Business & Commercial

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. 

The Duty To Remember and Walter Hunt (1796-1859)

/ Jack Marshall / 4 Comments

I mentioned one of my favorite American oddballs, inventor Walter Hunt, last week in passing, and subsequently realized that while his name had turned up in several EA posts over the years, I have never devoted a whole essay to him. Shame on me. Readers here know my obsession with cultural memory and my devotion to the mission of trying to ensure that important and remarkable people, events and things don’t become discarded by American society’s short attention spam and poor education. In my other life, I co-founded a professional theater in Northern Virginia dedicated to producing great, influential and important American stage works that the rest of the theater community forgot, neglected, or was too shallow to appreciate.

Hunt, however, was among my first forays into extolling the unfairly obscure. My fifth grade teacher, Miss Barrett, assigned the class to write a paper on an American inventor. Leaving Edison, Bell and Franklin to the mob, I spent a Saturday in the library and tracked down a dusty tome called “The Encyclopedia of American Invention,” published before World War II. It had a huge and detailed chapter on Hunt, and I was hooked.

As the excellent video above explains, Walter was one of these amazing people who could see a problem, think for a while, and come up with an original solution. Part of his problem was that he was so confident in his ability to invent new things that he didn’t hesitate to sell the rights to his latest invention to pay current bills and debts, never committing to the laborious project of building a business with his ideas, Hunt made many entrepreneurs wealth with his inventions, but never became wealthy himself. He was, in short, a hopeless businessman.

As a creative problem solver, however, few could match Walter Hunt. He belongs in the same elite company with Edison, Leonardo Da Vinci and Ben Franklin, but unlike them, he’s almost completely unknown, not just today, but during his lifetime as well. And yet…these were among Hunt’s most important inventions:

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Oh Look, Pope Leo Presumes To Tell Us What To Do With A.I.! Ethics Observations, Part II

/ Jack Marshall / 20 Comments

The summary of the Pope Leo’s open letter to “all people of good will” is at Part I, along with a link to the whole 42,000 word opus. News reports on the document can be read here, here and here.

1. The document appears to begin, as we would expect, from the basic socialist/Communist/progressive bias the Catholic Church has always displayed, which includes suspicion and contempt for capitalism. In the text, Pope Leo says that while “technology should not be considered, in itself, as a force antagonistic to humanity,” he added that “the pursuit of greater profits cannot justify choices that systematically sacrifice jobs.” The encyclical doesn’t resolve the obvious conflict that has always existed in that perspective: technology ideally improves the quality of life for humanity, saves resources and redistributes them elsewhere, and often reduces the costs of goods and services making them more affordable to all. One of my favorite inventors, Walter Hunt (inventor of the safety pin), invented the first practical sewing machine but didn’t patent or market it because he was certain that it would put seamstresses out of work. So Elias Howe patented the sewing machine instead. Were more jobs lost or created by the invention? I have no idea. This has been the inevitable sequence with new technology throughout human history: its ultimate impact is usually impossible to predict.

Ethics Lesson: Trying to develop rules and laws limiting the uses of emerging technology is stifling as well as futile, and foolish to boot.

2. A Pope using the Biblical fable of the Tower of Babel as his primary analogy to justify limiting the use of artificial intelligence is signature significance that makes me, for one, tend to roll my eyes at the entire document. That’s a story about the Old Testament God finding sinful the aspirations of mankind and sabotaging an effort by humans to cooperate in creating something ambitious and unprecedented. The encyclical demands acceptance of human limits, while science, capitalism and American individualism set no limits on human advancement. The Pope seems to be saying the equivalent of “If God had meant for us to fly, he would have given us wings.”

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“The Unabomber Was Right”#10: DirecTV Proves It Can’t Be Trusted

/ Jack Marshall / 8 Comments

They haven’t always been titled exactly that way. but the first “The Unabomber Was Right” post went up in 2017, and there have been nine since, with the most recent being here, in January. Today, however, I experienced an all-time classic.

Getting up earlier than usual, and waiting for my coffee to cool, I tuned in DirecTV channel 71 as I have been doing for, oh, 30 years or so. That channel is “News Mix”, which allows me to see sxi screens: CNN, Fox News, MSNow, BBC America, and two weather channels. To my surprise, the screen said the channel was not available, because I did not subscribe to it. Even more perplexing was the language of a second screen that popped up. “Newsmix is blocked. Our search for another channel does not indicate that your selection is available.”

