Month: July 2017

The Unethical Fine Print Game

/ Jack Marshall / 17 Comments

I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,”  and the lawyer shrugs and says, “Whatever you say! It’s your contract”?

WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran  a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages.  22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”

The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it. Continue reading →

The Unappreciated Home Depot Hero

/ Jack Marshall / 22 Comments

It’s more exciting than you think!

Ethics Alarms has dealt with this issue multiple times: an employee violates policy by intervening to prevent a crime or serious injury, and is fired for it.  In 2009, a bank teller named Jim Nicholson turned Batman and foiled a bank robbery, then was fired.. A would-be robber had pushed a black backpack across the bank counter to Nicholson and demanded money. The teller threw the bag to the floor, lunged toward the man and demanded to see a weapon. The robber sprinted for the door with Nicholson in pursuit. Eventually Bat-Teller  knocked the man  to the ground and held him until the police arrived.

The bank had to fire him. The episode could have gone wrong many ways, some resulting in bank customers and employees being injured or killed. Law enforcement repeatedly cautions against such conduct, and the bank’s policies were clear.

In other cases, no-tolerance makes no sense, as no-tolerance often does. In 2012, Ryan Young, then working in the meat department of a Safeway grocery store in Del Rey Oaks, California, witnessed a man beating a pregnant woman, apparently his girlfriend. Young told the man to stop, but when he continued with his assault, shoving and kicking her, Young jumped over his counter, pushed the thug away, and ended the attack.

Safeway fired him. So what would it have had Young do, stand there and wag his finger? This crossed into duty to rescue territory. Young did the right thing, and rather than blindly following a policy that didn’t fit the facts, Safeway should have realized that an exception was called for.. (Eventually public opinion and bad publicity forced Safeway to re-hire the hero). A similar scenario involved a lifeguard who violated his employer’s policy by saving a drowning man off a beach adjacent to the property where he was stationed. Jeff Ellis Management, an Orlando, Florida-based company, fired  21-year-old Tomas Lopez for daring to save a life pro bono, and was similarly pilloried by public opinion. Two lifeguards quit in support of Lopez, and he was also eventually offered his job back. Lopez told Jeff Ellis Management to get bent, or words to that effect. Continue reading →

Morning Ethics Warm-Up: 7/17/17 [UPDATED]

/ Jack Marshall / 80 Comments

Good morning, everyone!

1. President Trump is upset about an ABC-Washington Post poll that among other things indicates that 70% of those polled believe that he has acted “un-Presidential” since being elected. Several analysts have suggested that pollsters have slanted their polling pools toward Democrats (remember the election?), but my question regarding this poll is, “What the hell is the matter with the other 30%?”

How in the world could anyone conscious argue that Trump is “Presidential,” other than on the rather technical basis that since he’s President, what he does is by definition Presidential? It would be mighty nice if an aide, a Cabinet member, a daughter, a White House chef or someone would explain this to him, but I’m convinced: he doesn’t get it, he won’t get it, and what weve  seen is what we’ll continue to get.

2. ALERT! The forgoing was written after I was fooled by a fake news site, aided and abetted by Instapundit, which either was also fooled or linked to the site as its own joke.  Thanks to reader Tom Adams for being  more alert than I was and quickly flagging this.

And by the way, screw them. I’m taking off the link, and I will probably give the site an Unethical Website designation. The only hint that the site is a hoax site is the other stories (“GOP Adopts Christie’s Sad, Bewildered Face As New Party Mascot”), but I read dozens of stories every day, and if i stopped to check all the other boxed and highlighted pieces I would never have time to do my job. There is nothing on the home page designating the site as satirical. Unethical.

I apologize to anyone I led astray. Somebody alert Instapundit. I’m not speaking to it.  Here was the original post…

That said and mournfully accepted, he won, he’s President, and the fevered efforts to somehow turn back time (I would not be surprised to see a new Bon Jovi Direct TV ad on the subject)  by “the resistance,” the Democrats and the news media are profoundly anti-democratic. This is what Jake Tapper was alluding last week with his tongue stuck so firmly in his cheek that it almost broke through his face. “The conspiracy goes much deeper than anyone expected,” Jake Tapper said on his news segment “The Lead.” “We’re talking tens of millions of people involved in this secret plot to make sure Hillary didn’t make it into the White House and to prop up Donald Trump as the winner….It’s far more sinister than we thought.”

