Morning Ethics Warm-Up, 11/16/17: Keeping the Public Ignorant About Unethical Lawyers, Sugar Lies, And A Terrible Trump Tweet…

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.

27 thoughts on “Morning Ethics Warm-Up, 11/16/17: Keeping the Public Ignorant About Unethical Lawyers, Sugar Lies, And A Terrible Trump Tweet…

  1. Say something critical of David Boies? Get serious. He represented Al Gore and took down Prop. 8. Of course he’s represented IBM and American Express, but hey, everybody’s entitled to a wine collection and an ocean going yacht. The guy’s a god.

  2. # 3 If nothing more, this has gotten the monumentally insufferable Ball family patriarch (LaVar) to STFU, if but for short duration.

    These kids don’t realize how this could have gone catastrophically sideways in no time flat.

    UCLA has suspended them indefinitely, the NCAA has yet to weigh in.

    As far as that goes, who could possibly say it better, or with more conviction, than Judge Elihu Smails:

    Dipshit extraordinaire (ESPN’s Michael Smith) claims these “scared” players are being used as political pawns and have learned their lesson.

    Honestly, does that mean it’s in the rear view, so let’s “play ball?”

    • Morons. My wife and I were taken to one of those stores for tourists in Beijing. Her work friend who took us there (who is Taiwanese American from LA) said to us before he left us in the store: “Two things you need to know: Number one- everything in here is forged, none of the brands are authentic. Number two- never, I repeat never, pay more than twenty percent of the original asking price.”

      I had the time of my life. It was like being an eleven year old in some sort of Negotiator’s Disneyland. I won every single negotiation with ease. My wife had never seen me more giddy.

      And these dopes couldn’t even pay twenty cents on the dollar. They had to act as if they were home at Macy’s and the AD will pay off the cops. Idiots.

        • Personally, I think a fair amount of the stuff is genuine. It just fell off a truck on the way to being shipped to the brand name company. Or they just do extra runs for personal/domestic consumption. The Packers’ jersey I bought for my sister-in-law in Pulaski, Wesconsin sure looked, and felt, like the real deal to me. I’m still wearing my Tom Ford (who knows?) glasses I got (including progressive lenses reverse engineered to my prescription) for 40 bucks. Personally delivered the next day to our hotel all the way across town.

          • Pulaski??? HeyZeus Alou, THAT is one…um…traditional little corner of the known Universe!

            Mercy me, used to have a lot of clients up that way, just down the pike from Kraków & Zachow & not far from TitleTown….if you’re only counting miles…

            Them there Poles were as hard-headed as the day is long.

            The biggest, and arguably most beautiful, building in town?

            The Assumption BVM Catholic Church, you can see it from quite a distance.

            • You betcha. My sister-in-law’s son got married in that there church. Just one of the many weddings we’ve paid for. If there’s a wedding the family, my wife will pay for it. I’ve found Wesconsin a hard place to love, much as I’ve tried. Industrial scale butter production is not that nice a thing to see. Maybe I need to visit Madison and Spring Green. Lake Geneva was nice when I was there as a kid and fifteen or so years ago when I was there on a caper for a client And then there is Favre’s Steakhouse in Melwaukee.

              • There’s a LOT to like, other than it is my state of domicile.

                Get west into the Driftless Area (Kickapoo River Valley) or north (Carr Valley & the best Cheese Factory in the known Universe) of Spring Green, which has far too many avant garde Lefties & galleries.

                And get anywhere other than Lake Geneva (too many FIBs)

                North of Arbor Vitae is where I start feeling it; the real Northwoods.

                The Wesconsin Dells, and its northern counterpart Eagle River, are water parks, fudge, and “Roughing It” in style.

                FWIW, I spent a couple of months in Lake Havasu City (after getting chased off the NAU campus in Flagstaff) back in the day (1974). Me & my ne’er-do-well pals are the reason they cut the hedge maze at London Bridge Park down to waist level.

                • As an east coast girl now living in Wisconsin, I can truly say that I think Wisconsin is America’s best kept secret. I and my kids LOVE it here. The Chippewa Valley has an exploding art and music scene; add in the phenomenal public school systems, top notch medical care, world class fishing, winter sports, a low crime rate, affordable housing, farm to table food, kind and generous people…. I happen to live on the state line. I can see Minnesota from my house. That puts me within 30 minutes of the Twin Cities. Yeah, I’ll take it.

