Ethics Train Wrecks

OK, Facebook Friends, Let’s Pretend It Isn’t Kavanaugh…Let’s Pretend It’s ME.

/ Jack Marshall / 91 Comments

I’ve had this post composed in my head for some time, and have hesitated to complete it. I really don’t like upsetting people I care about, much as some might think otherwise.

However, there has been such escalating fanaticism on Facebook (and elsewhere, of course), ringing through the echo chamber, about how Dr. Ford must be “believed” and how the judge is a “serial rapist,” I have to ask: would you all treat me this way? Would you react to seeing my career and reputation derailed by the sudden appearance of a high school acquaintance who announces that she has only recently come to realize that I had sexually assaulted her at a party? After hearing my denials, would you decided to determine that her account, with no verification by any witnesses, with the large amount of time past and with absolutely nothing in my record, professional or private life, to suggest any such proclivities, should be sufficient to have me labelled as untrustworthy?

Don’t resort to the “but he’s going to sit on the Supreme Court” trick. I’m a professional ethicist: an accusation that is widely metastasized into doubts about my character, including using it to tar me a liar, would be just as ruinous to me as the late hit on Kavanaugh is disastrous to him. There is no “well, this is wrong UNLESS its a Supreme Court nominee” principle: that’s a pure rationalization. No, if the Ford accusation, with all of its flaws, its basis in fading and rediscovered memories, the fact that it involved juveniles, all of that, and the objective professional observations by Rachel Mitchell that found several reasons why Ford’s testimony was incredible, is still enough to allow you to condemn Judge Kavanaugh, then it must be enough for you to condemn me too.

But I’ll make it easier for you: let’s say its me that is the current Supreme Court nominee, and me that your favorite party has condemned as a threat to civilization. (And lets assume that you haven’t read any of my judicial decisions either.) Continue reading →

Morning Ethics Warm-Up, 10/5/18: The Brett Kavanaugh Nomination Ethics Train Wreck STILL Keeps Rolling Along, But There’s Always Baseball, So Hope Survives

/ Jack Marshall / 14 Comments

Good Morning!

1. Ethics Dunce, Brett Kavanaugh Nomination Ethics Train Wreck Division: Retired Justice John Paul Stevens, who has already set a record for Supreme Court justices making post-career foolish statements that undermine their reputations, just violated a previously unbreached principle of professional ethics and protocol for ex-Justices. He told a private group that Kavanaugh doesn’t belong on the Court because of his “temperament.” I was thinking of ranking the rapidly proliferating bogus excuses for voting down Kavavaugh (I posted this instead). The temperament one is near the bottom of the barrel, in a layer or two above throwing ice and the comments in his yearbook. In his entire judicial career, there have been no incidents of unprofessional temperament or demeanor, and somehow I think that if any sitting judge was accused of being a rapist by a witness or a lawyer in his courtroom, an outburst of anger would be considered excusable. It’s a bad and unfair “gotcha!” argument by Democrats, but even it it was valid, Stevens is not supposed to be commenting on who belongs on the Court….just as Barack Obama should not be attacking his predecessor after George W. Bush was so exemplary in not attacking his successor.

2. Weird baseball ethics. I meant to include this one yesterday. In the Colorado-Cubs wild card play-off game, runners were on first and second with one out when a slow bouncer was hit to Rockies third-sacker Nolan Arrenado just as Cubs runner Javy Baez approached him on the way to third. Arenado tagged Baez out, and Baez wrapped his arms around him. Meanwhile, the runner on first went to second, and the batter reached first. Arenado smiled and disentangled himself, but he didn’t–couldn’t—throw to either base for another out.

It was absolutely interference. A runner can’t do that, but the umpires didn’t call it (the double play would have been called without a throw, and the inning ended), so the frame continued.  The game was close, and if the Cubs had scored (they didn’t) that inning, it would have been because Baez broke the rules and the umpires didn’t notice (or care). The announcers opined that Arenado didn’t “sell it,” that if he had violently pushed Baez away and tried to make a throw, interference might have been called. Instead, he smiled and treated Baez’s hug  like a sentimental show of affection.

