis Chapman:

1. He throws the baseball over 100 mph. on almost every pitch, and has hit 105 mph. on the radar gun this season. Traditionally 90 mph on a pitcher;s fastball is considered good. 95 mph is considered very good. 100 mph is outrageous. Last year, Chapman threw more pitches over 100 mph than the rest of his league’s pitchers combined.

2. Chapman was suspended for much of this season for domestic abuse, under baseball’s new policies.

The Cubs recently acquired Chapman (from the Yankees) to be the team’s closer, in this, a season that bids fair to be the one that finally ends the team’s epic string of seasons without a World Series title. The Cubs last won the Series in 1908, over a century ago. The team hasn’t even made it to the Series since 1945.

Now here’s the punch-line.

Hold on to your head. Continue reading →

Comment Of The Day: “Sarcasm-Tainted Observations On The Milwaukee Riots”

/ Jack Marshall / 112 Comments

Milwaukee rioting

Chris Marschner, a grandmaster of the Ethics Alarms Comment of the Day feature, issued another deserving one with his thoughts on the Milwaukee riots. It is a highlight of the threads generated by this topic, but there are many other highlights amid the 90+ comments, including an Alamo-like stand against overwhelming odds (and logic) by that prolific, embattled, and adamant EA progressive, deery. The whole discussion is well worth reading. Deery also authored the comment that inspired Chris’s response below.

Here is his Comment of the Day on the post, “Sarcasm-Tainted Observations On The Milwaukee Riots”:

For the life of me I cannot see how any rational human being can justify rioting and the looting businesses because they feel they are owed something for being “oppressed”. What the hell did the gas station or auto parts store do to them? Does that case of Cheezits being carried out of the store address all of your complaints, or is it just a partial down payment on a never ending invoice for the injustice you perceive? Sorry I have no sympathy for anyone who had myriad opportunities to become educated in a manner that would permit them to read, write, perform arithmetic calculations, and just plain think.

No amount of funding can overcome community apathy. Especially, when apathy is the root cause of the need for funding in the first place. The community needs to recognize that if it wants things to be different then it needs to come to grips with the idea that they must take on the lion’s share of the work to enjoy a better life; it cannot be bestowed upon them. It must pool its own resources first before it requests resources from others. It must demonstrate that it is committed to being responsible for the work of changing the situation. Any one who thinks jobs and opportunities will simply emerge with more government spending in areas that suggest crime is rampant needs his/her head examined. No amount of tax abatement will overcome the cost of rebuilding a business that has been burned to the ground. It should be noted that the police did not spray paint tags all over other people’s buildings. It’s not urban art, it’s vandalism. The police did not create the need for security grates over the glass windows of shops. The police did not throw litter all over the street and dump furniture and tires wherever they pleased. More importantly, within the BCPD, the officers charged with various felonies while on the force were predominantly non-white so it not always a racial issue.

I grew up in Baltimore City. I lived there from 1956-1989. I went to Balto. City public schools (BCPS). I went to Woodbourne Jr. High and graduated from Northern High in 1974. Both schools were integrated and each had its share of bad actors be they white or black. In those days black parents wanted to keep their kids away from the “element”. I don’t think that is the case today. Today we celebrate the gangsta persona.

I was neither a star pupil nor a bad student. What I did learn from my father was that college was not something I could ask for help with and no school counselor ever suggested that I consider college. I saw the battles my older brother went through to get him to fill out the financial information on the financial aid applications. My father hated to disclose his income. Perhaps it was because he felt inferior to what others made or maybe he just did not like the idea of getting government assistance. I don’t know. I just learned not to ask about college. To this day I don’t remember either parent talking to me about college except for when I was in 8th grade and I could not pass the foreign language class which was required for college prep.

I did not go to college immediately after high school. Ironically, both my parents were Baltimore City Public School teachers for much of their lives. My mother who taught English was known as that white honky bitch at Northern Parkway Junior High. That’s what the parents called her when she called them to discuss a student’s lack of progress. She got called that a lot. I saw the tears of frustration.

Continue reading →

Wow: A Whole Unethical TOWN!

