The “Homeland” Dilemma

In “Homeland,” Showtime’s excellent Emmy-winning drama starring Claire Danes, a G.I. named Nick Brody imprisoned for years returns to the states a hero, and, secretly, a converted Muslim and terrorist. By Season Two, which premiered last night, Brody has risen to be a member of Congress, where he is working from the inside to benefit the interests of his captors. He has kept his conversion to Islam secret from everyone but his teenage daughter Dana, who accidentally caught him praying to Mecca in the basement in the first season.

Now Brody’s name is being floated as a possible running mate for the current Vice President, who is a presumptive presidential nominee. The Veep tells Congressman Brody that if there are skeletons in his closet that his researchers wouldn’t have found—I’m pretty sure being a secret terrorist would qualify—Brody needs to air them. Brody says there aren’t any. We know better.

Meanwhile, at Sidwell Friends, the tony Quaker private school in D.C. that all the pols send their kids to, Dana is fuming because she has to listen to the  Vice-President’s obnoxious son  go on about how “Muslims aren’t like us” and “don’t respect human life.” Dana, having been admonished for insulting him, blurts out, “Well, my father’s a Muslim!” in class.  Dana’s subsequent position is that she was joking to make a point. At home, however, her outburst causes a domestic crisis, as her mother feels that Brody has been lying to her, which he has.

I’ll leave Rep. Brody out of this ethical dilemma, as he is suffering from an Islamic strain of the Stockholm Syndrome, but what about the family? From their perspective, which is that they don’t suspect for a second that Brody is a traitor, what is their ethical obligation should he announce that the Vice President is going to choose him as a running mate, and that he expects them to keep his secret?

His argument, of course, is that his religion shouldn’t and doesn’t matter. It is true that the “public would want to know,” and also that the public would probably not feel very comfy electing a Muslim these days to be a heartbeat away  from the Presidency, fair or not. The family knows he is a good man (they think) and like the idea of being Second Family; there is no reason to sink his career and their aspirations to celebrity by allowing irrational bigotry to take hold. Is there?

That’s not the whole truth, however. Brody has lied to the Vice President and to his constituents, and they do have a right to know that. In my view, both wife and daughter have an ethical duty as citizens to tell husband and father that if he accepts the nomination, they will be forced to expose him. They should also tell him that he needs to resign from Congress, or, if he’s willing, tell the public about his deception and ask for their forgiveness. I think, in short, that this is a John Edwards situation.

Is that what you would do, in their place?

And my favorite hypothetical of them all, that I refuse to believe wasn’t lurking in the minds of the writers:

Michelle discovers Barack praying to Mecca in the basement.

Tomorrow.

What would be her ethical duty?

Jury Summation: 20 Conclusions Regarding Elizabeth Warren’s Law License Controversy

1. Elizabeth Warren may have engaged in the unauthorized practice of law in Massachusetts at various times.

2. It is not as clear that she has done so as her primary accuser, Prof. Jacobson, appears to believe, nor is it as certain that she has not done so as her reflexive defenders assert.

3. If she did practice Massachusetts law without a license, it is very unlikely that she did so intentionally.

4. It is also likely that at this moment, she herself is unsure whether she did or not.

5. I very much doubt that if she did as Prof. Jacobson asserts,  that would lead to discipline by the Massachusetts Bar. The discussion of the issues surrounding Warren’s situation make it clear that a) the whole area of unauthorized practice when it involves state and Federal law is relatively unresolved and murky, with even  legal ethics experts in disagreement, b) it would be impossible to separate the professional regulation of the matter from its political content, and 3) any time members of the disciplinary committee slap their foreheads and say, “Damned if I know!” when the discussion turns to what the rules require, discipline is unlikely, and properly so.

6. The fact that Warren may have blundered into UPL between the varying requirements of her two bar memberships and her intermittent practice in Massachusetts does not make her unfit to practice law.

7. It may, combined with her unwillingness to candidly and thoroughly reveal all documents that bear on the issue, call into question her fitness to be a U.S. Senator, especially one running on the proposition that regulations on another profession (the financial sector) need to be strictly followed and tightly enforced. It definitely is worth exploring and explaining to voters, which the mainstream media clearly does not intend to do. Continue reading →

“And Now We Welcome You To Another Episode of “As The Media Shrugs”! Elizabeth Faces Exposure As a Dishonest and Unlicensed Lawyer…Will She Finally Reveal The Truth? Will Voters Care?”

“Nope, no way to Texas; can’t get to New Jersey…maybe I should just bite the bullet and get a Massachusetts law license? Nawww, who’s going to care?”

No major newspapers or broadcast news outlets seem to care, but what was originally dismissed as a partisan blogger’s over-reaching accusation has been bolstered by more than one smoking gun, proving Elizabeth Warren’s untrustworthiness and lack of fitness for high office.

Robert Eno of Red Mass Group, who joins Prof. William Jacobson as a blogger doing dogged and necessary research on the Massachusetts Senate candidate, has convincingly shown that Warren’s justification of her practice in Massachusetts, sans law license, doesn’t work, because what she says can’t possibly be true.