Once upon a time, before player unions, huge contracts and routine fraternization, no player would have expressed friendly amusement as Arenado did. Nolan is the Rockies best player, and he stopped concentrating on the game. Only moral luck stopped it from being a disastrous lapse. Continue reading →

I Break My Own Rule And Publish A Social Media Meme…

/ Jack Marshall / 15 Comments

Here it is:

The Ethics Incompleteness Principle holds that ethics rules don’t always work in anomalous situations. An Ethics Alarms rule is that internet memes are simple-minded agitprop, lazy ways for the uninformed and the critical thought-challenged to circulate pre-digested talking points and partisan distortions. I hate them.

But I was actually beginning work on a flow chart of the constantly changing arguments against the confirmation of Brett Kavanaugh, and this magically appeared. (Pointer: Instapundit)

It’s perfect, fair, and true.

Bravo.

Look! An Ethics Dunce Mob: 2,400+ Law Professors

/ Jack Marshall / 73 Comments

“My mind may be mush, but I can get 2400 colleagues to agree with me anyway!”

In the New York Times: The Senate Should Not Confirm Kavanaugh Signed, 2,400+ Law Professors

One of the most disillusioning aspects of the epic 2016 Post Election Ethics Train Wreck, the worst and most damaging of them all, has been the serial disgrace of one profession after another as they abused their public trust, ethics codes, core values, and expertise. Psychiatrists, physicians, lawyers, journalists, academics, educators, judges, elected officials, pundits, journalists, law enforcement officials and more: so many have sided with partisan mobs when the nature and mission of what makes them valuable society demand that the professionals  remain neutral and objective. Law professors have been particularly fond of disgracing themselves since President Trump’s election, and almost all of them are Democrats,  so seeing over 2400 of them sign a statement that can stand as a warning to all against taking pronouncements from this particular group of  legal academics seriously is hardly a shock.  It’s still discouraging.

What is unethical, as well as dumb, about this stunt, for stunt it is? Let us count the ways.

1. It is grandstanding and virtue signaling designed to mislead the public, and seed further division, if that’s possible. Every one of these professors can have their own individual opinion about the Kavanaugh nomination, but it is no better, or more influential, nor should it be, than yours or mine. They seek to increase their influence by amassing thousands of personal and biased opinions into a single loud one masquerading as a professional opinion, which it is not.

2. The number 2400 is inherently misleading. This isn’t close to a majority of the law professors in the country. It’s not close to a majority of the Democrats and progressives in the profession. Most of the public, however, doesn’t have continuing relationships at law schools, haven’t worked for them, haven’t graduated from one, or taught at one, like, say, me. The petition is designed to deceive. There are more than 20,000 law professors in US Law schools. Now we know at least 10% appear to be unfit to teach law.

3. The letter is completely irrelevant. Nobody in the Senate cares what a group of liberal law professors want. No Senator is going to read this opinion and say, “Oh, no! I guess I better vote against Kavanaugh: a boatload of professors I’ve never heard of think I should!” Continue reading →

Morning Ethics Warm-Up, 10/4/18: On Baseball, Mocking Ford, Apologies, and “Tax Schemes”

/ Jack Marshall / 48 Comments

Good Morning!

[BOY its been hard keeping up on ethics blogging between air travel, a balky laptop, seminars, the new firm and, most of all, ushering the Red Sox to a World Championship. Yesterday was classic: I had multiple posts composed in my head, and literally was never able to find time to work on them. I’m sorry. I’ll figure it out…]

1 Baseball ethics: The exciting Cubs-Rockies Wild Card elimination game was set up by the Colorado 12-0 win over the Washington Nationals on the final day of the season. Thus the Rockies ended the season in a tie with the Dodgers on top of the NL West, requiring one of the two tie-breaking games on Monday. These were ratings bonanzas for baseball and the networks showing them, leading to conspiracy theories regarding that last Rockies victory.  Max Scherzer, arguably the best pitcher in the league, was supposed to start the game fr Washington, and if he had, its safe to say that the Rockies would not have won 12-0, if at all. Reportedly he wanted to start the game, but the Nationals decided late to start the immortal Eric Fedde. Were they trying to give the game to the Rockies? Did orders come down from MLB to tank?

