Month: March 2017

Chicago Justice, Rights, And Pop Culture Malpractice

/ Jack Marshall / 8 Comments

Dick Wolf, the “Law and Order” creator, is in the process of taking over NBC prime time. He now has four linked dramas dominating the schedule—“Chicago Med,” “Chicago P.D.,” “Chicago Fire,” and the latest, “Chicago Justice.” (Soon to come, at this rate: “Chicago Sanitation,” “Chicago Pizza,” and “Chicago Cubs.”)

Yesterday was Episode #2 of “Chicago Justice.” The story in involved a “ripped from the headlines” riff on the Brock Turner case, where a woman was raped while unconscious and the rapist received a ridiculously lenient sentence. In Wolf’s alternate universe, however, the judge was murdered, and the rape victim and her ex-husband were suspects. There was another wrinkle too: one of the prosecutors had a close relationship with the dead judge, and was with him right before he was killed. She was going to have to be a witness, and her colleague and supervisor, prosecuting the case, asked her if she had been sleeping with the victim. Such a relationship would have been an ethical violation for the judge, and at least a pre-unethical condition for the prosecutor, requiring her to relocate to a Steven Bochco drama, where lawyers have sex with judges all the time.

The female prosecutor indignantly refused to answer the question. After the case was resolved—I won’t spoil it, but the name “Perry Mason” comes to mind—the two prosecutors made up over a drink. She said that she would have never slept  with “Ray” (the dead judge–when he was alive, that is), but that she remembered reading “in some old document” that we all had “unalienable rights,” she believed one of them was “the right to be respected by your fellow man.”

There is no “right to be respected.” The Declaration of Independence, the “old document” she referenced, lists three rights only, though they are broad ones: life, liberty and the pursuit of happiness. None of those encompass a right to be respected. The speaker, Anna Valdez (played by Monica Barbaro, a Latina dead ringer for Jill Hennessey, who played the equivalent “Law and Order” role for many years), is a lawyer, and should understand what a right is. It is a legally enforceable guarantee of an entitlement to have something, seek or obtain it,  or to act in a certain ways. As a lawyer, she must understand that this is different from what is right, just or honorable. Her statement, coming from the mouth of a character with presumed expertise and authority, misleads much of the public, which is constantly getting confused over  the difference between Jefferson’s use of “rights” and what is right. So do journalists and, sadly, too many elected officials. Continue reading →

20 Ethics Observations On The President’s Charge That Obama Tapped His Phones

/ Jack Marshall / 49 Comments

In the first week of March, in the midst of the over-blown flap regarding Attorney General Jeff Sessions’ two meetings with the Russian ambassador, President Trump issued arguably his most explosive  tweet yet:

“How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!.

Later, he  tweeted,

“I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!”

It has been more than a week, and we know only a little more about what prompted this extraordinary accusation than we did then. However, there are some relevant ethics point to be made. Here we go…

1.  It is irresponsible and unpresidential to issue tweets like this. It is also unfair. If the Trump administration wants to make a formal complaint, charge or indictment, or announce an investigation, it should be made through proper channels, not social media. That stipulated, he will not stop doing this, and at some point we will have to accept it. Is this how Presidents communicate? It is now.

2. Thus the tweet is unethical even if it is true. However, the fact that it is unethical, or that Trump the Liar sent it, doesn’t mean it is untrue. An astounding number of pundits and journalists have made exactly that assumption, proving their bias against the President and their knee-jerk defensiveness regarding former President Obama.

3. The tweet cannot be called a “lie,” and anyone who does call it a lie based on what is known is revealing their confirmation bias.

4. One more point about the tweet itself: the fact that it has a typo and the level of articulation of the average 9th grader is itself an ethics breach. The President should not sanctify carelessness, or seem to embrace it. He is a role model.  Nor should a significant charge be written in haste, as this obviously was.