Earlier this week, Warren tried to rebut Jacobson’s allegations by explaining, “I haven’t practiced any law since 2010 since I went down to do the Consumer Financial Protection Bureau. I’ve been a member of the bar in Texas for all of my career, in the Supreme Court bar, and until a few weeks ago the bar in New Jersey.” Warren and her defenders also argued that Jacobson’s claim that she was operating a regular law office out of her Harvard faculty office, which would make her an unlicensed Massachusetts practitioner, was inaccurate. Warren periodically was involved in cases in Federal court, which did not require a  Massachusetts license, they said. All that was necessary for Warren to appear before various Federal Courts was for her to be duly licensed in a state or territory, and file a statutory request to the court to appear.

Warren’s problem: it is beginning to appear that she may not have been properly authorized to practice law anywhere, or, if she was, she had to be using her Harvard office as a regular law office, meaning that she was practicing Massachusetts law. Without a license.

Here is what Eno discovered:

1.  Warren says she has been a continuous member of the Texas bar,which is technically true but misleading. After following her constantly changing spin while explaining her undocumented status as an affirmative action beneficiary, I believe misleading us is her intent. Yes, she has been a member of the Texas bar during her whole career, but during most of that period she was not allowed to practice Texas law, which was the topic under discussion when Warren cited her membership. Kim Davey the Public Information Officer for the State Bar of Texas told Eno that Warren has been on inactive status in Texas since June 1, 1992. Inactive status means a lawyer is not authorized to practice law. Warren says that she only stopped practicing law (while living and working  in Massachusetts) in 2010, which means that she could not rely on her Texas license while she was at Harvard.

2. Thus it must have been her New Jersey law license that made Warren eligible to appear in Federal Court. But there’s a problem there, too. New Jersey rules hold that a lawyer can only be a licensed attorney in good standing in New Jersey if that lawyer maintains a bona fide office for the practice of law. The office can be in any state, but it must qualify as a law office, or New Jersey’s license to practice law is no longer valid.

This means that Warren is mired in a Catch 22. If, as her defenders and Warren have maintained, she was not engaged in the practice of law because her Harvard office did not constitute  “a systematic and continuous presence in Massachusetts for the practice of law” (because Warren was just a typical Harvard law professor who now and then helped write a few briefs for the U.S. Supreme Court and out-of-state federal courts), then she could not meet New Jersey’s licensing requirements, and was practicing law without any valid law license in any state once she went on inactive status in Texas. If, in the alternative, her Harvard office was a bona fide office for the practice of law, rather than a place where she just “dabbled,” then she was practicing in Massachusetts without a Massachusetts license. Continue reading →

More Revelations Regarding Elizabeth Warren’s Alleged Unauthorized Practice of Law, and Why This Matters

Prof Jacobson, on his blog Legal Insurrection, is in line for an Ethics Hero award with his tenacity regarding Elizabeth Warren’s dubious qualifications to engage in the practice of law in  Massachusetts. The overwhelming reaction by his colleagues in legal academia, and mine in the legal ethics community, has been to airily dismiss his arguments as trivial, far-fetched and thinly disguised political warfare, since Jacobson is an unapologetic conservative blogger (and a distinguished one.) Meanwhile, the mainstream media has, I think it is fair to say, completely ignored the story.

Part of this is undoubtedly because of the ignorance of most journalists regarding the importance of the legal ethics rules in question. Part of it is probably due to the accurate assessment by editors and TV news producers that the average American’s brain would switch off right around the time the story mentions Massachusetts Rule of Professional Conduct Rule 5.5 Subsection (c), and will start wondering about how Blair from “The Facts of Life” is going to do on “Survivor.” And part of it, infuriatingly, is because most journalists are willing to forgo the ethical duties of their profession in order  to ensure that a Democrat wins back Ted Kennedy’s Senate seat, and character be damned.

The rude brush off Prof. Jacobson is getting in this wagon-circling exercise is wrong in every way, and does injustice to every person and institution involved, including the Massachusetts legal establishment, the legal profession, ethical lawyers (which, believe it or not, the vast majority of them are), Senator Brown, the U.S. Senate, Massachusetts voters, and the American public. Bar associations across the country regularly punish ordinary lawyers who practice law without proper authorization, and there is a reason: a lawyer who won’t or can’t obey the most basic requirement of the profession—be sure you are practicing law legally—should not be trusted to handle the important transactions and controversies of their clients’ lives. Continue reading →

“Your Boss Is Insane”

On the site Learn Stuff, Sarah Wenger has produced an infographic with a strong ethics message, aimed at the vast number of people in management and supervisory positions in business who abuse their position and power, making those they lead miserable, unproductive, and insane themselves. How many horrible bosses inflict themselves on the nation? That is a mystery, though we know it’s a lot. Incompetent, unfair and irresponsible supervisors at all levels,  as the feature states,

“cost their employees their health and the U.S. economy some serious cash. Employees with bad bosses can lose their hair, gain weight and up their chances of heart disease by a whopping 25%. And to top it all off, poorly managed workplaces are less profitable and have lower levels of productivity. Psychopathic bosses: bad for you, bad for the economy.”