The theory makes no sense, because the suits and networks are always rooting for the big media centers and their teams to make it to the World Series. The Dodgers, Red Sox, Yankees and Cubs mean big ratings, and the Rockies posed a threat to the Dodgers and ended up eliminating the Cubs. Nonetheless, a team like the Nats, out of the race, running out the string, should have the professional integrity to go all out to win when a game is important to its opponent.

2. I’m not going to demand an apology, but they still owe me an apology. The Hill is reporting that…

Congressional investigators have confirmed that a top FBI official met with Democratic Party lawyers to talk about allegations of Donald Trump-Russia collusion weeks before the 2016 election, and before the bureau secured a search warrant targeting Trump’s campaign.

Former FBI general counsel James Baker met during the 2016 season with at least one attorney from Perkins Coie, the Democratic National Committee’s private law firm.

That’s the firm used by the DNC and Hillary Clinton’s campaign to secretly pay research firm Fusion GPS and Christopher Steele, a former British intelligence operative, to compile a dossier of uncorroborated raw intelligence alleging Trump and Moscow were colluding to hijack the presidential election.

The dossier, though mostly unverified, was then used by the FBI as the main evidence seeking a Foreign Intelligence Surveillance Act (FISA) warrant targeting the Trump campaign in the final days of the campaign.

This is not exactly surprising, but it ticks me off for personal reasons. Several left-leaning commenters here who I respected and gave a lot of attention, abandoned Ethics Alarms in high dudgeon because I continued to question the growing evidence that the entire Russian collusion investigation was rigged, partisan, illegal, and an effort to bring down an elected President using a corrupt and politicized FBI and Justice Department. Here was one exit speech, and from a friend:

“But I can’t allow my own tiny voice to be associated with this nonsense any longer. Being the “left” voice is one thing; being way out on the fringe is quite another, and I don’t think it’s me that has moved. I see far too many shades in our times now of McCarthyism (not Gene), George Wallace-ism, and autocracy. I’m deeply concerned about the continued health and well-being of our democratic institutions. I suspect Rod Rosenstein will soon have no recourse but to resign, and I’m doing something similar. I don’t want to be party to this hysterical of a dialogue (in my humble opinion).”

Continue reading →

Your Tuesday Evening Brett Kavanaugh Nomination Ethics Train Wreck Report

/ Jack Marshall / 94 Comments

I. Let’s give a whole car to USC.

Nearly 100 students  attended a rally at noon on Monday demanding a tenured professor be fired after he sent a reply-all email last Thursday to the student body noting that “accusers sometimes lie.”

Professor James Moore, a tenured professor at the University of Southern California, replied to a campus wide email fatuously demanding that students  “Believe Survivors” on the day of Christine Ford’s testimony with a reply-all message that…

“If the day comes you are accused of some crime or tort of which you are not guilty, and you find your peers automatically believing your accuser, I expect you find yourself a stronger proponent of due process than you are now.”

For a teacher, this was a responsible and important point to make. It is also undeniable, except in dishonesty, ignorance and hysteria. So what was the campus response?  Hundreds of  emails from “concerned” students and alumni condemning the engineering professor. USC students Audrey Mechling and Joelle Montier  organized a Facebook rally against him, entitled “Times Up for James Moore.” Nearly 100 students gathered to shout, “Times Up, No Moore!” The crowd then paraded its bias and ignorance, and marched  to the office of Dean Jack Knott. He, of course…

...sided with the protesters...