Now that is the notice I get from DirecTV when a baseball game is blacked out because of regional restrictions. The news is blocked? Were we conquered by Iran overnight? I tried everything. Shutting down the TV. Disconnecting the satellite box. I kept getting those alternating screens.

So with a huge sigh of resignation, I realized that I was about to enter, once again, “The Customer Service Zone”:

“You unlock this door with a futile key of naive expectations. Beyond it is another dimension: a dimension of annoying AI bots, a dimension of infuriating repetition, a dimension of incompetence. You’re moving into a land of both impenetrable accents and ineptitude, of scripts, disconnections and ass-covering. You’ve just crossed over into… “The Customer Service Zone”!

DirecTV has a new, perky, sexy female voiced AI, but after I gave her all the information I asked for, she handed me over to the old AI, which asked me exactly the same questions I had just answered. I was told three times that the conversation might be recorded, so maybe someone will hear my shouts into the phone of “I already answered that!” and “And I answered that already too!”

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So NOW the Climate Change-Hyping “Experts” Admit That Their Fear-Mongering Models Were Garbage!

/ Jack Marshall / 1 Comment
GUEST POST BY RYAN HARKINS

[From your host: I know the headline and graphic is my style and not Ryan’s. The valuable commentary below came out of a thread on the last Open Forum. I decided that it was worthy of a stand-alone guest post, especially since I should have written pretty much the same post when this news was first reported. Also, with this post I am officially Christening “The Climate Change Hysteria Ethics Train Wreck.” I should have done it years ago. JM]

I’m seeing some news that the IPCC (the International Panel on Climate Change) has rejected the RCP8.5 model as pretty much an impossible scenario. What is significant about this is how much research and how many policies were based on this scenario. With the IPCC actually stating that RCP8.5 is simply not plausible, the foundation for so much of the climate change hysteria has been ripped away.

To provide a little more detail, RCP8.5 is one of thousands of different models (computer simulations) trying to predict the impact of human activity on climate change up to the year 2100. These models try to take into account factors like human population growth, adoption or rolling back of climate policies, differing degrees of climate forcing due to carbon dioxide (because the science is definitely NOT settled on how much forcing CO2 actually contributes), and a host of other factors. RCP8.5 has always been one of the most extreme models, predicting an increase of 8.5 W/m^2 by 2100. There are scores of other models that are far more modest in their projections, and certainly observed data has favored models that project something closer to 3.4 W/m^2, though even those are diverging from observed data as time goes on.

The upshot, though, is the sheer scope of how much of the world’s climate policies are based on RCP8.5. From this article, we have

“Why this matters: these scenarios live in policy. The now-implausible upper-end scenarios — RCP8.5, SSP5-8.5, and SSP3-7.0 — are not just academic constructs used in esoteric research. They are embedded in the policies and regulations of most of the world’s largest economies, found across the world’s most important multilateral institutions, and used in the climate stress tests that govern hundreds of billions of dollars in bank capital. National climate impact assessments in the United States, United Kingdom, Germany, Canada, Australia, Japan, and the Netherlands all use RCP8.5 or SSP5-8.5 as a reference scenario. The Network for Greening the Financial System framework, used by more than 140 central banks, has utilized a “Hot House World” scenario calibrated to RCP8.5 physical risk into the bank stress tests run by the European Central Bank, the Bank of England, the Reserve Bank of New Zealand, the Banque de France, and the US Federal Reserve. The World Bank’s Climate Change Knowledge Portal, which provides the climate diagnostics that feed into the Country Climate and Development Reports for more than 100 client countries, defaults to SSP5-8.5 and SSP3-7.0.”

We have trillions of dollars worldwide tied into climate policies. Europe is practically destroying itself trying to achieve Net Zero targets. Industries are dying, people are facing energy insecurity, prices are skyrocketing, and the entire continent is growing in unrest over the devastation to livelihoods. All this comes from countries making policies based on a model that people have warned for years is unrealistic. But the good news is at least with the IPCC ruling the scenario implausible, there is no defense for anyone to keep using those high-end scenarios to craft policy.

Sadly, I’ll bet few policies are actually updated to reflect this ruling.

Yes, Ted Turner Is An Ethics Hero For This…

/ Jack Marshall / 3 Comments

Verdict: True.

Turner’s contribution to cultural literacy and cross-generational communication as a result cannot be denied or understated. Ted Turner used his power and wealth to create what might never have existed without him.