/ Jack Marshall / 22 Comments

Upsidedownflag1

In Somers, Iowa, Homer Martz  flew his  U.S. flag upside down  to protest the future placement of an oil pipeline near his home.  He has been charged with desecrating Old Glory under Iowa code 718A , which makes it a misdemeanor punishable by up to 30 days in jail  to “publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state…”

The law, however, is unconstitutional. So said an  Iowa Federal District Court judge in 2004, when he ruled Iowa’s flag desecration laws violated the First Amendment. Martz, a U.S. Army veteran, has told anyone who will listen that the Supreme Court has ruled citizens can burn the American flag, so presumably flying it Bizarro World-style is also okay. He’s right, too. In 1989, the Supreme Court ruled in Texas v. Johnson, 491 U.S. 397 (1989), that prohibitions on desecrating the American flag were unconstitutional.. It reaffirmed the holding in  1990.

Writes an exasperated Jonathan Turley, a Constitutional law expert,  “The town of Somers appears to lack a single lawyer — or a telephone number for a single lawyer — to explain free speech protections to them.”

Is it too much to expect a municipality to absorb a First Amendment right that was settled almost a quarter century ago, and not persecute a veteran for exercising the rights he served to protect and preserve?

Apparently. They could google flag burning and learn that this law is void. Such incompetence in government, at any level, is unconscionable.

Ethics Quote Of The Month: Patrick Smith, Father Of Sylville Smith

/ Jack Marshall / 7 Comments

“What are we gonna do now? Everyone playing their part in this city, blaming the white guy or whatever, and we know what they’re doing. Like, already I feel like they should have never OK’d guns in Wisconsin. They already know what our black youth was doing anyway. These young kids gotta realize this is all a game with them. Like they’re playing Monopoly. You young kids falling into their world, what they want you to do. Everything you do is programmed. I had to blame myself for a lot of things too because your hero is your dad and I played a very big part in my family’s role model for them. Being on the street, doing things of the street life: Entertaining, drug dealing and pimping and they’re looking at their dad like ‘he’s doing all these things.’ I got out of jail two months ago, but I’ve been going back and forth in jail and they see those things so I’d like to apologize to my kids because this is the role model they look up to. When they see the wrong role model, this is what you get. They got us killing each other and when they even OK’d them pistols and they OK’d a reason to kill us too. Now somebody got killed reaching for his wallet, but now they can say he got a gun on him and they reached for it. And that’s justifiable. When we allowed them to say guns is good and it’s legal, we can bear arms. This is not the wild, wild west y’all. But when you go down to 25th and center, you see guys with guns hanging out this long, that’s ridiculous, and they’re allowing them to do this and the police know half of them don’t have a license to carry a gun. I don’t know when we’re gonna start moving. I’ve gotta start with my kids and we gotta change our ways, to be better role models. And we gotta change ourselves. We’ve gotta talk to them, put some sense into them. They targeting us, but we know about it so there’s no reason to keep saying it’s their fault. You play a part in it. If you know there’s a reason, don’t give in to the hand, don’t be going around with big guns, don’t be going around shooting each other and letting them shoot y’all cause that’s just what they’re doing and they’re out to destroy us and we’re falling for it.”

—–Patrick Smith, father of the late Sylville Smith, the 23-year-old man shot after an arrest by a black police officer, igniting horrific riots in Milwaukee. The body camera video allegedly confirmed that Smith’s son had a gun in his hand when he was killed.

Smith’s last sentence makes no sense, but accurately reflects the false and divisive narrative African Americans have been indoctrinated to believe. Other than that and the Constitution-ignorant suggestion that guns should have been banned in Milwaukee, this is as balanced, sincere, passionate and perceptive a statement regarding police shootings in the black community as any I have read or heard.

Mr. Smith understands the principles of responsibility and accountability, and possesses the courage to accept the hard truths they compel. He deserves our attention, compassion and respect.

I hope his community is listening.

The Pitzer College “POC Only” Roommate Wanted Ad [UPDATED]

/ Jack Marshall / 42 Comments
"Now THAT's not racism. Why do you honkies have so much trouble understanding this?"

“Now THAT’s not racism. Why do you murderous honkies have so much trouble understanding this?”

A roommate-wanted notice posted on Facebook by a Pitzer College student has turned into yet another racial controversy. The student, along with two Pomona College students,  were seeking a fourth to join them in an off-campus house. The notice included “POC only” –person of color only—and this got them immediately called out as racists by some other students.