“What [Professor Moore] sent was extremely inappropriate, hurtful, insensitive. We are going to try to do everything we can to try to create a better school, to educate the faculty,” said Dean Knott to the crowd. “This is going to be a multi-pronged effort. We are going to have a faculty meeting later this week around implicit bias, sensitivity towards [sexual assault]….”

That’s academia today! At Georgetown, a professor tweets that white males should be killed and castrated, and the administrators shrug and say she has a right to her opinion. AT USC, a professor corrects  indefensible cant that rejects basic ethical and judicial principles, and a dean says that he must be punished.

People actually pay to send their children to be warped by these places.

II. Let’s always believe survivors who know how to beat lie detectors.

The fact that Dr. Ford had been declared “truthful” in her polygraph test was always one of the worst reasons to believe her, but now that test throws legitimate suspicion on her account. The machines are notoriously unreliable, but the argument was that the fact that Ford was eager to take the test indicated her confidence in her account. Today, Fox News received this letter from a man who claims to be Ford’s ex-boyfriend:

Of course, it could be completely innocent that a woman who suddenly dredged up a forgotten alleged incident just in time to use it to derail the confirmation of a SCOTUS nominee her party opposes and submitted to a lie detector test as evidence of her veracity considered herself an expert on beating lie detector tests.

III. Ethics Hero meets Ethics Dunce Continue reading →

Stipulated, We Can’t Trust Polls, But This One Is A Harvard Poll, So…Well We Can’t Trust Harvard, Either, But Still It’s An Interesting Poll…

/ Jack Marshall / 28 Comments

We can see one reason why we can’t trust polls from these two headlines:

The Hill: “More Americans oppose Kavanaugh nomination amid partisan rancor.”

AOL: “Nearly two-thirds of voters believe Kavanaugh should be confirmed if the FBI finds no corroboration of the charges.”

We can’t trust polls because they are made to be spun.

The Harvard Center for American Political Studies /Harris Poll online survey of 1,330 registered voters was conducted September 29 to 30. The partisan breakdown is 37 percent Democrat, 32 percent Republican, 29 percent independent and 2 percent other. The full poll isn’t out yet, but here are some results, with my comments.

  • 37 percent of registered voters want their Senators to give Kavanaugh’s nomination the thumbs up, while 44 percent want their Senators to vote against him. But 18 percent of respondents are undecided.

And, apparently, a lot of those surveyed didn’t watch the hearings, don’t know that Dr. Ford’s accusations are unsubstantiated, and almost certainly haven’t read the report of the Committees expert prosecutor, who found them dubious based on her testimony. Thanks, Biased Mainstream Media! But the truth will out…

  • 44%  of men per cent want their senators to vote in favor and another 44% wanting them to vote against Kavanaugh. Among female voters, 44% want Senators to vote against confirming Kavanaugh, while 31% want him confirmed. 24% remain undecided.

Yes, more women are unfair and biased on this nomination. But who wouldn’t want to install a cultural norm where your gender was regarded as automatically unimpeachable, no matter who you accused. with or without evidence?

  • 45%  of independents currently “don’t back their Senators confirming Kavanaugh,” compared to 28% who want him confirmed.

That’s how The Hill puts it, which is why you can’t trust second hand descriptions of polls, either. “Don’t back their Senators confirming Kavanaugh” now, or ever? Continue reading →

Morning Ethics Warm-Up, 10/2/2018: Bigotry In, “Jeopardy” Out

/ Jack Marshall / 33 Comments

Good Morning.

I always play that clip when I need cheering up. It works, too.

1. How did we get to this sick, unethical and un-American place? The New York Times had an interview with America Ferrera in its book section. “Ugly Betty” was a long time ago, and I have no idea why Ferrera, a completely ordinary talent at best, has a career or is deemed important enough to warrant a profile, except that she is a professional Hispanic-American. The very fact that there are such celebrities and activists whose source of income is group advocacy is troubling, and she flagged an unethical quote that “inspires her” that is more unsettling still. She says,

“Brittney Cooper’s “Eloquent Rage: A Black Feminist Discovers Her Superpower.” It’s razor sharp and hilarious. There is so much about her analysis that I relate to and grapple with on a daily basis as a Latina feminist, particularly this point she makes: “When I talk about owning eloquent rage as your superpower, it comes with the clear caveat that Everyone is not worth your time or your rage. Black feminism taught me that. My job as a black feminist is to love black women and girls. Period.” I say hear, hear!”