Yes, some conservative websites and others took Tapper’s pointed gag seriously. This tells us…

…how little trust CNN has left with many Americans..

…how dumb a lot of conservatives are…

…why broadcast news hosts and reporters, even fair and clever ones like Tapper, should avoid sarcasm, satire, or facetious statements, and stick to the facts.

…Jake Tapper should get away from CNN before its toxic culture ruins his reputation. Continue reading →

From The “Law vs Ethics” Files: PETA Chooses To Harm An Artist On Behalf Of A Monkey Who Couldn’t Care Less, And Judges Think It’s An Amusing Legal Condundrum

/ Jack Marshall / 26 Comments

“I’m baaaaack!”

When we last heard from  photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the  copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque.  In 2011,  Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.

Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an  accident, snapped by the monkey while it was messing around with his equipment?

About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair.  Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street  to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?

Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA)  brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder. Continue reading →

Comment Of The Day:”Comment Of The Day: “Comment of the Day: ‘From The Law vs. Ethics File: The Discriminatory Charlotte Pride Parade’”’

/ Jack Marshall / 14 Comments

This Comment of the Day is atypical, but I want to highlight it.

It’s doesn’t really matter what the original exchange was that prompted it, or who the other commenter was. What matters to me is that a respected, smart, articulate member of the colloquy here felt denigrated and mistreated, and that her experience as a commenter was diminished as a result. There may even have been a misunderstanding  involved; right now that is not my concern either.

I allow the discourse to get very intense here at times, and I will continue to. Lines are crossed—civility, insults, epithets, outbursts, personal attacks, mockery, blatant contempt–I cross them myself on occasion. Those who thrive here are remarkable, I have found, in taking rhetorical punches to the jaw and the gut and bouncing back without rancor or reduction in passion.

Nonetheless, the Golden Rule should never be too far out of mind on an ethics site. We can all make our points without being gratuitously nasty and mean. Stinging slapdowns can be fun–I enjoy them, though I save my worst for especially annoying visitors who I don’t care to have return—but they need to be kept to a minimum. Sincere, thoughtful, honest and perceptive commenters like Mrs. Q should never feel the way this post indicates that an exchange made her feel. Ethics Alarms is designed to be challenging and contentious, but not hostile. She hasn’t commented since this was filed; I hope that she has just been busy, because Mrs. Q  has been a unique and wonderful asset since she first dropped in a few months ago.

Let’s do better.

Here is Mrs. Q’s Comment of the Day on the post, “Comment Of The Day: “Comment of the Day: ‘From The Law vs. Ethics File: The Discriminatory Charlotte Pride Parade’”

The level of disrespect you have shown me, with the snark & unwillingness to do the research yourself, tells anyone reading that there is something inside you that is either terribly unhappy or unhealthy. I cannot in good conscience continue to deal with someone who is so vengeful. You’ve proven you’re incapable of responding in a civil manner towards me when I have not insulted you in any similar way. It’s been a pattern & if you & I were in person I’d simply walk away & pray for you.

My disability makes my time precious & my family comes before internet commenting. That you would make fun of my need to prioritize my family over responding online says so much more about you than me.

I was planning on answering your questions but your last little dig is my last straw. I’m sure you’ll say I’m weak or not answering you b/c I’m scared or stupid or a TERF or whatever disparaging term you can think of & that’s fine. I won’t be goaded into your games. Continue reading →

Morning Ethics Warm-Up: 7/16/2017

/ Jack Marshall / 47 Comments

 Isn’t it a lovely morning?

1. This isn’t the first post of the day: I woke up around 4 AM and couldn’t get back to sleep (“As My Guitar Gently Weeps” was playing over and over in my head, don’t ask me why, and images from the Red Sox 16 inning loss to the Yankees was giving me the night terrors), so I went to the office and wrote this post. Charlie Green, critic and friend, properly pointed out that my comment in passing that incorrectly alluded to rumors about Joseph P. Kennedy being a bootlegger was exactly what my  post was criticizing David Brooks for doing in his attack on the entire Trump family, going back generations, a truly ugly op-ed.

What I was sorely tempted to say was that I’m just an ethics blogger, trying to focus attention on ethics standards in a daily blog from which I receive no income and intangible professional benefits if any. I mange to get 2000-4000 words published every 24 hours, working in short bursts while I try to earn a living, run a business, do research and be as good a father and husband as I can be. I have no editors, no researchers (except generous volunteers) and my blog is not a “paper of record” for journalists, seen by millions and paid for by subscribers. Is it really fair to hold Ethics Alarms to the same standards as David Brooks and the New York Times?

