Author: Jack Marshall

“Swinging Dick” Ethics

/ Jack Marshall / 12 Comments

In a case involving a spa for women that refused ​service to a transgender woman, Circuit Judge Lawrence VanDyke’s dissented from ‌the full court’s decision not to review the spa’s claims that a Washington state anti-discrimination law violated its constitutional rights. (You know, Washington state. It was discrimination not to allow a biological male who had decided he was now female to join and all-female spa and undress in a women’s locker room.) VanDyke’s dissent begins, “This is a case about swinging dicks.”

“You may think that swinging dicks shouldn’t appear in a judicial opinion,” the judge continued. “I hope we all can agree that it is far more ​jarring for the unsuspecting and exposed women at Olympus Spa — some as young as 13 — to be visually assaulted by the real thing.”

Twenty-seven judges denounced VanDyke’s comments as “vulgar barroom talk” that could undermine public trust in the ⁠courts, including my old Georgetown Law Center classmate, Circuit Judge M. Margaret McKeown, who wrote separately that VanDyke’s “crass” language served only to distract from what she said was a routine case involving discrimination in public accommodations.

“It is certainly not a case involving ‘woke regulators’ and ‘complicit judges’ out ​to harm ‘women and young girls,'” she wrote.”Those assertions describe a case entirely different from the one presented to the panel.”

I hate to disagree with my distinguished classmate, especially since she’s judge and I’m just a…hell, I don’t know what I am. But the case was indeed about “swinging dicks.” Here’s the first paragraph of the decision:

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The Freedom 250 Concert Ethics Train Wreck

/ Jack Marshall / 9 Comments

Would it be too much to expect all of America’s talented performers to unite in patriotic passion and non-partisan good will to help the nation celebrate its 250th anniversary?

Apparently, yes! As John Lennon would have said if he were possessed by “Bob” from “Twin Peaks”: “All you need is HATE! Bwahahahahahahaha!” Well, hate and stupidity.

Would it be too much to expect that those in charge of organizing such an event to be willing and able to enlist performing artists who are in their primes, widely popular, and invited on the basis of their achievements and skills rather than their political endorsements?

Also, tragically, yes. What drooling yahoos selected that bunch of has-beens, geezers and B acts to headline “The Great American State Fair”? And Milli Vanilli? Is that a joke? Please let it be a joke! Milli Vanilli is to singing groups as Joe Biden was to the Presidency. It was a fake group. It was caught lip-synching on live TV! Quite appropriately, many conservative, Republican and MAGA supporters are disheartened by these bottom-of-the-barrel scrapings, as this selection of tweets highlighted by “Not the Bee” demonstrates:

From the other end, the Left is seeking an encore of their anti-American tantrum in 2017, when any half-decent performer who wasn’t already an outspoken MAGA captive was threatened with shunning by all the Woke and Wonderful if they performed at any of Trump’s inauguration festivities, leaving the President with community theater stars and marginal performers who would only appear at the Grammys if they bought tickets to the balcony. Last week fading country star Martina McBride joined the list of performers backing out of the upcoming “Freedom 250” concerts. Morris Day, Young MC, and the Commodores, also announced they were dumping the gig. The series is being produced by an organization founded by Donald Trump, see, so that means that the concerts are…

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More Observations On The Jill Biden “Stroke” Narrative

/ Jack Marshall / 22 Comments
Ugh.

I wrote the post on our Worst First First Ever last night over the whole day, which was (sadly, as usual) scattered and full of disasters and distractions, including a Zoom legal ethics seminar that ate up three exhausting hours and had just 12 attendees, meaning that it barely paid for half of my grocery bill later in the day. (But the great William Saroyan said that if only one human being sings your song, your life has meaning, so there’s that.) This morning my 5 hours of sleep had be a bit more focused, so I have additional ethics-related thoughts:

1. See? I’m smart! I’m not dumb like everybody says! I had forgotten how directly Ethics Alarms flagged Joe’s creeping dementia before the election in 2020. Then, as is my wont, I typoed the wrong year into the post, making 2020 into 2024 twice. Maybe I’m not so smart. Anyway, it’s fixed. And may I add, WOW. If it was this obvious in 2020 that Joe was turning into a rutabaga, it’s even more scandalous how completely the Axis media covered for him so they could get rid of the Terrible Orange Man Who Doesn’t Like Illegal Immigrants.

Don’t tell me that there is “no evidence to support Trump’s claims that the 2020 election was stolen.” That fact by itself is evidence.

