1 Well, we have some exit poll results…on my integrity and denial question in the Mueller indictment post I started at 4 am, hence the late Warm-up. Based on the comments so far, I am going to be disappointed: the “Trump is guilty of something” crowd is, so far, arguing that an indictment statement including “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity. There is no allegation in the indictment that the charged conduct altered the outcome of the 2016 election” means that the President’s election was illegitimate and that he is guilty of wrongdoing. We also have such jaw-dropping moments as a commenter praising the Mueller investigation for not leaking the indictments beforehand—wow. Leaks are unethical, and when a grand jury is involved, illegal. The leaking from the Mueller investigation and the Justice Department have been a national disgrace, and we are now at the point when government lawyers not breaking the law is deemed worthy of praise in some quarters.
Of course, we don’t know what was leaked. Since leaking grand jury testimony is so serious and always sparks its own investigation, I wouldn’t bet against reporters having been tipped off, but using the advance notice to prepare their “Trump’s still guilty!” responses.
A better example could not be found of how the the news media and the intentionally divisive partisan rhetoric of the past decade have caused a fracture in the ability of Americans to perceive facts unfiltered by confirmation bias. I find this disheartening. But exit polls are not always accurate…
2. An unexpected take on the indictments. Eccentric conservative blogger Da Tech Guy had some interesting observations:
“Section 1 and section 24 notes that it’s against US law for “certain foreign nationals” to enter the US without a visa providing truthful and accurate information to the government. Apparently these laws don’t apply to dreamers and those who brought them…section 41 talks about identity theft including social security numbers; again, this could be a charge against the DACA kids…Section 85 completes the list, the illegality here is that they pretended to be Americans and didn’t register as foreign agents while doing activities that if done by Americans would be completely legal…Does that mean that DACA folks and illegals who have held political rallies will be indicted next?…Section 89-95 on count 2 and section 96 again notes identity theft and moving money via such theft., boy this could be an indictment of the illegal alien DACA crowd if they wanted. But they don’t.”
3. Ethics movie review! I watched Denzel Washington’s “Roman J. Israel, Esq.” twice last week, in part because it is a legal ethics movie, and in part because Washington’s portrayal of an idealistic autism-spectrum civil rights attorney whose ethics alarms get corrupted is so unusual for him. I’ll basically pay to watch Denzel play canasta.
I wanted to slap screenwriter and director Dan Gilroy silly for allowing the film, which otherwise I thought was a fascinating character study, to be marred by ridiculous legal ethics gaffes and legal howlers. I blame laziness, and even that doesn’t cover it.
Hollywood keeps negligently, or worse, intentionally misinforming the public about the legal profession and the law. This does real harm, not just to the public when they are working with lawyers, but the legal profession. The ABA and other bar associations should be actively fighting this misinformation. The profession should have issued a press release condemning the movie’s errors, which were so egregious they could not have been innocent. For example—oh, all right, spoiler alert—
- Israel’s disillusionment begins when he is told by the slick head of another firm (Colin Farrell) that Roman’s lionized mentor and partner, who has suffered a terminal stroke, gave the other firm “kickbacks” for cases. No lawyer calls case referrals “kickbacks,” which are unethical and illegal in many industries. Not the law, though. Referral fees are not illegal, or, done properly, unethical. Referrals are essential to the functioning of the justice system: lawyers pass along cases to lawyers who are better equipped by experience and resources to handle the cases properly. The fact that the receiving lawyer pays a portion of the fee to the referring lawyer helps provide incentive for lawyers not to keep cases for themselves that the client would be better served by having another attorney handle.
The technical term is fee-splitting: it must be disclosed and approved by the client, and the total fee must be reasonable. In many jurisdictions, like the District of Columbia, to receive a referral fee ethically a lawyer must at least “take responsibility for the case,” meaning some kind of oversight.
