Author: Jack Marshall

Ethics Observations On The Mattis Resignation

/ Jack Marshall / 35 Comments

President Trump announced that he was ending the U.S. mission in Syria, and drawing down the troop level in Afghanistan. His Secretary of Defense,General Mattis, resigned in protest, and copied his letter of resignation to the world.

The news media, social media, and full time anti-Trump hysterics, among others, went bonkers.

  • What’s going on here? A President who has long held that U.S. domestic priorities are more important than “being the world’s policeman” followed through on his promise. As is his wont, he sprung the actual news without laying a foundation to cushion the blow. Nobody knows whether the decisions will work out or not, but the assumption is that because this President is the one making the decisions, they must be stupid, evil, or both. This, despite the fact that Barack Obama essentially did the same thing regarding Iraq, except that Iraq gave much more promise of stabilizing with continued U.S. presence. Syria is still in chaos, and nobody can confidently say when and if it will not be. As for Afghanistan, the U.S. has been expending lives and treasure there for a mind-blowing 17 years. What is the mission? Funny—I thought the original mission was to punish the country for sponsoring the 9/11 attacks. We could have declared the point made long, long ago. Is the President wrong to say “Enough is enough”?

I have no idea—and neither do you.

  • Having no idea, not having seen the data, not having been advised, and not being President of the United  States, I have little basis to challenge or deride the decision. But what’s really going on here is what has been going on since January, 2017. Any decision or action by this President is immediately assumed to be wrong. The analysis attached to it afterwards is superfluous. The position is that President Trump did it, it’s wrong because he’s a Nazi/idiot/ grifter /fool, and that’s all we need to know.

This, of course, makes it impossible, literally impossible, to get honest, trustworthy analysis about anything.

  • Anyone who criticizes Trump in public, even certifiable slime like Steve Bannon, James Comey, and Omarosa, suddenly is embraced by “the resistance ” and the news media using the formula that the enemy of my enemy is my friend. This rewards unethical conduct, and “Mad Dog” appears to have fallen into the trap, to his eventual shame. As a lawyer, I know it is unethical to drop a client, my employer, and make any pubic statements whatsoever impugning his or her judgment or conduct. It is also unethical to do this in any professional relationship. Professionals know this: I presume at one time Mattis knew this. But having paid attention to how routine betrayals of this President have been cheered and praised, he apparently couldn’t resist temptation.

Now, as a lawyer, my duties are codified. That doesn’t mean that professionals who don’t have the same duties codified aren’t obligated to follow them. Continue reading →

Morning Ethics Warm-Up, 12/21/2018: Getting The Tree Lights On In One Day Victory Lap Edition, Featuring Sports, Movies, Jerks And “Bambi”

/ Jack Marshall / 14 Comments

Happy Holidays!

Seven hours, one serious needle wound, and 1300 lights later, victory! I’ll finish the decorations when I get back home, IF I get back home…

1. Itinerary…I’m heading to New Jersey via train to hook up with the brilliant Mike Messer, what we call “the talent,” in an encore rendition of the musical legal ethics seminar, “Ethics Rock Extreme,” lyrics by yours truly, musical stylings by Mike, on the guitar. Then it’s back to D.C. by air on Saturday, if I’m lucky. If I’m not lucky, I’ll be taking the New Jersey bar exam in the Spring…

I have no idea how or whether I’ll be able to keep Ethics Alarms on track once I board the train this afternoon. I’m not going to launch a second Open Forum in leas than a week, so please keep working on the current one here, now at 130 entries and counting. I will be reviewing those on the road, and I’m sure there will be some Comments of the Day to post, eventually.

2. In case I am trapped in New Jersey…Let me alert everyone that Peter Jackson’s apparently terrific (based on the reviews) WWI documentary “They Shall Not Grow Old” will be playing in theaters on December 27, and after that, who knows? The American public’s ignorance about that war, perhaps the greatest human catastrophe in modern history, is a failure of education, perspective and culture. If you have kids, take them. Here is the trailer:

3. Speaking of cultural literacy and movies, TCM is offering a limited engagement in theaters for “The Wizard of Oz,” on January 27, 29, and 30.

Is there another film that so many people purport to know and love so well without actually having seen it as it was intended to be seen? When I finally saw the movie in a theater—no breaks or commercials, big screen—I was shocked at how different and, obviously, better, the experience was. It’s an artistic masterpiece and sui generis: we will never see its like again, nor talents like Judy, Ray and Burt, among others. Continue reading →

Movie Poster Ethics: Is This Good Parody, Bad Taste, Blasphemy Or Religious Discrimination?

/ Jack Marshall / 55 Comments

Well, it sure isn’t religious discrimination, but that’s what some of The Offended are claiming.