5. There seems to be a significant possibility that the President was trolling. Having had enough of the months long, absolutely evidence-free news media and Democrat innuendos that his campaign was coordinating election tampering with the Russians, he may have decided to make a sensational, unsubstantiated charge of his own to get the Russian hacking speculation off the front pages. If it was trolling, it was excellent trolling. The McCarthyism purveyors  deserved it; the accusation was a deft tit-for-tat,  one of the President’s favorite rationalizations.

6. As an example of what Trump has been and is being subjected to, we have Rep. Keith Ellison, vice-chair of the DNC.  He told Alisyn Camerota on CNN’s “New Day last week,”

“This is stunning when you think about it. Far worse than Watergate, when you believe a hostile foreign power engaged in an attempt, and with the collusion of the sitting administration to manipulate an election.”

By sheerest moral luck, Camerota that day was feeling ethical, so she actually corrected a Trump-basher from her own party, said, “Well you don’t know that,” and pointed out that there is no evidence of collusion.

“I’m not saying there was collusion, I’m saying those meetings indicate that there could be, and I think that needs to be investigated,” Ellison then said, immediately after saying there was collusion.

These are awful, vicious, conscience- free people who subcribe to total political war and the ends justify the means. They are trying to bring down an elected government without winning an election. Even that does not justify treating them unethically, BUT… Continue reading →

The President’s Most Unethical Appointment

/ Jack Marshall / 17 Comments

Now that we know the whole story, it’s Michael Flynn, the erstwhile National Security Advisor, hands down. That’s amazing, when one considers some of the other appointments, like the spectacularly unqualified Ben Carson, Rick Perry, appointed to lead an agency he has previously said should be eliminated (and couldn’t remember its name); and the embarrassingly unethical Tom Price, the HHS head.

Earlier this week, Flynn, who was forced to resign February 13, for lying to Vice-President Pence, filed  with the Justice Department revealing that he had done work from August to November “that could be construed to have principally benefited the Republic of Turkey.”  That work had netted Flynn’s firm more than a half-million dollars, and made Flynn legally obligated to register as a foreign agent.

On Election Day, Flynn’s op-ed was published  on The Hill  praising Turkish President Erdogan as an ally against ISIS. On November  18,  Representative Elijah Cummings, the ranking Democrat on the House Oversight Committee, wrote a letter to  Pence inquiring about Flynn’s ties to the Turkish government. When the White House  confirmed that the Trump transition team knew before Inauguration Day that Flynn might be required to register as a foreign agent. it was stating the undeniable.

How  could  someone like General Flynn ever be appointed national security adviser? White House spokesman Sean Spicer (speaking of bad hires) has made the silly excuse that Flynn’s status as a registered foreign agent didn’t mean he had a disqualifying conflict of interest. A  top national-security aide who was under contract to lobby for a foreign government deeply involved with U.S. Middle East policy? Outrageous! Outrageous, and guaranteed to spark a scandal as soon as this became public.  Not only was this a bad appointment, an incompetent appointment, an irresponsible, reckless and dangerous appointment, it was a really stupid appointment. Continue reading →

Catching Up On “Instersectionality,” And Finally Paying Attention

/ Jack Marshall / 175 Comments

There are more than 22,000 tags used here, even if you eliminate the duplicates due to my typo problem, and still  “intersectionality” is not among them. I have seen the term, mostly recently, but only in contexts that led me to dismiss it as leftist, scholarly jargon, the kind of word radicals throw around to confuse their opposition and make people think they are intellectual when they are really arguing nonsense. I wasn’t wrong: it is one of those words. Still, it is a useful one, because it helps explain several phenomena of great importance, which can be collectively described as the increasing totalitarian tilt of the political left, especially since the election of Donald Trump. I should have realized the importance of the word long  ago and investigated: I apologize. Bias makes me  stupid too.

Over at New York magazine, Andrew Sullivan had one of his lucid moments—when he can bypass his anger at anti-gay attitudes (the bias that makes HIM stupid), Sullivan can be brilliant—, and delivered a perceptive essay about “intersectionality,” beginning with the recent disgrace on the Middlebury College campus, where a student protest designed to prevent sociologist Charles Murray from speaking turned into a violent riot, injuring a professor. Do read all of Sullivan’s article, but here are some key passages:

[W]hat grabbed me was the deeply disturbing 40-minute video of the event, posted on YouTube. It brings the incident to life in a way words cannot. At around the 19-minute mark, the students explained why they shut down the talk, and it helped clarify for me what exactly the meaning of “intersectionality” is.