The problem is that management is hard, leadership is harder, formal training in either cannot cure personality defects that make being successful in these two endeavors unlikely, and because truly talented managers and leaders are so rare, most people rise to positions of power without ever experiencing what effective leadership is. A good starting point for any boss is a commitment to fairness and respect, as well as an understanding of what responsibility and accountability mean. That, of course, means ethics.

Here is Sarah Wenger’s infographic, “Your Boss is Insane,” re-published with her permission: Continue reading →

More From Prof. Jacobson On Elizabeth Warren’s Law License

Uh, guys? Do you even care what really happened any more?

[ Original post here]

He has read various critiques of his analysis and allegations, and addresses them here. Jacobson also spoke with the much quoted General Counsel of the Mass Board of Bar Overseers, and confirmed that  Michael Fredrickson was not speaking officially or on behalf of the BBO, but rather giving his personal opinion.

For my part, I am dismayed, if not shocked, that the legal establishment, as well as legal ethicists who should know better, are letting their political biases dictate their analysis. It is true that Jacobson is an openly conservative blogger as well as a long-time critic of Warren, but he raises legitimate questions that deserve to be taken at face value, whatever their source. The fact Fredrickson, the BBO General Counsel, felt it necessary to personally defend Warren in the absence of sufficient facts strongly suggests a pro-Warren bias in the disciplinary system, where it really shouldn’t matter who breaks the rules, but whether or not they have. Similarly, over at the Legal Ethics Forum, legal ethics legend Monroe Freedman comments,

“It surprises me that so much commentary has been expended on such a relatively unimportant issue, which apparently was raised in the first place to embarrass a candidate for the Senate in a race that has matters at stake that could affect the future of the country.” Continue reading →

Confession of Faithless Fan

The 2012 Red Sox season

I’ve been meaning to write this post for more than a month, almost two., for it has been that long since I have watched a Boston Red Sox game, or indeed any baseball game at all. This, I knew, was complete abdication of everything I believe about loyalty, courage, faithfulness and gratitude, yet I could not force myself to meet my own standards, and I am ashamed.

For I hate sports fans like that, feckless, fair weather, Sunday soldiers who root loudly for their team when things are good, and who defect to the booers and the doubters when the tides of fortune turn. I have been the most loyal and faithful of Boston baseball fans since my childhood. I watched or listened to every game when the team was annually awful, from 1962-1966, and yet got reserved seats for the final series of the 1967 season a year in advance, because I thought, absurdly, that the team might be in a pennant race. (And I was right!) I endured team collapses and disappointments in many seasons since—all the famous ones, and others that only a dedicated lifelong fan would remember.

What happened to me this year? Continue reading →

Well, There Goes Elizabeth Warren’s Legal Ethicist Vote! (UPDATED)

On the positive side for Prof. Warren, at least she may be able to  truthfully say that in Massachusetts, she’s more Cherokee than lawyer…

As thoroughly researched by Cornell Law Professor ( and conservative blogger) William Jacobson, Democratic Senate candidate Elizabeth Warren practiced law in her Cambridge, Massachusetts office for more than a decade without ever being licensed to practice law in that state. His findings are here. Continue reading →

Ethics Heroes: Papa Roach

Ethics Alarms’ 2011 Commenter of the Year tgt, who found this story and passed it on, asks,

“How is a horrible stoner rock band more ethical than everyone in politics?”

It’s a great, if sorrowful, question.

A.V. Club has a feature (which could be called “Start a Feud”) in which it asks a rock performer what song he or she hates, and why.  Jenn Wasner, one half of the Baltimore indie-folk duo Wye Oak (“a blend of Southern culture and Northern sensibilities…”) submitted to this invitation to get in trouble, and fingered the song in the video above, “Scars,” by Papa Roach.

Criticizing the work of other artists in the same field is unprofessional at best, gratuitously unkind and disrespectful. Papa Roach’s members would have been within their rights to fire back something less than complimentary in defense, at very least the observation that ethical musicians don’t take gratuitous shots at one another. What the band did however, was this: it sent Wasner flowers. Wasner was convinced it was some kind of diabolical trap, and tweeted as much. The band tweeted back: Continue reading →

Cruelty and the Comers: At a Certain Point, Being Nice Just Makes It Worse

Meet the Comers

The nauseating news story of the week comes from L.A., where 18-year-old Mitch Comer was seen looking emaciated and confused in a downtown Greyhound bus station. A hundred pounds and 5’3″ tall, the boy seemed lost, and a security guard questioned him. Comer explained that he had just arrived from Georgia, where he had been imprisoned in his parents’ basement since his father pulled him out of an 8th grade class four years ago. Then, on his 18th birthday, they released the boy, and his stepfather took Mitch to the bus station, where they had a touching goodbye

“The story we got was that the stepfather took the kid to the bus depot, said ‘Here’s $200, here’s a list of the homeless shelters in Los Angeles, you’re a man now and don’t come back,'” said LAPD Commander Andrew Smith. This won Paul and Sheila Comer, who live in an affluent Georgia suburb, child abuse and false imprisonment charges as well as a nomination as 2012’s Monstrous Parents of the Year. Continue reading →