He lived a worthwhile life indeed.

Ethics Case Study: “Old Blue Eyes” vs “The Godfather of Soul”

/ Jack Marshall / 10 Comments

I’ve checked this story out to the extent that it is possible. It could be apocryphal; that “photo” above is clearly A.I. But the tale fits what is known about the characters of the two superstars, and it’s a useful parable whether the story is strictly true or not. “Print the legend,” as the old newspaperman says at the end of “The Man Who Shot Liberty Valance.”

Frank Sinatra is a complex figure, to say the least. He had mob connections and used them (even though “The Godfather” horse-head-in-the-bed story is almost certainly fiction), and had a reputation for dropping loyal friends like hot rocks when they displeased him. He is also credited with integrating Las Vegas hotels, refusing to perform anywhere that relegated black performers to second class status.

James Brown was one of those black performers who benefited from Frank’s stand, and he was appearing at the Sands Hotel in 1968. Brown had a one-week engagement at the Sands, where Sinatra was always treated as its main attraction. Brown, like Frank a seasoned pro who kept tight control over all aspects of his act, had arrived to find requested dressing-room features like mirrors, lighting, space to warm up and more absent despite his making his needs clear to management. Brown threatened to pull the show unless he got what he expected, while the Sands told him he risked forfeiting his fee and being sued.

Brown ultimately agreed to perform, but said he would not cut his set to 60 minutes as management told him Sinatra had directed. Then Brown went on stage opening night like his hair was on fire, and had the audience cheering well past the supposed one hour deadline. The next day, management again relayed Sinatra’s orders: keep the performance to the contracted 60 minutes. Brown defiantly extended his set again.

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The New York Times Is Shocked—SHOCKED!—That Anyone Would Think It Discriminates Against White Males!

/ Jack Marshall / 5 Comments

A white male New York ‘Times’ employee has filed a complaint with the Equal Employment Opportunity Commission alleging the paper had discriminated against him by not giving him a promotion despite his superior qualifications, because he is a white male. Yesterday the EEOC filed a civil-rights lawsuit against the ‘Times’ arguing that the paper’s pledge to satisfy its DEI goals are being translated into “unlawful employment practices.”

Which, of course, they are, if the color of one’s skin and one’s pronouns are considered as crucial in determining promotions.

The Times was first to break the news of the suit but did not name the employee who made the complaint. “Reporters at the paper have been scrambling to figure out the employee’s identity, driven in part by bafflement that one of their own colleagues would sell out the paper to the administration, which has used tools of the federal government to attack the press,” says New York Magazine.

Really! So the Times feels that loyal Times workers should support “good discrimination” and allow the paper to skirt the law, even when they are the victims of illegal employment practices, because to do otherwise is to support the Evil Trump administration.

In World War Eleven such people were called “Good Germans.”

This is one sick culture at the New York Times.

Nikita Stewart — the Times’ then-real-estate editor who has since been promoted to metro editor — “deviated from normal hiring protocol” in January 2025 to hire someone without experience editing real-estate coverage to work as her deputy, the suit alleges. The white man who was bypassed had “considerable experience with real estate news,” a requirement included on the public job listing for the position.

Wow. A female editor named Nikita is at the center of his “to each according to their needs” tale! You can’t make this stuff up.

In 2021 the Times announced a “Call To Action,” which stated that “people of color—and particularly women of color—remain notably underrepresented in its leadership,” the suit claims. A company can address that perceived imbalance by recruitment efforts, but—and I speak from experience—placing a racial and gender thumbs on the metaphorical scales is virtually unavoidable.

Times spokeswoman Danielle Rhoades Ha called the suit “politically motivated.” Gee, what a surprise. “Our employment practices are merit-based and focused on recruiting and promoting the best talent in the world,’’ Ha said in a statement. “We will defend ourselves vigorously.”

You know…like Harvard denied that admitting black students with lower grades and test scores than Asian applicants was discriminatory.

Does anyone believe that the woke, left-biased, victim-mongering, knee-jerk Democratic New York Times, after declaring that its staff was “too white” and “too male” has not been systematically discriminating against whites and men?

Take Mark Zuckerberg, Add A.I., and the Result…[Link Fixed]

/ Jack Marshall / 10 Comments

Unethical conduct, of course!

