Month: August 2018

Morning Ethics Warm-Up, 8/2/18: Those Tricky Things Called “Standards” [Updated]

/ Jack Marshall / 20 Comments

Goooood MORNING, Cape Cod!

(I miss you, but I miss your clams more.)

1. It is amazing the amount of publicity the Manafort trial is getting. I actually heard a Fox News correspondent argue that Manafort’s indictment proves that the Mueller investigation isn’t a “witch hunt.” I see my anti-Trump Facebook friends making the same claim. Bias makes you stupid. No aspect of the charges against Manafort relate to “Russian collusion,” and if the news media were not determined to convince the public that proof of impeachable offenses were just over the horizon and that Mueller was getting closer, closer, CLOSER, this would be a minor news event, if a news event at all. In fact, the Manafort trial is evidence that the Mueller investigation, whether the special prosecutor intends it to be or not, is functioning like a witch hunt. Any associate of the President past, present or future is on notice that he or she is a potential target, involving potential expense, embarrassment, and smears by the media. The political objective of the investigation is to make governing impossible, by causing widespread fear of guilt by association among those who might assist the President.

Virtually any past President you name had shady friends and associates who would be at risk from a Mueller-style “see-what-dirt-we-can-dig-up” operation. The GOP planted the seeds for this tactic with Whitewater. Republicans have no standing to complain, but Trump does.

2. THIS must be impeachable, somehow. CNN headline: “Donald Trump has no earthly clue about how real people buy groceries.”

The crux of the complaint is that the President used buying groceries as an example of basic requirements of life that involve the uses of IDs, as part of a riff on the need for voter identification laws. The “he doesn’t buy his own groceries!” accusation was last used against George H.W. Bush, when he expressed “what will they think of next?” amazement at computer checkout devices. “[The President] has no earthly clue what the average person, living paycheck to paycheck, making ends meet, is dealing with day to day. Going to the grocery store is not about presenting identification, but it can be about figuring out how you’re going to pay for groceries,” bleats Jen Psaki, Obama’s former communications director, so we know she’s unbiased.

Virtually NONE of our national elected officials have bought their own groceries in years, and probably decades. The significance of this is so infinitesimal that it would escape detection by the naked eye. I hate buying groceries. I admire and envy anyone who has progressed to the stage in life where they can have some compensated minion do the job for them. Meanwhile, this is one of—what, a million? Is that too many, or two few?—examples of habitual Trump critics pouncing on one of his–what, a trillion?—careless verbal gaffes and trying to make them seem more damning than they are. Trump could have, quite accurately, cited many other normal transactions less crucial to the nation than the integrity of the ballot box that require IDs, like renting a car, checking into a hotel, getting auto registration renewed, or buying a bottle of scotch. He chose, for reasons buried somewhere in his unique mind—buying groceries, which as a mistake. I don’t care. I question the priorities and intelligence of anyone who does care.

Especially someone who tries to lie to her readers with this whopper: “In 2008, when then-candidate Barack Obama was running against Sen. John McCain, a clear turning point for the campaign came when McCain could not remember how many houses he owned. ” Sure Jen. That was the turning point! I remember it well: I said to my wife, “Oh NO! This is like Gerald Ford saying that Poland wasn’t behind the Iron Curtain! McCain is doomed! Doomed, I tell you!” And when Hillary couldn’t shake her email scandal, I remember thinking, “You know, this is just like McCain not remembering how many houses he owned!”

And the fact that the economy crashed right after McCain’s gaffe was just frosting on the cake.

3. This is defend Sonny Gray Day. In addition to being ambushed by an attempted Hader Gotcha and stinking up Yankee Stadium with a terrible performance against the Baltimore Orioles, now a minor league team, Gray is being criticized in New York because he smiled as a he walked off the mound while boos, jeers and catcalls reigned down on his head by the typically classy Yankee fans.

What was he supposed to do? Weep? Rend his garments? Booing an athlete who has done nothing to indicate that he wasn’t trying, but who merely failed, is asshole behavior. Gray’s smile meant, “Boy, these fans are ridiculous. Well, what can you do? This is New York.” Indeed. The smile was about the only thing Sonny did right yesterday. Continue reading →

First They Came For The Baseball Players: The ‘Hader Gotcha’ Catches On…

/ Jack Marshall / 22 Comments

Sonny Gray, who should be punished today for a Twitter joke he made six years ago….

