Gender and Sex

Surprisingly, Many California Lawyers Want To Have The Option Of Having Sex With Their Clients

/ Jack Marshall / 10 Comments
It's all your fault, Arnie...

It’s all your fault, Arnie…

For most of the last century, sensible and rational lawyers accepted that exploiting the attorney-client relationship to have sex with their clients was unprofessional and unethical, without needing a formal rule to tell them the obvious. Then along came Steven Bochco’s popular TV drama “L.A. Law,” the over-heated saga of a high-rolling Los Angeles law firm and its libidinous lawyers. Most libidinous of all was domestic law specialist Arnie Becker, played by the then-blonde and dashing Corbin Bernsen. Arnie habitually slept with his clients when they were wealthy, sculptured, beautiful trophy wives trying to shed their husbands. This was not the image that the family law bar wanted to see broadcast to America, so lobbying efforts were undertaken in many state bars to formally declare Arnie’s nocturnal client conferences unethical, as they undoubtedly were.

California, being partially at fault for the uptick in the public’s false belief that lawyers use their practice as a virtual dating bar, was among the first states to pass an “Arnie Becker Rule,” though it had company, like Oregon, which amusingly anticipated Bill Clinton by including a strangely specific definition of what sexual intercourse was, and New York, which narrowly limited its prohibition to Arnie Becker and domestic relations lawyers like him. Other jurisdictions demurred, as well as the American Bar Association, which is supposed to seek consistency in the legal ethics rules. California’s new rule was one of the more wishy-washy ones, with Rule 3-120 stating that Continue reading →

And The Winner Of The First Ethics Alarms Readers Challenge Is….

/ Jack Marshall / 5 Comments

First time commenter Aleksei!

atlantic-hillaryThe lateness of this announcement is embarrassing, and I apologize to all. The Challenge was to compose the best analysis, positive or negative, of a mind-melting pro-Hillary puff-piece in the Atlantic called—then, for the title was later changed because it was ridiculous)—“Why is Hillary Clinton So Widely Loved?”

A sample:

A conservative writer labeled her a congenital liar when she was first lady, and the label stuck because it was repeated over and over—and it was a convenient label to harness misogyny. If she was a liar, then the hostility she engendered could not possibly be because she was a first lady who refused to be still and silent. “Liar’ has re-emerged during this election even though Politifact, a respected source of information about politicians, has certified that she is more honest than most politicians—and certainly more honest than her opponent.

Because she is already considered guilty in a vague and hazy way, there is a longing for her to be demonstrably guilty of something. Other words have been repeated over and over, with no context, until they have begun to breathe and thrum with life. Especially “emails.” The press coverage of “emails” has become an unclear morass where “emails” must mean something terrible, if only because of how often it is invoked.

The challenge was issued on November 3rd, and my intention was to publish the winner on the 6th, two days before the election. There were not many entries, in part because Aleksei’s analysis was so quickly posted and thorough. In the frantic run-up to the election, including my own resolution of the many conflicts the choice represented for me professionally and personally, I just forgot to publish Aleksei’s work, and then moved on to other issues in the election.

I apologize to Aleksei and Ethics Alarms readers.

It  certainly is weird to read the article and the analysis now. It was written only two weeks ago, but it feels like a lifetime ago. The election was the ultimate rebuttal of the essay’s argument—if Hillary really was “so widely loved,” she’d be President today—and the kind of mindless worship and relentless denial the piece displays was a large factor in her defeat. It is bracing to read this in light of the efforts by the Clinton team, Democrats, and various pundits to absolve Clinton and the party from all accountability for the most stunning upset in presidential election history. Hillary blames the loss, predictably, on James Comey, which is like blaming the loss of your license for speeding on traffic cops. On MSNBC on this week, former Clinton campaign communications director Jess McIntosh put the blame on  white women with “internalized misogyny,” who couldn’t bring themselves to vote to elect the first woman president. Then there was the narrative that Trump’s win was based on massive support for “Misogyny, Racism and Xenophobia”—good names for triplets, now that I think about it. Slate’s star race-baiter, Jamelle Bouie, wrote that there is “no such thing as a good Trump voter.” To paraphrase the hysterical woman who gives “The Birds” its funniest moment, Bouie thinks everyone who didn’t vote for this beloved woman is “Evil! Evil!”

I don’t necessarily agree with all the analysis of the winning submission, but he was willing to slog through the Atlantic’s disingenuous mess, and Ethics Alarms is grateful.