                  • East coast? You mean Bayside, Port Washington, or Kewaunee…?

                    Reckon that’d put you in either St. Croix or Pierce county, and up on a ridge.

                    My territory used to be the entire state & I’ve been in every little nook-n-cranny you could imagine.

                    If you ever look in the sports page and read the town names for D-1 through D-7 HS BB or FB scores, I’ve been in every last one of them; don’t need no map to get to Five Points, Four Corners, Three Lakes, Two Rivers, or Oneida.

                    I’ve been a lot of places, but I always came back.

                    Tell your MN pals we have over 15000 lakes, and we don’t count the puddles either…

                    • East coast as in Boston; Scituate, a quintessential New England fishing village, to be exact. And yes, I’m in St. Croix County, on the St. Croix river…. beautiful little town. Geographically, WI has it all over MN.

          • I can verify that many of the items are made in the same factory in extra runs. We put “locks” in our product’s program that requires a component only we can supply to thwart the trend. We demand the return of any defective parts so they can’t just claim they were broken and actually ship them to paying customers.

  3. 3: I don’t think he even knows that he has no class.

    On the other hand, he deserved the thanks. It doesn’t matter how much or how little Trump actually helped. The President of the United States took the time, himself, to try and help their dumb asses out of a mess of their own making.

    • Yep. Doesn’t change Jack’s point that Trump is a lousy, self-absorbed jerk who demands sycophants, but you are absolutely right.

      What I’m wondering is if they would’ve bothered to thank Trump if he’d kept his twit shut? We’ll never know, that’s for sure. I’d say it was 50/50 either way.

    • That’s exactly the right answer. I have been in that position many times, helping someone greatly in important ways, and never receiving any expressed gratitude. But I would never demand thanks, or complain about it. What good is gratitude given under demand and duress? It’s meaningless, unless what one really wants is a gesture of submission and an acceptance of obligation…like The Godfather.

      • Opening scene…the mortician, who’s daughter was gang-groped…
        “I love America.” Haven’t heard that line in a movie for a long time.

  4. Re: No. 1:

    This bit from the movie Crocodile Dundee explains the Times’ lack of awareness:

    Walter Reilly: Right, well, ah. ‘Till Wednesday. Cheerio
    Michael J. “Crocodile” Dundee: Wednesday
    [Walks off, pauses, turns back to Walter]
    Michael J. “Crocodile” Dundee: What’s today, Wal?
    Walter Reilly: Monday
    [Mick walks away]
    Walter Reilly: Doesn’t know. Doesn’t care. Heh! Lucky Bastard.

    Just like the times. Boies is a prominent liberal lawyer, and they know liberal lions like Boies don’t break the rules. So they don’t need to know, or care, what they say.

  5. For number 1….

    I’m catching up on my backlog of Ben Shapiro podcasts, and he said something a couple weeks ago in response to a letter for a reader that kind of stuck out for me: The reader asked some variation of: “How do you know so much?” or “how does someone get to the level knowledge you have?” and Ben’s answer was something along the lines of: “Reading. Lots of it. Learn something new every day of your life.” But following that he said, “Look, if you’ve read an actual book on any given subject, you’re on your way to being an expert, because you’ve officially read more about the subject than about 98% of other people.” (paraphrasing, but I think I’m close)

    And… That makes a whole lot of scary sense to me. So for journalists… Who may not even know that there are binding legal ethics rules, let alone where to find them or what they are… Do you think that the coverage of this case has been purposefully bad, or do they just lack a basic legal knowledge to understand what the story is and why it’s a story? And if that’s the case… Is it an excuse?

    I mean, part of me is constantly frustrated with News organizations because whenever they report on something even slightly technical that I have knowledge about, they get details wrong. Important details, sometimes. And it makes me question whether all the technical details of things I don’t have much knowledge about are equally riddled with inaccuracies. “If you can’t get the facts right, don’t fucking open your mouth!” I grumbled at my radio, just this morning… But another art of me realizes that individual news anchors can’t possibly have even a touching familiarity with everything they’re expected to report on…. So I wonder how reasonable it is to expect them to get everything right.

    • Journalism students are almost all liberal arts majors. They think they can be an expert on anything even though they’ve never done a thing. They may have been an English major but that doesn’t stop them being able to criticize actual people in the field about military strategy, foreign policy, energy policy, economics, the tax code, you name it. They’re a joke. Write an article about a lawyer? No problemo. “I’m not a lawyer but I played one in college. And i stayed at a Holiday Inn last night!” In short, their arrogance knows no bounds.