I’ve written about this new blight on the American scene three times since a creep trying to embarrass Milwaukee pitcher Josh Hader tracked down some offensive tweets he made in high school, causing Major league Baseball to sentence him to re-education. Not content with the MLB over-reaction, pompous, social justice warrior thought-control purveyors in the sports media like NBC Sports’ Craig Calcaterra and Bill Baer declaimed that he must be made an example of, shunned, cooked, and eaten, or something.  Hader’s pathetic grovel to the mob was so amusing that two more baseball players were quickly subjected to The Hader Gotcha–that will be the Ethics Alarms label to this poison—with similar results (and more obnoxious virtue-signaling by Calcaterra and Baer). Atlanta Braves starter Sean Newcomb had his Twitter history searched by some resentful Dodger fan while he was  pitching a near no-hitter  against LA, with the result that  Newcomb had to deny that he was a racist and a bigot. Next, some Washington Nationals hater did the same to shortstop Trea Turner, posting old Turner tweets from his college days at North Carolina State University. [The third time I wrote about the phenomenon was in a non-baseball context, when “Guardians of the Galaxy” director James Gunn was fired by Disney because a conservative hit man did a twitter dig and found some of his old tweets.]

Isn’t this great? You can be a sad and lonely schlub with  a trivial, insignificant, powerless, witless existence, and yet bring a successful, rich, popular baseball player to his metaphorical knees!  Just  find and publicize some ill-considered,  impulsive  tweets sent when fame and fortune weren’t even twinkles in the future star’s eye, and the nascent athlete was trying to make do with the under-developed brain of a typical male under the age of 25. Why, it’s even better than dropping rocks on cars as they go under an overpass, or releasing computer viruses! What a rush! Continue reading →

Comment Of The Day: Morning Ethics Warm-Up, 6/25/2018: “Thuggery, Double Standards And Hypocrisy…Actually, I Could Use This Title EVERY Morning”

/ Jack Marshall / 24 Comments

Well, I think this is an Ethics Alarms record, and not a good one: this Comment of the Day, by prolific commenter Pennagain, is more than a month old. I have no defense, only a possible explanation: the subject of the comment is an unpleasant one, and was more than a little tangential to the main post. It was prompted by a commenter’s reference to comic Eddie Murphy’s anti-gay rants that would have pretty surely ended his career had he been rising in the social media mob-dominated environment of today rather than the still largely-closeted 80’s. That would have been a shame, because Murphy is–was?–a great talent when he wasn’t being a complete jerk, which, unfortunately, was far too often.

What reminded me that I had whiffed after more than a month? An article about Murphy’s “Delirious”  was published today in  “The Advocate.” So this is timely despite my ineptitude.

Moral luck.

I apologize to Pennagain. This wasn’t just a well-written ethics comment, but an important, educational and disturbing one. Maybe it can spark some discussion anew.

Here, very late, is Pennagain’s Comment of the Day, on the post,Morning Ethics Warm-Up, 6/25/2018: Thuggery, Double Standards And Hypocrisy…Actually, I Could Use This Title EVERY Morning:

For the rest of you, respectfully, please understand that Eddie Murphy IS indeed unwelcome by queers everywhere. His so-called “humor,” brought to San Francisco in the mid-80s at the height of the AIDS crisis, was a no comedy show at all. It was a diatribe against gay white men in particular … but also a scarcely disguised order-from-On-High for black women (at that time finding partners in the big gay dance clubs) to get back in line behind black men … all based on perverted facts and misrepresentations – such as ‘if you go out dancing with a (gay) man, you will die a horrible death; you can never have children if you touch one of those (^!>?!)’ and assuring all black men in the audience that no black man in history had ever been, or ever could be queerhomofag, etc. The rant was preached to black audiences as gospel (Murphy was then at the height of his popularity; his every word came straight from the pulpit) and — god help them all, they believed him. His lies spread to the Hispanic/Latino community as well.

The results were apparent shortly after Murphy began his stint in the city. They are still tragically with us. The public health outreach had started to be effective across the board (including black communities) just before Murphy’s regrettable visit. Immediately afterward, AIDS/HIV education shut down wherever black people congregated: churches, groups, school speakers, distribution guidelines, and most disastrously, with many black physicians. Eddie Murphy said black men could not be gay, therefore could not get AIDS, therefore could not infect their partners (male or female … By extension meaning black children were safe from the “gay plague.” This is what happened: Continue reading →

Afternoon Ethics Jolt, 8/1/2018: When You Cross Fake News, Dishonest Journalism, Anti-Gun Hysteria, Ignorance And “The Resistance,” What Do You Get?