- Israel is a crusader against the practice of criminal plea bargains prompted by unethical prosecutors over-charging defendants. He has a client with serious charges against him who wants to make a deal: he’ll reveal the whereabouts of a dangerous gang-leader, but only if the prosecutor agrees to probation, for the frightened defendant is certain that he will be killed in prison. Israel has a meeting with a typically stressed and distracted prosecutor who offers to take the information about the gang leader’s whereabouts but only in exchange for a lesser prison term, not probation. The defense lawyer disparages the offer and tries to bargain for the deal his client wanted and needs, but the prosecutor abruptly withdraws the offer. Later, Israel’s client is murdered in prison. His new boss excoriates him after learning from the prosecutor that Israel had “pissed” on her offer. He tells Washington’s character that he had “broken the law” by not relaying the offer to his client.
This is wrong. To begin with, there is no “law,” just an ethics rule. Lawyers are required to relay an offer to the client, and cannot reject them unilaterally, although TV shows and movies show lawyers doing this all the time. However, there is no rule that says that a lawyer can’t try to negotiate after he receives an offer that he knows, based on the client’s instructions, the client will not find acceptable. That’s all Israel was doing, and I doubt that any disciplinary panel would find that he had rejected an offer by trying to get a better one. The prosecutor could have and should have said, “Nope, that’s the offer. Take it or leave it. That’s final.” Then the lawyer has no choice but to bring the plea deal to his client. Not only was what Isreal did not a crime, it probably wasn’t an ethics breach either.
- This and other misfortunes prompt Israel to lose his faith in his profession and high ideals. Single, acetic, without a family, a car or a good suit, he secretly passes along the secret of his dead client regarding the hiding place of the murderous gang member, and collects a $100,000 reward. Later, when this comes out, his breach of attorney-client privilege is described in the film as a crime, and it is even implied that Israel could be jailed.
Utter nonsense. Revealing a client’s privileged communications is a terrible ethics breach, though in this case somewhat mitigated since the client was dead and the information got a killer off the streets. It is no crime, however. Israel faces disbarment, but no arrest or criminal charges.
There is no excuse for a major movie getting so much that is basic regarding the profession it purports to explore so wrong.
4. Back to the Mueller indictments…Ann Althouse made me happy. I don’t commonly appeal to authority, but I do respect Althouse, a good legal mind, and independent thinker, and like me, a frequent curmudgeon and iconoclast. I just saw her analysis of the new media spin on the indictments. Here is a sample, but do read it all:
The editors of the NYT in “Stop Letting the Russians Get Away With It, Mr. Trump.” [are] pointing at the new indictment as if it makes it obvious that the Russians already did something that amounts to a profound national security threat. But it’s far from obvious. In fact, I can’t see it at all.
“On Friday, Robert Mueller, the special counsel investigating Russia’s role in the 2016 election, filed criminal charges of fraud and identity theft against 13 Russian citizens and three Russian organizations, all alleged to have operated a sophisticated influence campaign intended to “sow discord in the U.S. political system.”
So… they engaged in speech and they meant to “sow discord.” I can’t see that as a profound national security threat. If we were to adopt that view and act upon it, there would be a profound threat to freedom of speech.
[“Specialists” at the Internet Research Agency] posed as Americans and created false identities to set up social media pages and groups aimed at attracting American audiences.”
Another day on the internet — people pretended to be what they are not. If you’re going to assume that readers of the internet are so naive as to take the crap that pops up on line at face value, you’re making the argument that we can’t even have a democracy at all. People are too stupid to vote. But we’re on the alert — even when we read the New York Times — that somebody’s always trying to con us.
“The broad outlines of this interference have been known publicly for a while, but the sheer scope of the deception detailed in Friday’s indictments is breathtaking.”
Eh. I’m still breathing.
“By the spring of 2016, the operation had zeroed in on supporting Mr. Trump and disparaging Hillary Clinton.”
Because it was more chaos-y. So what?
Exactly. Or to quote Da Tech Guy again, “This doesn’t even reach the level of small potatoes, and anyone who tells you any different is a liar trying to spin you.” The rapidity with which the anti-Trump media and resistance pivoted to “See? By not taking this seriously, Trump has endangered our elections!” is breathtaking.
But exit polling…