2. Incidentally, those two posts reminded me how Trump partially has himself to blame for his loss, because he refused to participate in the planned third debate. Every time Joe was on camera and live, there was an appreciable chance that he would start reciting “Hiawatha” in Esperanto. Trump botched the first debate by blathering on and not letting Biden talk enough to make a fool of himself, skipped debate #2, and finally settled down by the last debate. But he might have set up Joe say he “beat Medicare” in 2020.

3. Althouse this morning writes of Jill’s “stroke” story,

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Ethics Villain: Jill Biden [Corrected]

/ Jack Marshall / 28 Comments

There are lively debates among historians regarding who was the best First Lady (I view it as a dead heat between Abigail Adams and Eleanor Roosevelt), but the contest for the Worst First Lady Ever is settled. It’s Jill Biden, easy. Edith Wilson hid her husband’s stroke from the nation but at least she wasn’t complicit in letting an unfit and mentally declining man run in the first place. Woodrow was a terrible human being, but until his stroke he wasn’t an incompetent one. Michelle Obama was and is loathsome, but she didn’t do much substantive damage while she was in the White House. She left that to her husband.

I’m going to give you a gift link to the New York Times’s notably uncritical report on Jill’s new spin on her husband’s crack-up during that fateful debate with Donald Trump, when the mentally declining President descended into authentic frontier gibberish. The Times:

“I don’t know what happened,” the former first lady said in an interview with “CBS News Sunday Morning.” “As I watched it, I thought, ‘Oh, my God, he’s having a stroke.’ And it scared me to death.” In a 30-second snippet of the interview, which is scheduled to air in full this weekend, she said that she had never seen her husband have a meltdown like the one she saw when he took the debate stage in Atlanta. Next week, she is releasing ‘View From the East Wing,’ a memoir of her time as first lady.”

I call bullshit, and so should everyone else. There is so much wrong with that fake narrative if boggles the mind:

1. She’s lying. Everyone had seen Biden freeze, become disoriented, mumble and get confused repeatedly for nearly four years. Months before, Special Counsel Robert Hur released a 388-page report on President Biden’s retention of classified material. In opting not to bring charges, Hur said that Biden would appear to the jury too befuddled to find guilty of the requisite intent. “We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.” Sure sounds like a man every American should feel secure having his finger on the nuclear button! Yet the Axis chorus of partisan hacks continued to tell the public that Joe was “as sharp as a tack.”

2. After Biden’s embarrassment in the debate, Jill went into full cover-up mode. “You answered every question!” she exclaimed, treating the President of the United States like a second-grader. His gibberish was bad enough that she thought he had a stroke, she says now, but not bad enough to have him checked out. Biden had refused to have a cognition test: after this episode, wouldn’t a caring wife be obligated to insist on a medical examination? Of course she would, except that the reality was that Biden’s debate performance was not out of character at that point. His staff and family were thinking, “Oh no. I was afraid this would happen.” Their response after the debate, joining in the agreed upon narrative that “he had a cold…he was tired….he just had a bad night…it could have happened to anyone…he’s always had a stammer…Trump rambled too!” proves that there was no new concern for Biden’s well-being, only concern that the jig was up.

3. In February of 2020, I wrote in part…

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How Bonkers Is Woke America’s Obsession With Normalizing The Transgender Fad? This Bonkers:

/ Jack Marshall / 23 Comments

How far gone does a fanatic have to be to have an event like this and not expect most people to conclude that the organizers are out of their minds? Menstrual equity? Free period underwear?

The event is scheduled for June 17 and supported by Boston Mayor Wu’s “Office of LGBTQ Advancement.” I am solely tempted to do a riff on this, but I’m going to resist. Mayor Wu, who is about as wokey as a human being can get, is really getting away with this somehow. Wow. Talk about pandering to a minority! This may be an all time record.

The ABA Issues An Ethics Opinion To Help Lawyers, Not Clients

/ Jack Marshall / 3 Comments

 The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 523 titled “Engagement Agreements Allowing a Lawyer to Withdraw When the Client Fails Substantially to Fulfill an Obligation Regarding the Lawyer’s Services.” 

The opinion’s summary:

“Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal’s permission to do so, when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client’s truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the Rules, other law (including court rules), or public policy. A client’s persistent failure to fulfill obligations regarding the lawyer’s services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are met. Further, the lawyer’s engagement agreement may put the client on notice of permissible grounds for withdrawal under Rule 1.16(a) and (b), including the client’s failure to fulfill obligations regarding the lawyer’s services. However, the engagement agreement may not expand on the grounds for withdrawal set forth in Rule 1.16 or purport to alter or amend the grounds for withdrawal or the process for withdrawal required by the Rule.”