This is a poster for a holiday repackaging of “Deadpool 2,” the tongue-in-cheek sequel to the previous tongue-in-cheek Marvel superhero hit, “Deadpool,” featuring the hideously scarred, invulnerable, foul-mouthed and irreverent superhero who routinely breaks the fourth wall to crack jokes.  The poster is a parody of the “The Second Coming,” a painting by Harry Anderson that is inexplicably popular among Mormons, and often hangs at meetings of members of The Church of Jesus Christ of Latter-day Saints. Here’s the poster’s inspiration:

I

Continue reading →

The Transgender Secret: Was I Right Then, Or Am I Right Now?

/ Jack Marshall / 34 Comments

I recently wrote here that I have been pleasantly surprised when looking back on old posts to find that I am almost always in agreement with them. Naturally, I have immmediately been confronted with an issue where I now question Past Jack’s verdict.

Ebony has a “confession’ article—it may be fake, but the issue isn’t—by a trans woman who writes in part regarding her husband,

We were months into dating and contemplating sex before it ever occurred to me that Carlos might need to know… It was wrong, but I chose to keep the secret rather than risk losing him. Now, four years later, Carlos and I are happy and madly in love! It has been a roller coaster, but we couldn’t be happier. But it’s this happiness that is causing me such pain because Carlos feels that it is time to add to our happy family. He is excited to be a father and his face lights up at the very thought. So how do I break his heart? How do I tell him that all of our trying has been in vain because, despite my best efforts to be the person I always felt I was, I’m still not who he thinks I am?

My answer: Suck it up and tell him the truth. Maybe have him watch “The Crying Game” a few times. The relationship has already been built on a material lie, and now adding to the dishonesty by concocting a reason why children are not an option just damages the relationship further.

I do think that transgendered individuals have a difficult choice regarding the timing of this revelation as they enter a relationship, but that’s a different issue (There’s a poll on that one coming up.)

In 2012, however, I did post following an Emily Yoffe advice column (“Dear Prudence”) , and came to the opposite conclusion, in contrast to Yoffe. Then I wrote, Continue reading →

Morning Ethics Warm-Up, 12/20/18: I Promise, I’m Looking Hard For Uplifting Ethics Stories For The Holidays. And Failing….

/ Jack Marshall / 32 Comments

Good morning!

(If I don’t get the lights on the tree  today, I’m hurling myself into a pit of rabid reindeer…)

1. Open Forum report: Another intense, varied, and impressive performance by the Ethics Alarms crew in my absence yesterday. 23 different commenters raised and debated the following issues, many of which I haven’t touched yet, because I am wholly inadequate to my task. Among them:

  • The ethics of fighting a specious criminal charge,
  • Texas’ school districts for making employees sign a pledge not to boycott or advocate against Israel?
  • The bump stock ban
  • The plea deal of Jacob Walter Anderson
  • “The Innocent Man”
  • The Xmas package-snatcher trap.
  •  Stepha Velednitsky
  • “Without Precedent: Chief Justice John Marshall and His Times” by Joel Richard Paul.
  • The yellow vest protests and the meager US coverage of them
  • Prada Monkey
  • Trump’s decision to  pull out of Syria

2.  Favorite dishonest and manipulative note out of many in the 12/18  Times:   Reporters Carl Hulse and Julie Davis write in“Tennessee Senator, A Proven Deal-Maker, Won’t Seek Re-election”…

Senator Lamar Alexander, Republican of Tennessee and one of the last bridges to bipartisanship in the Senate, announced on Monday that he would not seek re-election in 2020…His decision to leave is more evidence that Washington has become less attractive to legislators interested in steering a middle course on seemingly intractable issues such as education and health care….

Fake news, and deliberate distortion. In fact, Alexander’s decision may have nothing to do with the job becoming “less attractive to legislators interested in steering a middle course,” and his own words, meaning his own stated reason for leaving, don’t suggest that at all. Alexander is 78. In 2020, he would be 80, meaning that by the end of a new term he would be 86, or sick, or dead. “I’ve had my turn,”  Alexander is quoted as saying. “Everything comes to an end sometime, and it is good to know when that should be.” He also said that he wants to leave the Senate “at the top of my game.”

The current U.S. news media is untrustworthy, dishonest, incompetent and despicable, and frankly, I am beginning to regard anyone who continues to deny this the same way. Continue reading →

Christmas Questions For A Thoroughly Confused Culture

/ Jack Marshall / 32 Comments

In “A Christmas Kiss,” the 2011 Hallmark-style Christmas movie (that premiered on the Ion channel, but really would have been right at home on the Hallmark channel, or for that matter, the Crap Channel), Wendy Walton is an aspiring interior designer. One night, while preparing to go out with her roommates in glitter makeup,  she encounters an impossibly handsome, formally-dressed stranger in the elevator. When the elevator stalls and seems unstable, Wendy is thrown into the stranger’s arms….or perhaps grabs him for support, or in fear.  The elevator starts moving again, and he impulsively embraces her and gives  her a passionate, romantic kiss.  They part without her learning his name, and Wendy breathlessly tells her roommates about her magical encounter with the handsome stranger.