Make no mistake: my own standards are that no typo, no misstated fact, no misleading argument, are acceptable on an ethics blog, or any blog, or anything published on the web. Charles was right: using an unproven accusation of long-standing (Until Charles flagged it, I thought the bootlegging charge was a matter of public record) undermines my case against Brooks. Nonetheless, Brooks has absolutely no excuse. This is all he does, he has all week to produce a column or two, and he has a staff.

I’ve also corrected my error within hours of making it. What are the chances that Brooks and the Times will ever admit that they intentionally impugned the character of Fred Trump using rumors and innuendo as part of their ongoing effort to demonize the President of the United States?

My guess: Zero.

2. The big story this morning appears to be O.J. Simpson’s parole hearing. Will he be paroled and released after serving just nine years of the three-decade sentence he received for his participation in a burglary? Assuming that it is true that O.J., now 70 and unlikely to stab any more ex-wives and innocent bystanders to death, has been a model prisoner, yes, that would be the ethical result. O.J. got away with a double murder—he will not be asked at the hearing, “Once you’re out, can we assume that you’ll renew your relentless hunt for the real killer?”—but he wasn’t put in prison for that crime. Officially, he’s innocent. His fellow burglars were all put on probation, while the judge threw the book at the former football star, presumably to exact a measure of societal revenge for Nicole and Ron. The sentence was unethical. I don’t feel sorry for O.J. at all; I’m glad he had to serve hard time, just as I would have been happy if he had been squashed by a meteor. Justice, however, demands that he go free.

The bastard. Continue reading →

Unethical Quote Of The Week: NYT Columnist David Brooks [UPDATED}

/ Jack Marshall / 30 Comments

“Biographies describe a man intent on making his fortune and not afraid of skating near the edge to do so. At one point, according to Politico, federal investigators found that Frederick used various accounting measures to collect an extra $15 million in rent (in today’s dollars) from a government housing program, on top of paying himself a large “architect’s fee.” He was hauled before investigating committees on at least two occasions, apparently was arrested at a K.K.K. rally in Queens (though it’s not clear he was a member), got involved in a slush fund scandal with Robert Wagner and faced discrimination allegations.”

—New York Times columnist David Brooks arguing that Donald Trump, Jr.’s conduct in holding the controversial meeting  with some Russians and Russian-Americans to acquire useful negative information about Hillary Clinton for his father’s campaign came about because his family is just no damn good, as shown by the conduct of Fred Trump, the President’s storied father.

Unlike some commentators, I have no ethical problem with Brooks’ basic thesis. Culture molds ethics, children are influenced by the conduct and values modeled by their parents, and I have pointed out too many times to  count that Donald Trump doesn’t know ethics from a merry-go-round, and appears to have no  conventionally functioning ethics alarms at all. It makes perfect sense that Donald Jr. would grow up similarly handicapped.

However, Brooks’ evidence that Trump family patriarch Fred Trump was corrupt and without scruples is all innuendo and supposition, and thus dishonest, incompetent, and unfair. Let’s examine the components of Brooks’ attack:

  • “federal investigators found that Frederick used various accounting measures to collect an extra $15 million in rent (in today’s dollars) from a government housing program, “

Were the accounting measures illegal? Apparently not. Was the  “architect’s fee”? I guess not: Fred wasn’t indicted or prosecuted. Being investigated by the feds does not prove or indicate wrongdoing. Maybe Fred was cheating; I wouldn’t be surprised. But Brooks has no facts to support that assumption, just a pejorative characterizations.

  • “He was hauled before investigating committees on at least two occasions…”

I love the “hauled.” Being asked to testify isn’t evidence of wrongdoing either. Continue reading →

The Unexposed Ethics Outrage On The Edges Of The Trump Jr. Meeting Controversy

/ Jack Marshall / 28 Comments

The Sergei Magnitsky Rule of Law Accountability Act  allows the U.S. President to impose visa sanctions and asset freezes on human rights abusers who kill, torture or violate the rights of human rights defenders, as well as government officials responsible for acts of significant corruption. The law and its various amendments that expanded its reach are at the heart of the sanctions currently being enforced against Russia. It was this law, and Russian efforts to blunt its force, that apparently was the real reason that Donald Trump Jr. was induced to meet with an indefinite number of Russians, Russian-Americans, and various individuals “connected” to the Russian government, the list of which is currently expanding like the roster of women allegedly raped by Bill Cosby.