Here then, late, is the winner of the first Ethics Alarms Readers Challenge:

Continue reading →

Ethics And The Broadway Star’s “Accidental” Pregnancy

/ Jack Marshall / 14 Comments

In July, just four months after the show opened to rave reviews, producers closed the hit Broadway musical, “Shuffle Along, Or The Making of the Musical Sensation of 1921 and All That Followed.” “Shuffle Along,” with 10 Tony nominations this year, had the makings of a long-running bonanza, but producers decided that when its acclaimed star, multiple past Tony Award winner (six!) Audra McDonald, had to leave the cast due to a surprising pregnancy (the actress was 45), it was too risky to continue. As soon as a replacement was named, ticket sales plummeted.

The show, which was capitalized for up to $12 million, had purchased a $14 million insurance policy from Lloyd’s of London to cover any damages arising if McDonald “was unable to perform because of an accident or illness.” Now producers are asking Lloyd’s to pay up, covering losses created by the pre-mature closing of the musical and by the  effects on the production occasioned by other health issues related to McDonald’s pregnancy while she was still performing.  “Since the beginning of previews of the Show, Ms. McDonald was unable to appear in numerous performances of the Show due to circumstances related to illness, a knee injury, and her pregnancy,” a lawsuit says. Her role was a strenuous one, requiring, among other things, a lot of tap-dancing.

Why the lawsuit, you ask? Lloyd’s says that the policy’s terms haven’t been met, arguing that the actress’s pregnancy and the associated medical conditions were neither due to an ‘accident’ nor an ‘illness’ under the policies.” The show’s position, as articulated by a lawyer representing the show, is that”‘Shuffle Along’ bought an insurance policy to cover it in the event that Ms. McDonald was unable to perform, and she was unable to perform.”

I love this story! It has everything—cold-eyed insurance executives, a perhaps manipulative diva, the sanctity of pregnancy, buck-passing, Hail Marys, feminist taboos, and Broadway!
Continue reading →

Four Unethical Dispatches From The 2016 Post Election Ethics Train Wreck: #2

/ Jack Marshall / 21 Comments

...and that mission is "Make sure children are raised to be afraid of Republicans."

…and that mission is “Make sure children are raised to be afraid of Republicans.”

[This is the second of four posts exposing recent screeds and missives that demonstrate  various degrees and kinds of ethics rot spreading from the 2016 Post Election Ethics Train Wreck. The first is here.]

II. The Evanston/North Shore YWCA

Karen Singer, the CEO of the Evanston/North Shore (Chicago) YWCA sent a post-election letter that read in part,

Dear Friends,

We walk through our doors at the YWCA Evanston/North Shore each morning determined to make our communities more just and equitable, determined to work for women’s empowerment and equality, for a woman’s right to choose what happens to her own body, for freedom from violence, and for people of all races, ethnicities, sexual orientations, cultures and religions to feel that they are embraced, have opportunity, are respected and that their lives are valued.

Yesterday morning, we walked through our doors and felt that instead of a glass ceiling shattering, the floor had dropped out from under us. We sat and grieved together for what seemed to be a national affirmation of everything that is antithetical to what we aspire to and hold as our most cherished values.

We are all searching for an explanation; a way to get our heads around something we are struggling to understand. How can the climate and rhetoric of hate, racism, violence against women, and fear have been given its ultimate validation?

Mia, a staff member who answers our domestic violence crisis line, wrote something yesterday that especially resonated with us:

“(My son) stayed up with me until 12:30 am. He went to bed knowing it was probably over, but saying that maybe it wasn’t. There was a tiny bit of hope in his heart. The Cubs taught him about late night miracles last week. Still, I could hear the despair in his voice when he said, ‘I don’t want to go to school tomorrow, Mom.’”

“In the morning I came downstairs immediately after hearing him get up. I hugged him long and hard, with tears in my eyes, tears that are still in my eyes as I type this. I said, ‘I love you.’ And then I said, ‘You have to go to school today. You have to go to school for all those girls and Latinos and blacks and gays and Muslims at your school who were just told by America that they are not valued. You have to show up for them.’” Continue reading →

Comment of the Day: “Ethics Quiz: The Harvard Soccer Team’s “Locker Room Talk””

/ Jack Marshall / 10 Comments

bridge cards

This Comment of the Day is a week late, for which I apologize. The topic is still as vivid as ever however, especially since the episode in question, Harvard’s  premature ending of its men’s soccer team’s season because of real, bona fide, sexist locker room talk misogyny that escaped into the world at large, got filed in the “This will help elect Donald Trump” category. 