2018 questions:

1 Was the kiss sexual assault? Wendy did not consent to it. Continue reading →

Open Forum Ethics III

/ Jack Marshall / 144 Comments

As before: Talk about and debate any ethics topics you like, from current events to cultural controversies. Keep it civil, please, wise, and trenchant.

 

Morning Ethics Warm-Up, December 19, 2018: Facebook’s Lies, Hillary’s Letter, Harvard’s Defenders, And Kavanaugh’s Victory

/ Jack Marshall / 13 Comments

Good Morning!

1. Open Forum today! As soon as this post is up, I’ll open a forum for readers here to raise their own suggestions for ethics topics and to offer their commentary without me getting in the way. The last one was a spectacular success, attracting over a hundred comments, generating many fascinating threads, and producing three Comments of the Day so far. Just keep the topics on ethics, don’t get distracted by tangents and bickering, and keep it civil.

The immediate motivation for today’s forum is that I have to prepare for and deliver an annual end of year ethics CLE seminar at the D.C. bar. If you’re in the vicinity and need the credits, or just want a lively ethics workout, come on by and say hello. Here are the details:

Date: December 19, 2018

Event start time :1:30 PMEvent end time:4:45 PM

Venue:D.C. Bar: 901 4th ST NW, Washington, DC 20001-2776

Credit: 3.0 Ethics Credit Hours, including 3 hours of professionalism for those states with such requirement.

Description: Widespread discord in our current culture places unusual stress on professional ethics, and unfortunately, the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.

Topics include:

• Direct adversity vs. “general adversity,” and whether it matters
• Sexual harassment as a legal ethics problem, and the profession’s vulnerability to “The King’s Pass”
• Defying a client for the client’s own good
• Fees, referrals and gaming the rules for fun and profit
• Professional responsibility vs. legal ethics
• The increasing threat to law firm independence and integrity
• The technology ethics earthquake

..and more!

Faculty: Jack Marshall, Pro Ethics Ltd.
Fee: $89 D.C. Bar Communities Members; $99 D.C. Bar Members; $109 Government Attorneys; $129 Others

2. Meanwhile, here are Facebook’s “standards”… As Ethics Alarms posts continue to be blocked on Facebook in various ways, including by “community standards” that for some reason reject the ethics of “Miracle on 34th Street,” the social media behemoth’s own standards are coming into focus: From CNBC: Continue reading →

Popehat Nails Dershowitz For Misrepresenting The Law

/ Jack Marshall / 41 Comments

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Continue reading →

“Miracle On 34th Street”…An Ethics Companion, Chapter One: “Meet Kris Kringle!”

/ Jack Marshall / 24 Comments

The Introduction is here.

The movie tells us right at the start that 1) the charming old man in the white beard can’t possibly be Santa Claus, and 2) that he’s nuts. That is, he tells adults who are paying attention this as soon as he starts complaining to a New York City storekeeper that his window display has the reindeer mixed up: “You’ve got Cupid where Blitzen should be. And Dasher should be on my right-hand side. And another thing…Donner’s antlers have got four points instead of three!”

Let’s see:

  • No Christmas display has ever distinguished between Santa’s reindeer (except for Rudolph), because the individual reindeer have never had any identifying characteristics in reality or myth. Are we to assume that there are name-tags on the models? If so, why wouldn’t Kris be complaining about the features of all of them, not just “Donner’s” antlers?
  • The names of the reindeer, even if there are flying reindeer, were 100% the invention of the poem “A Visit from St. Nicholas,” or “The Night Before Christmas,” originally published in 1823.  No one has ever claimed that the author had some kind of special info on the actual names of the reindeer when he wrote,

    More rapid than eagles his coursers they came,
    And he whistled, and shouted, and called them by name;

    “Now, DASHER! now, DANCER! now, PRANCER and VIXEN!
    On, COMET! on CUPID! on, DUNDER and BLIXEN!

    …and anyway, if he did, those were their names 120 years before the movie takes place. Nobody has ever claimed the reindeer were immortal, either. I suppose Santa Claus, in a nod to the poem’s popularity (it has been called the most famous poem of all time), could have adopted the practice of always having the reindeer named after the poem’s versions, and when one Vixen dropped of old age, the young reindeer that took her place became the new Vixen.

I suppose. Continue reading →