Welcome, October!

In vaudeville terms, ethically speaking, this is like following a dog act…

1.  More on the strange legal ethics of David Boies. I am currently teaching the David Boies-Harvey Weinstein-New York Times fiasco as a main feature of all of my legal ethics seminars. (You can read the original post here) To its credit, the Times recently did a feature on Boies including his side of the story, which is, I found, not very mitigating. It also had this passage:

For his part, Mr. Weinstein showered Mr. Boies with invitations for opening-night parties and celebrity-studded charity events. The Weinstein Company put one of Mr. Boies’s daughters in the hit 2012 film “Silver Linings Playbook,” and also distributed a movie she produced, “Jane Got a Gun.” Along with the son of one of his law partners, Mr. Boies formed a film production company, which invested $5 million each in two Weinstein films, “Gold” and “The Upside,” both flops.

These entanglements may have colored Mr. Boies’s objectivity and judgment about Mr. Weinstein. But they weren’t, in the legal sense, a conflict of interest. They more closely aligned Mr. Boies’s interest with his client’s, which as far as the bar is concerned is a good thing.

I don’t know what bar the Times is talking about, because a lawyer “aligning” aclient’s interests with a client is not “a good thing,” but a condition that interferes with a lawyer’s independence and objectivity. It creates a personal conflict of interest that not only has to be waived by the client, but which the lawyer must reasonably believe will not affect his representation.

This comments to ABA Model Rule 1.8 make it very clear that significant gifts to clients (in this I would include gifts and benefits to family members) are ethically perilous at best:

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except where the lawyer is related to the client as set forth in paragraph (c).

Why don’t bars just declare lawyers accepting significant gifts and favors from clients as inherent conflicts of interest that reek of the appearance of impropriety?

The answer is that lawyers like getting gifts from rich clients, and lawyer associations tend not to interfere with things lawyers like to do.

2. If someone can explain this to me, please do, and hurry. Maryland officials have announced that they will launch a criminal investigation into the attempted rape allegations of Christine Blasey Ford if she files a complaint. Ethics Foul. Since when do law enforcement officials encourage someone to file a complaint where the alleged crime is already far past the Statute of Limitations? The case can’t be prosecuted, and is indeed illegal to prosecute. Thus it is prosecutorial misconduct to take action as if it is going to be prosecuted.

In a letter, Montgomery County Police Chief J. Thomas Manger (Full disclosure: Tom is an old friend, as is his wife) and Montgomery County State’s Attorney John McCarthy explained that they would have to apply the law as it existed at the time in 1982.

This means investigating Kavanaugh 36 years later for an alleged crime that was a misdemeanor (either assault or attempted rape) then, in addition to the fact that the crime can’t be prosecuted.  I don’t see how such a complaint can be filed, investigated, or prosecuted. It sure looks like another example of the laws and basic principles of fairness being warped for a political hit on Kavanaugh.

3. Speaking of...This cartoon has stirred up controversy. My main ethics-related interest is how all of a sudden “alcoholism” is being cited by Democrats as a character flaw, a position that we, especially on the Left, disposed of decades ago when it was determined that alcoholism and other addictions are illnesses. As with the gay-bashing of Lindsay Graham, it appears that now progressives can turn on a dime and turn addiction into proof of “moral turpitude,” as long as the sufferer is a conservative or a Republican.

Have they no decency?

Let’s start with the fact that there is no evidence, none, that Kavanaugh was or is an alcoholic (and if he was, he is…).  Past alcohol abuse does not necessarily lead to alcoholism or prove alcoholism: people can be abusers without being addicted. It is possible that he could now be a high-functioning alcoholic and somehow have the success he has had as a lawyer and a judge–Winston Churchill was probably an alcoholic—but it is unlikely. The hypocrisy of the legal profession, which most studies suggest has the highest proportion of alcoholics in the U.S., and members of Congress, not to mention the second biggest bunch of drunks getting a paycheck, journalists, using this illness to attack Brett Kavanaugh is one more indication of how low “the resistance” will go.

I will say this: if Democrats lose the alcoholic vote, they are in big trouble.