“Intersectionality” is the latest academic craze sweeping the American academy. On the surface, it’s a recent neo-Marxist theory that argues that social oppression does not simply apply to single categories of identity — such as race, gender, sexual orientation, class, etc. — but to all of them in an interlocking system of hierarchy and power. At least, that’s my best attempt to define it briefly. But watching that video helps show how an otherwise challenging social theory can often operate in practice.

It is operating, in Orwell’s words, as a “smelly little orthodoxy,” and it manifests itself, it seems to me, almost as a religion. It posits a classic orthodoxy through which all of human experience is explained — and through which all speech must be filtered. Its version of original sin is the power of some identity groups over others. To overcome this sin, you need first to confess, i.e., “check your privilege,” and subsequently live your life and order your thoughts in a way that keeps this sin at bay. The sin goes so deep into your psyche, especially if you are white or male or straight, that a profound conversion is required….

Like the Puritanism once familiar in New England, intersectionality controls language and the very terms of discourse. It enforces manners. It has an idea of virtue — and is obsessed with upholding it. The saints are the most oppressed who nonetheless resist. The sinners are categorized in various ascending categories of demographic damnation, like something out of Dante. The only thing this religion lacks, of course, is salvation. Life is simply an interlocking drama of oppression and power and resistance, ending only in death. It’s Marx without the final total liberation.

It operates as a religion in one other critical dimension: If you happen to see the world in a different way, if you’re a liberal or libertarian or even, gasp, a conservative, if you believe that a university is a place where any idea, however loathsome, can be debated and refuted, you are not just wrong, you are immoral. If you think that arguments and ideas can have a life independent of “white supremacy,” you are complicit in evil. And you are not just complicit, your heresy is a direct threat to others, and therefore needs to be extinguished. You can’t reason with heresy. You have to ban it. It will contaminate others’ souls, and wound them irreparably….Murray’s old work on IQ demonstrates no meaningful difference between men and women, and Murray has long supported marriage equality. He passionately opposes eugenics. He’s a libertarian. But none of that matters. Intersectionality, remember? If you’re deemed a sinner on one count, you are a sinner on them all. If you think that race may be both a social construction and related to genetics, your claim to science is just another form of oppression. It is indeed hate speech….This matters, it seems to me, because reason and empirical debate are essential to the functioning of a liberal democracy. We need a common discourse to deliberate. We need facts independent of anyone’s ideology or political side, if we are to survive as a free and democratic society. Trump has surely shown us this. And if a university cannot allow these facts and arguments to be freely engaged, then nowhere is safe. Universities are the sanctuary cities of reason. If reason must be subordinate to ideology even there, our experiment in self-government is over.

This outburst was apparently too much for Andrew, his old libertarian/conservative persona emerging full-force after a long hiatus, so his piece suddenly shifts into a standard issue anti-Trump rant. It’s fascinating to see, because Andrew apparently hates the President so much that he can’t perceive that the same antipathy created by “intersectionality” that he rebuts regarding Murray (after all, Sullivan is friends with Murray), applies to the President (whom he detests) as well. The proof is how Trump’s misogyny and opposition to illegal immigration has led the Left to presume that he is racist, classist and homophobic as well. He’s not. But, to quote Sullivan against himself, “But none of that matters. Intersectionality, remember? If you’re deemed a sinner on one count, you are a sinner on them all.”