The news media doesn’t seem to feel the Magnitsky Act is anything the public needs to know, perhaps because Donnie Jr. didn’t know much about it, if anything. The stories about his aborted meeting typically mention the Act briefly and without elaboration. They really don’t elaborate on Putin’s retaliation for the Act, which was to stop U.S. adoptions of Russian orphans. (I wrote about this indefensible conduct by Russia at the time, in 2012. The post had a grand total of eight comments. Five years was too long to wait for an update, and I’m sorry. Of course, we are supposed to have responsible and competent professional journalists to keep us informed. )Russia had been one of the primary sources of foreign adoptions by childless U.S. parents before 2012, when the Russian strong man retaliated against loving U.S. parents to show his annoyance with our government and his support of corruption at home.

It’s worse than that, though. The real victims of Putin’s retaliation are his nation’s own, innocent, most vulnerable children. There is virtually no domestic adoption in Russia, because parents can’t afford the children the have. There are lots of orphans though, because parents can give up infants they can’t care for, and the government is quick to remove children it believes are abused or neglected. Unfortunately, once these children are warehoused, there is no way out. The orphanages are underfunded and over-crowded. Once the children “age out,” they are sent to live in hospitals, clinics and other Russian institutions ill-equipped to care for them, and eventually dumped out into the street, where they often are abused or turn to crime. Continue reading →

Morning Ethics Warm-Up: 7/15/2017

/ Jack Marshall / 26 Comments

Gooooood Morning Ethics Alarms Readers in Vietnam (3, 501 views so far)!!

1. I am three new rationalizations and at least two Comments of the Day behind. Sorry.

2. One of the more creative efforts to make Donald Trump Jr.’s aborted opposition research meeting seem significant, sinister and one more step to the impeachment “the resistance” and the news media so, so desperately want is this article in the Washington Post, by a Rolf Mowatt-Larssen, the director of the Intelligence and Defense Project at Harvard’s Belfer Center, who was a director of intelligence and counterintelligence at the Department of Energy and previously a CIA intelligence officer in domestic and international posts. His analysis is a masterpiece of projection, supposition, unwarranted assumptions and exaggeration. Rolf’s argument is that the meeting is important because it constituted a “green light” to Russia that the Trump campaign approved of Russian meddling in the election, would not blow the whistle on it, would be open to more serious involvement, and would respond to such action with future quid pro quo favors. All of this, simply based on the willingness to meet on the hopes of acquiring dirt on Hillary Clinton.

It is useful a a microcosm of the entire Russia-Trump conspiracy theory, and indeed conspiracy theories generally. Applied to an agreement between a married man and a single woman to have drinks together, the fact that the man never tells his spouse about the meeting means that the man thought the meeting was illicit, was open to having adulterous sex with the woman, would react favorably to the woman’s subsequent efforts to undermine his marriage, and was a green light to the woman to escalate her seduction. But as in the case of Trump’s meeting, a married man having drinks with an unmarried woman is not illicit, no matter what Mike Pence thinks, and is not proof of any further actions or unethical intent no matter what conclusions the woman leaps to. There is also the disconnect that under Mowatt-Larssen’s analysis and his version of the Russian thinking, Donald Trump Jr was central to the Trump campaign rather than incidental. He also seems to think the right hand in this chaotic organization knew what the right hand was doing, which we know not to be true. Continue reading →

Now THIS Is An Untrustworthy Legislative Staffer…And Incidentally, We’re Doomed

/ Jack Marshall / 24 Comments

In March of 2016,  Stacey Plaskett, the delegate to the United States House of Representatives from the United States Virgin Islands’s at-large congressional district. entrusted her iPhone and its password to staffer Juan McCullum, who copied nude images and videos of legislator after offering to take the phone to an Apple store for repairs.

After he left Plaskett’s office, McCullum created a Hotmail account and “sent at least eleven e-mail messages to multiple persons, including politicians, members of the media, and other persons known to [Plaskett].” The e-mails contained “one or more of the nude images and videos,” according to this week’s indictment against McCollum. He also created a Facebook account, uploaded the visual content, and then Facebook-friended people in Plaskett’s district to spread the nude images far and wide.

A few questions: Continue reading →