“Hear, hear” WHAT? Cooper is essentially saying that only her tribes—women, race, nation of origin—are worth her time or care. This is an unethical point of view that feeds division, distrust and hate. Caring is a core ethical value that includes sympathy, empathy and beneficence. “I only care about people like me” is a selfish, ugly sentiment, and Ferrera is extolling it.

Until people like Ferrera and Cooper stop proclaiming sentiments that would be properly regarded as racist or sexist with a change of color or gender, the nation’s society will continue to be roiled by division.

2. From the “What were they thinking?” files: Now this sounds like a Saturday Night Live skit: Somebody had the brilliant idea of hiring Alex Trebek, the “Jeopardy!” host (after Art Fleming), to moderate the televised debate between Pennsylvania Gov. Tom Wolf (D) and his Republican challenger, Scott Wagner. Trebek is a smart guy and quick on his feet, but the problem is one of appearances rather than competence. Reducing a political debate to the status of a game show is the kind of foolish dumbing down and public misinformation that leads to distortions like a Senate confirmation hearing being called a “job interview.” The theory was that more people would watch the debate with a slick MC involved. Heck, why not go all the way? Use the cast of “Modern Family” or zombies from “The Walking Dead” to ask questions. Better yet, how about Kanye West?

To make things worse, Trebek seemed to think the debate was now about him, which isn’t too much of a leap, since the organizers didn’t hire him to do a Martha Raddatz impression presumably. After joking that the only thing with a lower approval rating than the Pennsylvania legislature was the Catholic Church, he decided to inform the audience about his own views, saying,  “I was born and raised in the Catholic Church and I’m just as ticked off as everybody else is over what has happened with the church.When I was a young teenager I attended a Catholic boarding school run by the Oblates of Mary Immaculate. Two-hundred and fifty students, other boys and I, spent three years sharing the same accommodations 24/7 with 44 priests and not once in those three years was there any sexual misbehavior. Now boys are pretty sharp, we talk, we would have known. So I believe that there are Catholic priests out there who are able to minister to their congregations without preying — that’s P-R-E-Y — on the young people.”

Who cares what you think, Alex? The debate is supposed to inform us about the candidates. Continue reading →

Your Mid-Day Brett Kavanaugh Nomination Ethics Train Wreck Update

/ Jack Marshall / 39 Comments

It’s kind of like following O.J. slow-mo escape, but more interminable, and lot more ominous...

I. No, Matt Damon is not a hypocrite because he mocked Brett Kavanaugh on SNL.

Why is this so hard to grasp for those not in show-biz? Actors act. They don’t have to believe in or live by what their roles stand for? Damon said earlier last December, speaking of the situation where he was falsely accused of harassment or sexual abuse…

“If you make the same claim to me today. it would be scorched-earth. I don’t care if it would cost me $10 million in court for 10 years, you are not taking my name from me, you are not taking my name and reputation from me, I’ve worked too hard for it, I’ve earned it, you can’t just blow me up like that.”

Now conservative pundits are writing that Damon is a sell-out and a hypocrite for helping a TV satire show attack Kavanaugh for standing up for his name and reputation. Morons. Damon didn’t write that script, and very few actors, especially fading, aging leading men like Damon, can afford to demand that they personally agree with the vehicles they appear in or the characters they play. Even actors who have the money and clout to do that usually kill their careers. [See: Foster, Jody; Clooney, George; et al.] Continue reading →

Morning Ethics Warm-Up, 10/1/2018: Of Boies, Drunks And Maryland…

/ Jack Marshall / 7 Comments

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. Continue reading →