Thus Sullivan pivots to blaming all of the social and political tilt he correctly deems as dangerous on Donald Trump, and in doing so, he becomes the partisan hack he so often appears to be: Continue reading →

KABOOM! Unethical Quote Of The Month, And Maybe Hypocrisy Of The Century: Nancy Pelosi

/ Jack Marshall / 33 Comments

I’m stunned. I honestly did not think it was possible for  Nancy Pelosi to surprise me any more, as my expectations for her utterances are so low as to be subterranean. I certainly didn’t think she could make my head explode again. Pelosi accomplished the impossible, however, by including this astounding line in a letter to Paul Ryan regarding a GOP replacement for the Affordable Care Act. She actually wrote…

“The American people and Members have a right to know the full impact of this legislation before any vote in Committee or by the whole House.”

KABOOM!

1. This is the same woman whose most famous quote, regarding the ACA, is “We have to pass the  bill so that you can find out what’s in it….” 

2. The law the Republicans want to replace with something the “American people and Members have a right to know the full impact of … before any vote in Committee or by the whole House” was one that almost no Democrats read before voting for it, so even they didn’t understand its “full impact.”

3. The ACA passed in this manner included a mandate that Pelosi and her party swore was not a tax but a penalty, and then when the law was challenged argued to the Supreme Court that it wasn’t a penalty, but a tax.

4. The President of the United States who signed the ACA materially misrepresented the impact of the law repeatedly by stating that it allowed Americans who wanted to keep their current health plans to do so.

How dare Nancy Pelosi make that demand? How astoundingly hypocritical, overflowing with gall, and immune to self-awareness can any human being be? This is like Bill Clinton lecturing Donald Trump about avoiding intimate relations with subordinates, but worse.

Of course she’s right, but Pelosi is the last person on earth, literally the last person, entitled to demand transparency regarding health care bills. How can she say something like this? Is she senile? Is she trying to look ridiculous? Is she so completely devoid of integrity that she can advocate the exact opposite of her own conduct and that of her party without a twinge of irony or shame? Does she believe that her followers are so blind, stupid an unable to hold a memory in their heads that they won’t see how offensive this is, coming from her?

Are they that blind and stupid?

A Tale Of Two Hotels: Same Problem, Different Responses

/ Jack Marshall / 8 Comments

A couple of weeks ago, I stayed at Atlanta’s sumptuous Lowe’s hotel downtown. I like the hotel a great deal, but room service at breakfast is ridiculous: essentially you might as well order the deluxe pig-out, which could feed a family of three. The way the menu is set up, you pay the over $25 for any other choice and get half as much food. This is primarily because a pot of coffee costs more than ten dollars, and only the deluxe breakfast has coffee included.

Even though all expenses were being paid by the client, I hate this, so I decided to order a couple of muffins (still about $15 without coffee, not counting tax and the automatic service charge) and tolerate the free instant coffee that is  offered by the little single cup machines in the room. I was a good plan, but the damn thing wouldn’t work. The water didn’t heat. Annoyed (no coffee, 6 AM, brilliant money-saving scheme foiled), I called the front desk to complain. They sent up a young man—he arrived in about 15 minutes, after the continental breakfast—who fiddled with the coffee machine. It was obvious that he had never seen one before.  Eventually he gave up, apologized, and left to get another one. By the time he returned, I had finished most of the muffins, but I made a cup of (lousy) coffee anyway.

Last night, I had to stay in a hotel to make sure that D.C.’s $%^&$#@! Rock and Roll Marathon didn’t stop me from getting to my early morning presentation to new D.C. bar members. The streets around the venue were blocked off, and weird traffic was expected; hard experience dictated the expense was the better part of valor. There was breakfast provided at the bar event, so all I needed was some coffee in my room to wake me up sufficiently so that I didn’t wander onto 14th street and die.

This time, the hotel was the J.W Marriott, and again the little one cup coffee machine didn’t work. Just like in Atlanta, I called the front desk, sounding even more annoyed about the inconvenience than the before. (This was unfair, of course; there is no reason the Marriott should inherit my upset with Lowe’s.) The response from the desk was identical after I described my plight: she would send someone up to my room to check on the machine. Great.

When the knock came and I opened the door, I was greeted by the head of guest services, in a uniform. He had a new coffee machine with him, and also handed me a bag containing two large cups of Starbuck’s coffee, ten creamers, napkins, utensils, and two hot pastries. He replaced the machine after confirming that it was broken, apologized profusely, and took his leave.