The ABA is being coy. Traditionally, because, you know, we lawyers are professionals and are not in it for the money but rather for the good of society, lawyers aren’t automatically allowed to drop deadbeat clients because they have stopped paying. It is not unusual for a judge to refuse to allow an attorney to withdraw for that reason, and there is another Catch 22: the confidentiality rules in most states forbid a lawyer from telling a judge that a client isn’t paying his or her legal bills, or can’t.

One coded message that some jurisdictions wink at is “Your honor, I request to withdraw because Mr. Green is unavailable at this time.” Of course, coded violations of confidentiality are still violations. Now the American Bar Association is saying that “the client’s failure to fulfill obligations regarding the lawyer’s services” makes dropping that client reasonable and ethical. This is supposed to be a profession. But for most lawyers out there, it’s all about the money.

The ABA’s pronouncements aren’t binding on anyone, remember.

The full opinion here. 

From the Res Ipsa Loquitur Files:

/ Jack Marshall / 17 Comments

Nice.

I’d say that qualifies as an unethical tweet, wouldn’t you?

It doesn’t matter what the Democratic Party’s social media account was responding to, does it? (Stephen Miller referred to Democratic Party candidate for Texas governor as “trans.” Not that there’s anything wrong with that..) What does matter is that the party that has (often justifiably) condemned Donald Trump for immoderate social media posts, lack of self-control in his rhetoric and an addiction to ad hominem attacks stooped well below anything Trump has ever tweeted with a “Sopranos-esque” “Shut up you ugly fuck!”

That doesn’t mean the President won’t eventually go that low, but for the nonce, I really don’t care to hear anyone from that party (or that pimps for it, like, you know, the news media) criticizing the President for unpresidential language.

The tweet also tells us, as others have, what the character and attitudes of young Democrats are. If you don’t like mis-installed ethics alarms of current Democrats and progressives, just wait for the ones coming up the ranks.

In related news, Chicago’s WGN reports:

“An alderperson for the City of Waukegan was charged after allegedly mailing in a vote on behalf of her dead mother. Dr. Sylvia Sims Bolton was charged with knowingly falsifying election material, a felony, and disregarding election code, a misdemeanor.The investigation began in March, according to the Lake County clerk’s office.According to election records, a vote by mail ballot for Mary Sims, her mother, was issued and mailed by the Lake County Clerk’s Office on Feb. 5.On Feb. 12, the Lake County Clerk’s Office processed the cancelation of Mary Sim’s voter registration after receiving notification of her death record from the Illinois Department of Public Health.

The ballot was returned on Feb. 26

During a review, election officials identified that the voter’s death record had been processed prior to the return of the ballot. After evaluating the returned envelope and confirming that the ballot had been submitted after the voter’s recorded date of death, the matter was escalated internally and reported to the Lake County Sheriff’s Office for investigation.

Bolton is accused of voting for her mother after she had passed away. She surrendered Wednesday morning.

‘The safeguards and verification procedures in place within our election system worked exactly as intended,’ said Anthony Vega. ‘Our staff followed established protocols, identified the irregularity, and immediately coordinated with law enforcement to ensure this matter is thoroughly investigated. Protecting the integrity of our elections remains our highest priority.’

The investigation did not uncover any facts linking the above allegations to her city duties as an alderperson.”

Gee, I wonder what party the “alderperson” belongs to? Since the media report doesn’t say, I’m assuming she’s a Democrat. (She is.) And how ironic that the only person who uses the mail-in ballot system to cheat happens to be an elected official!

Okay, I’m being arch. The Democratic party likes cheating and gaslighting. Just as Biden’s Homeland Security Secretary said under oath that the Southern border was secure and the entire party (as well as its media enablers) insisted that President Biden was “sharp as a tack,” it has claimed for years now that there is “no evidence” of widespread voter fraud and the more secure election procedures are “a return to Jim Crow.”

No, John Brown Is NOT a Role Model For “Social Justice Reformers,” and Anyone Who Says So —Like Hakeem Jeffries’s Brother—Is Both Unethical and Dangerous

/ Jack Marshall / 13 Comments

I co-wrote a book about Clarence Darrow (you can buy it here: it’s cheap), and one of the points I made in the Introduction was that the U.S.’s most famous trial lawyer also believed in terrorism. Well, Darrow had his quirks, and he frequently argued that one of his murderer clients should be acquitted because the murder was justified (it worked, too!). He was ethically and morally wrong about Brown, as I asserted here in a post that republished a shortened version of Darrow’s famous eulogy for the anti-slavery vigilante. It was written long after Brown’s death, of course; Darrow used to deliver the speech on anniversaries of Brown’s birthday on May 8. The most famous section of Darrow’s passionate speech:

“The radical of today is the conservative of tomorrow, and other martyrs take up the work through other nights, and the dumb and stupid world plants its weary feet upon the slippery sand, soaked by their blood, and the world moves on.”