  6. 3. I distrust Twitter so much, I don’t even care what tweets are attributed to Trump anymore. I have no assurance that the tweets are authentically from his fingertips – NONE. They’re ALL fake news, or about fake news, or faking fakes about fake news – just a bunch of damned communications scam-spam! – wrapped in stupidity-reflecting bias, presumed intellectual formidableness (“You had BETTER follow ME – I gots the shizzle”), and all the self-righteousness any of us should expect from anyone indulging their narcissism. How do I know all this? From observing tweets (but never having my own account) through about, oh, sometime in 2009, the First Year of The Greatest President Ever (and if you don’t agree about that year, you’re a racist). I saw the trend, in 2009; tweets-to-date were confirmation that the medium was poised to deliver only MOTSOS (More Of The Same Old Shit). The most ethical, sane and responsible thing to do about Twitter, its tweeters, and their tweets is to just IGNORE. THEM. ALL.

  7. Cheerios must be denser today (more weight to volume):
    Submitted for your approval…
    2003 HNC: 1 cup = 30 grams
    2017 HNC: 3/4 cup = 28 grams…
    straight comparo… , 3/4 cup of 2003 HNC would be 22.5 grams today…
    It must mean that the O is getting smaller.

    With the other topics being rather depressing, I am focusing on the light-hearted today…

    • Yeah… It’s weird numbers.

      2003 Cheerios have 30 grams per cup, 0.36 grams of sugar per gram of cereal, and 11 grams of sugar per cup.

      2017 Cheerios have 37.3 grams per cup, 0.32 grams of sugar per gram of cereal, and 12 grams of sugar per cup.

      You could argue that the sugar/weight ratio has improved, but people don’t often weigh their food before they eat, they fill a bowl. A denser Cheerio would pad out the box weight, and people will probably eat more per sitting as a result… So not only are kids getting more sugar, they’re eating more cardboard like carbs.

  8. I will never excuse the inexcusable from The Donald, about whom I’ve cringed for the better part of two years, or when he started gaining serious POTUS consideration, whichever came first.

    Obama wouldn’t have taken the same tack. He wouldn’t need to.

    As soon as the news hit, a cacophonously furious flurry of activity would have ensued to run interference:

    *Nobel Selection Committee: convened,
    *The crawl from the major nets/cables (CNN, MSNBC, ABC, CBS, NBC, et al relegated to regular news, deferring to full screen, no-cut-away coverage,
    *Chris Matthews: “my leg tingle is now neural-muscular-cardiovascular, grand mal, full body orgasmic rapture,”
    *the CBC: “National Holiday, but won’t be because of raaaaaaaaacism,
    *WJC: “I forgive him for denying my wife’s destiny, not just once, but twice, and please support the Clinton Foundation,”
    *HRC: “monumental, but I did win the popular vote,”
    *Chelsea: “hey, remember me?”
    *The Clintonista Slush Fund, I mean the Clinton Foundation: “Take this opportunity to recognize a monumental effort. Speaking of efforts, click below for amount with which you’re comfortable…pay no mind to what Haiti says,”
    *Reverend Al Sharpton: “I gots to tell you’s, this hadda got done a whole lot sooner if it weren’t for raaaaaaaaacism,
    *Reverend Jesse Jackson: “Mummblestumblemumbleesmarblesinmouthmumblestumbleschleiocshemumblemumble,”
    *the UNIPCC: “Forget Global Warming, THIS is HOT!!!
    *Maxine Waters: “Impeach Trump,”
    *SanFranNan: “Do you walk to school or do you carry your lunch,”
    *Frederica Wilson (D-FL) would say: “Hats off…hah; <b.psych‘
    *Michael Moore would say: ”I’m feelin’ a might peckish, you’s?,
    *Bernie Sanders: “Tremendous, but we need more high quality/quantity free shit, after we break up the Big Banks,”
    *Warren Buffett: “Great news! Puts Berkshire Hathaway (15 years in arrears) and my inversion schemes on a back burner,”
    *Tommy Steyer: “You hear Maxine Waters?”,
    *Uncle Georgie Soros: “Don’t ghost no write books, but I back-channel a WHOLE LOTTA good Lefty shit, which is nice!


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