Wow.

Now that’s service.

Now THIS Is As Close To Genuinely Frivolous Lawsuit As You Are Likely To See…And Naturally, It Is An Attack On The President

/ Jack Marshall / 5 Comments

Publicity stunt? Whatever would make you think this lawsuit is a publicity stunt???

As we have discussed here before, though we often complain of frivolous lawsuits,  even the worst law suits seldom meet the technical standard of what is “frivolous.”

The D.C. bar’s ethics rules state that…

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

This provides what I sometimes call “stupid lawyer” protection, on the theory that a stupid lawyer may have a sincere belief that an absurd action has a chance of prevailing, thus avoiding the rule’s rock bottom standard for “frivolous.” The recently filed lawsuit in Washington, D.C. against President Trump and the local Trump hotel, however, may be that rarest of legal birds, the truly frivolous lawsuit.

The married couple that owns  the Cork Wine Bar in Washington claim that the Trump International Hotel and the  restaurants similarly located in the Old Post Office building have an illegal advantage over other nearby establishments, like theirs, because of the association with the President.  Essentially the law suit claims that it’s all so unfair.

In addition to the res ipsa loquitur factor, which is to say that the lawsuit screams abuse of process to harass the President, we also have these suspicious factors: Continue reading →

A Very Bad Month For Price Waterhouse Coopers

/ Jack Marshall / 14 Comments

Earlier this month, Big Four accounting firm Price Waterhouse Coopers sustained a high-profile hit to its reputation when  the senior accountants the firm sent to ensure the integrity of the Oscars broadcast, a job the firm has had for more than half a century,  couldn’t manage to hand out the correct envelope at the televised ceremony’s surrounding.  Now it looks like the chaos that this botch created was a prelude to far, far worse.  For years, federal investigators have been scrutinizing Catapillar’s overseas tax affairs, examining the complex maneuvers involving billions of dollars and one of the company’s Swiss subsidiaries.

Now, a report commissioned by the government accuses the equipment manufacturing giant of carrying out a massive tax and accounting fraud involving billions of dollars. And the accounting firm Caterpillar employed to perform its audits?

The envelope please?

You guessed it.

The report, part of a wide investigation being undertaken by the United States attorney’s office for the Central District of Illinois, the IRS and the Inspector General of the F.D.I.C., thus far is neither public nor made available to Caterpillar for review.  It  describes an illegal company strategy to bring in billions of dollars from offshore affiliates while avoiding federal income taxes.  Leslie A. Robinson, an accounting professor at the Tuck School of Business at Dartmouth College and the author of the report, concluded that…

“Caterpillar did not comply with either U.S. tax law or U.S. financial reporting rules. I believe that the company’s noncompliance with these rules was deliberate and primarily with the intention of maintaining a higher share price. These actions were fraudulent rather than negligent.”

Dr. Robinson’s 85-page analysis, based on publicly available and internal financial data from Caterpillar as well as bank data tracking wire transfers from Switzerland into the United States, found that Caterpillar brought back $7.9 billion into the U.S. structured as loans, over and beyond the income that had already been taxed overseas. The company failed to report those loans for tax or accounting purposes, though under U.S. law those profits would be subject to federal taxes.

For example, the professor  found  correspondence between the company and the Securities and Exchange Commission in which Caterpillar said it had $2.5 billion  in income eligible to be brought to the United States tax-free. The company, she wrote, did not have “anywhere near” that much money still available to be brought in tax-free.

No charges have been filed yet. Last week, federal agents raided three Caterpillar buildings near its headquarters in Peoria, Ill., as part of the investigation. Caterpillar said it was cooperating with law enforcement, but denied wrongdoing. The Internal Revenue Service is currently seeking more than $2 billion in income taxes and penalties on profits earned by the Swiss unit.