The ad is not racist. The text reflects a bias, as in “preference,” but that isn’t necessarily racism. Everyone has freedom of association in this country, or should. Human beings are more comfortable with those whom they perceive as being more like them. There is nothing wrong with that, but even if there is, it is human nature. There is nothing to be done about it, and there shouldn’t be anything done about it other than to help each other understand that tribalism is divisive and  a pre-programmed bias that we should fight, because getting past it makes us better neighbors, members of society and human beings.

Still, I don’t want to live with someone who doesn’t want to live with me, but who is going to accept me into a living situation based on a feeling of obligation. A house seeking someone else to share the rent isn’t a public accommodation, and there is no ethical principle demanding that the roommates can’t or shouldn’t specify the kind of individual they think would best complete the group. What if the other three are all white, and are seeking someone different from them to make the house more diverse? Is it equally offensive if the ad sought an athlete, or someone overweight (who wouldn’t make the three hefty roomies feel unattractive), or a good student, or an actor, or someone with a good sense of humor? Why? Such requirements are not a per se indication of anything but personal preferences, and personal preferences aren’t racism.

Is the “POC only” addendum unethical? Technically, it fails Kant’s “what if everybody does it?” test,  for if everybody did it, white students would have nowhere to live. There you have an example of where Kant’s Rule of Universality is worth musing about but often isn’t applicable. Some conduct is ethical despite Kant because the idea that it would become universal is too ridiculous. I want to live with a baseball fan. I don’t want to live with someone who is going to be listening to punk rock. If three roommates can look for a female fourth, or a gay fourth, or a Spanish-speaking fourth—and they can without nicking any ethics principles at all—then they can insist on racial or ethnic qualifications too.

Is it better ethics to be accepting of all equally? Sure it is. But not exhibiting exemplary ethics isn’t unethical. Again, it’s just human.

There is more to the story however. When some students commented on Facebook that the notice was racist, the replies from the students posting it and others expanded the controversy.

The Claremont Independent, a student paper that covers all five of the Claremont colleges (as well as two graduate schools), of which Pitzer is a member, published some of the comments, and they show the anti-white animus and double standards now roiling race relations in the U.S. Continue reading →

More Headline Ethics: Was This Apology Really Perfect? Or Even Necessary? No.

/ Jack Marshall / 13 Comments

United States' Simone Manuel leaves the pool after winning a women's 100-meter freestyle semifinal during the swimming competitions at the 2016 Summer Olympics, Wednesday, Aug. 10, 2016, in Rio de Janeiro, Brazil. (AP Photo/Martin Meissner)

Salon is hailing what it calls a “10” apology (that would be a Category One apology on the Ethics Alarms Apology Scale) from the San Jose Mercury News. My tireless ethics story scout sent the Salon account to me for a reaction, and here it is.

To be fair to Salon, though the headline is “An Olympic-sized gaffe: This newspaper’s apology, at least, gets a perfect 10,” the story doesn’t match the headline. (There’s a lot of that going around lately.) What the post said was,

“So let’s give a modest round of applause this week to San Jose’s The Mercury News, for at least hitting the bar of appropriate responsiveness after screwing up its initial coverage of Thursday’s historic night for the U.S. Olympic swim team.”

I find nothing incorrect about that assessment, if I accept the premise that the paper screwed up, which I only do mildly, if at all.  Salon’s angle is that there is generally a reluctance to apologize, so the San Jose Mercury News being willing to apologize is newsworthy all by itself. Actually, newspapers apologize all the time; not enough, but frequently.

So why is this apology so important? This is Salon, remember. It’s an apology for perceived racial insensitivity, which in Salon’s politically correct world is about the worst crime there is.

Last week,  31-year-old Michael Phelps scored his 22nd career gold medal in the 200-meter individual medley. The same night, Simone Manuel, 20, tied with Canada’s Penny Oleksiak in the 100-meter freestyle to win an individual gold medal in swimming, and set a new Olympic record. The Mercury News headlined the night “Olympics: Michael Phelps shares historic night with African-American.” 

The Horror.

To Salon, this headline demanded an apology, and the paper received some complaints. Why was it apology worthy? Here’s Salon, which first took offense that Manuel wasn’t named in the headline: Continue reading →