Good Morning, John!
Sing us into the first item, would you?
1 “Is anybody there? Does anybody care?” Everywhere I go, lawyers are talking about the David Boies scandal, which I wrote about here. I haven’t seen much media discussion about it at all. We have now seen one prominent hack lawyer, Lisa Bloom, and one prominent, skilled and respected lawyer, Boies, demonstrate high profile professional conduct that should receive serious sanctions from their profession, and it appears that most of the public and the media neither knows this nor cares.
Bloom is just a venal, incompetent, bad lawyer. The real crisis is when top lawyers blithely engage in wildly unethical conduct in a high profile case, but I doubt the public sees the difference. Very little commentary on Boies’s betrayal of the New York Times focused on the throbbing black-letter ethics violation involved. Today, a front page story in the New York Times about Black Cube, the sinister investigative crew hired by Boies to gather dirt on the Times before it blew the whistle on Harvey Weinstein completely missed this crucial element of the story. It also makes it near-certain that no one will read the report who need to know how poorly legal ethics are enforced.
Here’s the headline in the print edition: “Sleuths for Weinstein Push Tradecraft Limits.” Tradecraft? Online: “Deception and Ruses Fill the Toolkit of Investigators Used by Weinstein.” Nowhere in the article are readers informed that lawyers are forbidden, without exception, from using any contractor that regularly uses deception.
Here is the kind of thing Black Cube specializes in, from the Times piece:
“Earlier this month, a former hedge fund employee was flown from Hong Kong to London for a job interview. Around the same time, a current employee of the same Toronto hedge fund was also flown to London for interviews. The company courting them was fake. Its website was fake. There were no jobs to be had, and the woman who set up the interviews was not a recruiter but an agent working for an Israeli private investigative firm.
This was not an episode of “Homeland” or the latest “Mission: Impossible” installment. Interviews and court papers show that these deceptions were part of a sophisticated and expensive investigative operation. The objective, according to one filing, was to gather proprietary information held by the hedge fund. The agent worked for Black Cube.”
Every single jurisdiction in the United States declares in its legal ethics rules, usually in the rule about misconduct, 8.4 (bolding mine):
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…
How much clearer can it be? It is unethical for a lawyer to employ someone or an organization that he or she knows routinely and reliably engages in “dishonesty, fraud, deceit, or misrepresentation.” Yet that’s the only reason anyone hires Black Cube. Conclusion: Boies breached a major ethics requirement, perhaps the most serious one there is. And why? Because a client paid him to.
The Times, in a 15oo word story, never explains this or even reports it. Here is the closest Matthew Goldstein and William K. Rashbaum come: “Lawyers are also required to closely monitor private investigators to make sure they do not break the law or engage in inappropriate deceptive behavior.” The word “monitor” is absent from any of the rules or comments on them relevant to Boies’s hiring of Black Cube, and the statement is risible in the context of it. He hired a black ops investigative firm! The only reason anyone hires such a firm is because they are specialists in dishonesty, fraud, deceit, and misrepresentation. How, exactly, is a lawyer going to “monitor” the activities and operations of such a group? Why would Black Cube ever think that it was not supposed to do what everyone else hires it to do?
Rule 5.3, regarding non-lawyers who work for lawyers, requires that
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer requests or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer has direct supervisory authority over the person, or is a partner in the law firm in which the person is employed, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Ah. So a lawyer who hires a hit man is required to say, “Of course, you can’t kill anybody.” A lawyer hiring Black Cube and saying “Don’t do anything I can’t do” is exactly as ridiculous, and would never happen. Hiring an organization like Black Cube is an ethics violation, per se.
2. Honey Nut Cheerios Ethics. From a much better and more competent New York Times article this week—but to be fair, it was about something the public cares about: breakfast cereal:
General Mills refers to cereals like Honey Nut Cheerios as “presweetened” — putting the sugar, brown sugar and honey into your cereal so you don’t have to. Back in 2009, the company made news by announcing an initiative had already been underway to drop the sugar figure into single digits in such cereals marketed to children. In the last decade or so, Honey Nut Cheerios has fallen to nine grams of sugars per serving, from 11. Or so it seems.
I undertook a review of highly sensitive corporate documents. And by that, I mean I looked at pictures of old cereal boxes on eBay, because apparently there’s a market for vintage, flattened cereal boxes. I found a box from 2003 that showed the serving size of Honey Nut Cheerios to be one cup, weighing 30 grams and having 11 grams of sugars. Today, a serving is three-quarters of a cup, and just 28 grams, with nine grams of sugars. The serving size of regular Cheerios remains one cup. If Honey Nut Cheerios still had a one cup serving size, the sugar content would be in the double digits.
3. Now THIS is a scary tweet…I think I’ve made it clear that I’m not going to criticize every dumb tweet the President issues, or even most of them. 95% of his tweets shouldn’t be made; many of them undermine his effectiveness and authority, as well as his office. Most of the tweets fuel the cultural malady his election guaranteed, as I wrote more than two years ago. I know the Trump Hate Machine feels that going nuts over every tweet and claiming that all actions of the President great and small are impeachable is its steady-state duty. MSNBC’s Lawrence O’Donnell, asked in an interview why he has never said a word on his news show about the current trial of a veteran Democratic Senator on bribery charges, seriously answered that there was no time for him to cover such things, because criticizing the President required his full attention every day. In contrast, my pointing out that the same unalterable Trump conduct is unethical when 1) everyone knows that already and 2) it’s not going to change, really isn’t an efficient use of my time. There are obviously readers who literally can’t get enough Trump bashing: they read the New York Times op-eds, they groove on CNN, they froth at the mouth on Facebook in their personal Trump Hate bubble, and they go to bed with a smile after watching Stephen Colbert. Then they chide me for not piling on. Since everything the President does is called unethical, my job is to point out when his conduct isn’t unethical, and when it is especially unethical, harmful, presidential, or stupid.
This tweet was in the latter category:
Do you think the three UCLA Basketball Players will say thank you President Trump? They were headed for 10 years in jail!
The comment followed Trump’s negotiated release of the three UCLA basketball-playing morons who got themselves arrested in China after shoplifting some sunglasses. Trump’s message is petulant and childish. It is condescending and pathetic. I also reveals the President’s insecurities and desperate, indeed pathological, craving for credit, praise, and popularity. It projects weakness, and reveals a near complete ignorance of ethics. Using his influence and trip to China to free three citizens is his job as President, and it was also the right thing to do by any calculation. Being ethical should not require psychic rewards other than the realization that one has done good.
This is the tweet of a leader who demands sycophants and bootlickers. Thus does President Trump toss away, piece by piece, every bit of the precious respect that is essential to him succeeding at his job. Yet he can’t comprehend that this is what he is doing.