/ Jack Marshall / 34 Comments

 A new freakout!

…and dumber than most, too. U.S. District Judge Robert Lasnik of Seattle issued a temporary restraining order that blocks the Trump administration from refusing to try to block publication of blueprints to produce guns from 3D printers. Eight states and Washington, D.C. had sought the order.  A company called Defense Distributed planned to publish the blueprints after the U.S. State Department agreed to settle a suit filed by the company in an agreement made public on July 10. The suit had claimed the State Department violated the First Amendment by warning in 2013 that publication of the blueprints violated export controls and could lead to a jail sentence for the company CEO,  Cody Wilson.

It sure sounds like prior restraint to me, and I suspect, when this gets to the Supreme Court, which it inevitably will, that will be the conclusion.

This began as one more example of the Obama Administration playing fast and loose with the Bill of Rights. Now, it may well be, as the suit by the states alleges, that the Trump Administration didn’t handle its legal U-turn properly, it being, after all, the Trump Administration.  Nonetheless, the government blocking the online publication of information, which is what a blueprint is, when no copyrights, patents or trademarks are being violated or national secrets revealed, seems like a pretty clear First Amendment violation.

Never mind, though. The story sparked a perfect storm of fake news, fear-mongering and incompetent journalism. The Times, among others, called the blueprints a “downloadable gun.” There is no such thing as a downloadable gun. You have a gun when you download a blueprint for a gun just like you have a house when you download a blueprint for a house. That term isn’t short-hand, it’s wrong: misleading, inaccurate, and really, really stupid.  Other sources blamed President Trump and his administration for the fact that 3-D printer plans for guns were available. They have been available for years. Here are some downloads in case YOU want to have the plans for weapons that you will only be able to make if you happen to have some very expensive equipment. Continue reading →

Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

/ Jack Marshall / 25 Comments

This morning the Washington Post tries to spin the clear ethics violation by Michael Cohen when he surreptitiously recorded his client, Donald Trump, when his client didn’t know or have any reason to suspect that such a recording was taking place. It was unethical. I have never spoken to a lawyer or ethics authority who didn’t believe such a recording would be unethical, at least until such an ethics breach was made against this particular betrayed client. Now, since the legal profession is one of many that have abandoned integrity and professional standards in the fever of anti-Trump madness, I’m sure several, maybe many, will change their tune. You know: they don’t want their friends to be angry with them.

Yes, Cohen’s taping was legal, because it occurred in New York, where only one party to a conversation has to know it is being taped. That is irrelevant to the ethics breach at issue. For a lawyer to tape a client secretly is always unethical. That’s my position, and I know of no persuasive argument against it. The Post article says that the matter isn’t clear cut. Oh yes it is.

Until 2001, there was little dispute that a lawyer was violating Rule 8.4, which pronounces it misconduct for a lawyer to engage in misrepresentation, dishonesty, fraud or deceit. Taping anyone secretly is misrepresentation. Does anyone want to dispute that? Try. If I am talking to you privately, and you do not tell me that I am being recorded, then you are representing to me that I am NOT being recorded, unless our previous conversations were recorded and I knew that. A few states just ducked the issue, and held that a lawyer could do what any other citizen could do in a state that made one party recordings legal. The American Bar Association, however, right through the 20th Century, held that it was per se unethical for a lawyer to surreptitiously tape anyone.

The absolutist position was an Ethics Incompleteness Principle accident just waiting to happen. In other words, there had to be exceptions, and since almost all states allowed District Attorneys to surreptitiously record suspected criminals without the threat of ethics sanctions, exceptions were already recognized. Thus, in 2001, the ABA revised its position with equivocal, muddled, Formal Opinion 01-422, “Electronic Recordings by Lawyers Without the Knowledge of All Participants,” which the ABA summarized this way:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

It does not “necessarily” violate the ethics rules because, the opinion explains (as various state opinions have as well), sometimes recording a third party serves the interests of justice, as when, for example, a client is trying to show domestic abuse, or when there is an allegation of illegal loan or housing discrimination. 01-422 wanders into Clintonesque rhetoric, however, when it states, Continue reading →