Darrow was an early progressive when the movement began, on the extreme end. In his “ends justifies the means” glorification of violence as a means of social change, we can see the seeds of where modern progressives have gone off the metaphorical rails and become a genuine threat to the rule of law and democracy. In Darrow’s time (he was active from 1890 to 1932) there were few progressives who would go as far as Darrow, though the anarchists did. They were the terrorists of the day, but Darrow defended labor leaders who also believed that murdering the exploitive capitalist here and there as well as their political enablers was the right thing to do.

Thus Darrow defended “Big Bill” Haywood (February 4, 1869 – May 18, 1928), an American labor organizer, a founding member and leader of the Industrial Workers of the World (IWW) and a member of the executive committee of the Socialist Party of America. “Big Bill” was indicted for engineering the booby-trap murder of Frank Steunenberg, a former governor of Idaho. Darrow got “Big Bill” off (Just look at this guy! You just know he did it.)…

….but by arguing that even if he was guilty, its shouldn’t matter because he was on the right side. Fortunately, Darrow’s arguments in favor of just murder were confined to the courtroom and his John Brown eulogy once a year.

This week, Hasan Kwame Jeffries , an Ohio State University history professor and the brother of House Minority Leader Hakeem Jeffries, declared in a social media post that “John Brown understood that the only way to free Americans from the scourge of white supremacy was to get rid of white supremacists by any means necessary. He was right then. He is right now.” Gee, do you think Prof. Jeffries is at odds with his brother in this appeal to violence? I doubt it.

Prof. Turley has called out the Democratic House minority leader for encouraging violence on the Left, and lionizing John Brown is literally a justification of violence. If Republicans and the news media don’t confront Democrats and the party’s leaders with Prof. Jeffries’s words, they are being negligent and irresponsible.

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Sure Such “Polls” Are Rigged, But Nevertheless…

/ Jack Marshall / Leave a comment

The gimmick of walking through college campuses or other denizens of the young, woke and stupid and exposing the stunning ignorance on parade is an old one. Jay Leno developed it into an art form with his “Jay Walking” segment on the “Tonight” show. Jesse Waters has displayed versions of the bit on Fox News for quite a few Memorial Days now, asking young beach-goers about basic U.S. military history.

I know, I know. We have no idea how many people had to be interviewed to collect the staggeringly wrong answers. The dumbest participants are featured multiple times. Maybe these were the only embarrassing responses, though, frankly, I doubt that. I have mentioned before a lawyer I worked with who had been an associate at Skadden Arps, and was a graduate of Cornell. She had no clue when the Civil War was, guessing its dates to be “somewhere in the 1930s???” “Well, I was an economics major,” she explained.

These videos have the same perverse appeal as reality shows: they give audiences a chance to feel superior. It’s the same appeal that carnival freak shows had in past generations. Nevertheless, I believe that Watters’ Memorial Day debacles have value, because they provoke some clarity as well as foreboding.

First, the fact that there is a single adult American without a brain tumor, dementia or a closed head injury who doesn’t know who we fought in the Revolutionary War or who guesses that Albania was the world threat in World War II is a serious indictment of our culture, parenting, and the educational system from pre-school through college. One such idiot is too many. That more than one can be located on the same California beach on the same day portends of a decaying society being undernourished by atrophied minds. Democracy, more than any other form of government, depends on an engaged and informed populace. If people can reach adulthood that ignorant, we don’t have one, or at least we don’t have enough of one.

Second, it is arguably even more alarming that these dolts all laugh and giggle when their pet rock-level ignorance is exposed. They shouldn’t find it funny; they should be humiliated. They should dash into the surf to drown themselves. At very least they should tearfully apologize to, well, everyone.

These people vote. They are the audience that the Axis news media aim at, and the low information citizens that politicians like AOC, Kamala Harris, Tim Walz, Mamdani and James Talerico pander to. They, and people like them everywhere, are the reason the world doesn’t work.

I write comedy; I perform comedy, I have directed award winning comedies. I like satire, parody, slapstick and sophomoric humor. Will Rogers, Mark Twain, Oscar Wilde, W.S. Gilbert, Oscar Levant, Jerry Seinfeld, P.G. Wodehouse, Lewis Black and Chris Rock all amuse me, as will a good knock-knock joke. Those answers on the beach, however do not elicit a smile from me. They elicit despair.