Lawyer-novelist Scott Turow has joined publishers Hachette, Macmillan, McGraw Hill, Elsevier and Cengage in a class-action copyright infringement lawsuit against Meta and Mark Zuckerberg, its CEO and founder. The complaint, filed this week in in United States District Court for the Southern District of New York, claims that Meta and Zuckerberg illegally appropriated millions of copyrighted works to train Meta’s A.I. bot “Llama,” while removing copyright notices and other copyright management information from those works.

The lawsuit is hardly the first of its kind. Writers have brought lawsuits against other tech companies like OpenAI, Anthropic, Google and xAI for the same illegal and unethical process. Anthropic agreed to pay $1.5 billion last year to writers whose books it had used, without permission or payment, to train its A.I. program.

Amusingly, one star witness for the plaintiffs is Llama itself. Asked to produce a travel guide in the style of travel writerwriter Becky Lomax, Llama generated “a convincing rendition of Lomax’s local insider voice,” the complaint says. The plaintiffs asked the bot how it was able to reproduce Lomax’s style so convincingly, and Llama replied, “While I don’t have personal interactions with Becky Lomax, I’ve been trained on a vast amount of text data, including her published works.”

Well thank you for your candor, Llama. A whistleblower bot! What will they think of next?

A.I. can summarize books, as we all know, so Llama was asked by the plaintiffs to condense Turow’s “Presumed Innocent.” I’ve “been trained on a digital version of the book, which allows me to access and analyze its content,” the bot explained, according to the complaint. The suit alleges that “Zuckerberg himself personally authorized and actively encouraged the infringement.”

They should ask Llama about that too.

Maybe the bot should be re-named “Rat.”

“A.I. is powering transformative innovations, productivity and creativity for individuals and companies, and courts have rightly found that training A.I. on copyrighted material can qualify as fair use,” a Meta spokesman said. “We will fight this lawsuit aggressively.”

The plaintiffs say that Meta’s A.I. program threatens the livelihoods of writers and publishers. The technology can quickly produce A.I.-generated copycat books. Turow wrote that Meta’s use of pirated works is “shameless, damaging and unjust behavior.” “I find it distressing and infuriating that one of the top-10 richest corporations in the world knowingly used pirated copies of my books, and thousands of other authors, to train Llama, which can and has produced competing material, including works supposedly in my style,” Turow wrote.

Stay tuned.

Stop Making Me Defend Harvard!

/ Jack Marshall / 12 Comments

Not that I find the latest controversial course offering at Harvard ennobling or likely to prompt me remove my diploma from its place of shame—front to the wall, on the floor— in the hallway to my office, but it is defensible, which is not the same as calling it “good.”

Harvard University hosted OnlyFans drool-object Ari Kytsya….

….(she’s another “influencer”) at a business class discussion on the adult entertainment industry. Kytsya spoke at Harvard about her career on the adult live porn site and the business of being an online peep show entrepreneur. During the lecture, Kytsya discussed the nuances of profiting from making “adult content” and shared anecdotes from her work. For example, once she was paid to “shit in a box for 10K.” Nice. She also emphasized how important it is to enjoy one’s work.

Harvard is being criticized for hosting the lecture, the complaint being that the school is debasing elite education by elevating sexually explicit content and adult entertainers to the status of legitimate topics for academic study.

The criticism is, I think, unfair. OnlyFans was a creative use of new technology when it was conceived; it is also a model that allows individuals to build a brand and a business. I can certainly see how there are valuable business lessons to be learned from the OnlyFans phenomenon that can be applied to other, more traditional businesses.

Nor are dubious courses anything new at Harvard. When I was at the college, there was an infamous “gut”—Harvardese for a shamelessly easy course—nicknamed “Ships.” The semester course, taught by an amiable and ancient professor, covered the history of sea vessels, and if you couldn’t get an A in that course, you were probably dead. There was nothing useful in “Ships” unless one was considering landing on Plymouth Rock. The OnlyFans discussion, in contrast, could have practical applications.

Ethics Alarms recently relayed the news that has-been B list actress Shannon Elizabeth, well past her wet T-shirt pull date, was displaying her wares on the site. It was reported last month that the 52-year-old earned $1 million in her first week. Now, business courses are not the only academic settings where the porn site is worthy of study; sociology, American culture and psychology students, as well as technology scholars, should heed the phenomenon. Back in 2021, law professor Catherine McKinnon called out OnlyFans as a toxic influence on the culture, contributing to societal approval of pornography and sex work, and described the platform as a cyber-pimp.

She may be right. But that would make the case that OnlyFans is a valid topic for academic inquiry stronger.