Continue reading →

Ethics Train Wreck Update: Now The Dictionary People Have Boarded The Post-2016 Election Freakout

/ Jack Marshall / 26 Comments

It’s really depressing. I did not expect to see so many professions and professionals debase themselves and their ethical principles because they couldn’t deal with the results of a presidential election. . Historians. Judges. Scientists. Professors. College presidents and administrators. Performing artists. Intelligence community professionals. Judges. Journ–well, no, that one wasn’t a surprise.

My own profession, legal ethicists, booked a seat on the ethics train wreck, a development that was profoundly disappointing. Wrote one member of the profession who has remained clear -eyed while keeping his integrity, Steve Lubet in Slate,  “As a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent…The professors no doubt have faith in the professionalism of the District of Columbia Office of Disciplinary Counsel, but the bar authorities in other states may not always be reliably even-handed or apolitical. It is hardly inconceivable that lawyer discipline might somewhere be used as a weapon against disfavored or minority candidates, or as a means to squelch protest movements and insurgent campaigns. In the 1940s and 1950s, suspected Communists and alleged “fellow travelers” found their law licenses in jeopardy in many states. In the 1960s and 1970s, civil rights lawyers were hauled before the bar authorities in the South. The complaint against Conway is an unfortunate step back in the direction of using lawyer discipline against political enemies….”

Bingo.

Now “America’s dictionary,” Merriam-Webster, has decided that it is within its mission and purview to attack and mock the President of the United States..

Almost immediately after his election, the dictionary’s editors began trolling Trump and his administration, defined, by Merriam-Webster, as “to antagonize (others) online by deliberately posting inflammatory, irrelevant or offensive comments or other disruptive content.”

The website Acculturated has observed that on social media and its website Merriam-Webster has ridiculed the President  “for his every spelling mistake, grammatical error, and verbal gaffe. In honor of the election, they changed their header photo to a picture of a German word defined as the “collapse of a society or regime marked by catastrophic violence and disorder.” Then they highlighted what they claimed was the word most frequently looked-up, “fascism.” On Inauguration Day, they tweeted “Welp,” a word that conveys dismay or disappointment. The company also derided Betsy DeVos, Sean Spicer, Steve Bannon, and, of course, Kellyanne Conway.

This, needless to say, is not their job, their mission, or responsible professional conduct. It is, as it is for the other derailed professionals, smug virtue signalling and tribalism. Acculturated again:

[T]he dictionary’s editors are clearly partisan. They didn’t harass Hillary Clinton, and they don’t needle sports stars, celebrities, or, well . . . anyone else like they needle the President and his people.Theoretically, even that could be okay—a good, playful, occasional joke from the dictionary could have the whole country laughing. But if you mock one person too often, you start to reveal a pattern. If that pattern persists, the fun and games lose their light-hearted feel, and begin to betray bias instead.

Ya think???

Continue reading →

Coincidence, Ethics Violation, Or A Playground Rhyme Come True: The Lawyer’s Burning Pants

/ Jack Marshall / 17 Comments

I love this story!

 Miami defense lawyer’ Stephen Gutierrez shocked onlookers when his pants burst into flames mid-trial as he was addressing the  jury. Gutierrez was defending a client  accused of intentionally setting his car on fire in South Miami. Yes, it was an arson case. He had just begun his closing argument when smoke started billowing from his pants pocket.

By sheer coincidence I’m sure, the lawyer was arguing that the defendant’s car spontaneously combusted—just like the lawyer’s trousers!— and was not intentionally set on fire. Observers told police that Gutierrez had been fiddling in his pocket right before his pants ignited. He ran out of the courtroom, and the jurors were ushered out as well. After  Gutierrez returned unharmed, he told the judge that  it wasn’t a staged  demonstration gone horribly wrong, but just a coincidence. A faulty battery in his e-cigarette had caused the fire.

In an arson trial.

During closing argument.

Where the defense was “spontaneous combustion.”

Okay!

Jurors convicted Gutierrez’s client of second-degree arson anyway. Miami-Dade police and prosecutors are now investigating the episode, and Miami-Dade Circuit Judge Michael Hanzman is deciding whether to hold him in contempt of court.

Comments: Continue reading →