In the discussion threads, the themes expanded into race and “white privilege.” Chris Bentley, an African-American commenter here, reiterated a theme of some other posts here, that the players were punished under a double standard that allows women engage in direct sexually harassing conduct without disapproval. To this, another commenter protested….

Oh please. This is just right-wing PC nonsense, trying to deny that there is any difference between men and women. Earth to Bentley: there is a difference. Ditto between black and white. And a lot of it has to do with power. Hint: if you wanted power, and had the choice to be born as a) black or b) white, which would you choose? How about a) male or b) female? Get real – everyone knows there are power imbalances except in your fevered mind where “if the behavior were reversed” it would be unacceptable. The behavior ISN’T reversed, and can’t be, because the world is not wired that way.

Here was Chris Bentley’s brave and provocative response, the Comment of the Day, under the post, “Ethics Quiz: The Harvard Soccer Team’s “Locker Room Talk.” I’ll be back at the end for some additional comments….and a poem.

You are, very directly, telling me that regardless of what I think, or the experiences Ive had in my life, when it comes to having “power”, I will always fall short. And I’m the one spouting nonsense. Great pep talk, you should coach little leaguers.

If I had a choice to be born white or black, I would choose to still be born black. Not because it runs contrarian to what you believe, but because, as Ive told you on numerous occasions, I have never (that I am aware of) been the victim of racial discrimination, and, just so happen to be proud of being black, so there’s no reason for me to wish to be of a different race. Now you have previously pointed out that my life story is anecdotal, but this question is directly about what I would choose, and seeing the changing winds, about how its now en vogue to demean whites with impunity, especially white males, I’ll gladly continue being black, thank you very much.

Continue reading →

More Post-Election Ethics: “Bias Makes You Stupid” Edition

/ Jack Marshall / 33 Comments
Dewey Wins!

Dewey Wins!

1. Ugliest moment of election night: Trump’s assembled chanting “Lock her up!” as the electoral victory approached.

2. Anti-Trump bias made the entire journalism profession and punditry class incompetent, forming an almost impenetrable echo chamber that assured its smug occupants and Democrats that Hillary Clinton literally couldn’t lose. “Bias makes you stupid” is a frequent refrain here, and I cannot think of a more powerful example.

In a terrific if rueful article in Slate, Jim Newell writes of how the whole Democratic establishment convinced itself that Hillary couldn’t lose:

I think of the lawmakers, the consultants, the operatives, and—yes—the center-left media, and how everything said over the past few years leading up to this night was bullshit…Think of how wrong the entire national media conversation was—and yes, I contributed my fair share—about how the Republicans were being torn apart as a party. I prewrote a piece Tuesday afternoon, to be published in the event of the expected Clinton win, pushing back against both myself and other members of the media, arguing that Democrats and Republicans were both in existential trouble and that, in the short-term context of a decaying political system, Republicans might even have the edge…This was wrong. Republicans don’t have a slight edge over Democrats in a decaying political system. Republicans are ascendant.

The whole point of experts and analysts is that they use facts and objectivity to cut through rationalizations and bias. If they can’t or won’t do that, they are useless. They are frauds. Here’s the Washington Post’s media columnist, Margaret Sullivan, who proves elsewhere in the essay, even as she writes about bias, that she is still a partisan to her core:

To put it bluntly, the media missed the story. In the end, a huge number of American voters wanted something different. And although these voters shouted and screamed it, most journalists just weren’t listening. They didn’t get it.They didn’t get that the huge, enthusiastic crowds at Donald Trump’s rallies would really translate into that many votes. …It would be too horrible. So, therefore, according to some kind of magical thinking, it couldn’t happen.

Journalists — college-educated, urban and, for the most part, liberal — are more likely than ever before to live and work in New York City and Washington, D.C., or on the West Coast. And although we touched down in the big red states for a few days, or interviewed some coal miners or unemployed autoworkers in the Rust Belt, we didn’t take them seriously. Or not seriously enough….We just kept checking our favorite prognosticating sites and feeling reassured, even though everyone knows that poll results are not votes.

The news media anti-Trump bias might have even lost Hillary the election, not just by outraging the public–it was so, so blatant–but by deceiving the Democrats. Clinton didn’t bother to campaign in Wisconsin, so convinced was she that voters there would blindly follow the party, as usual. The state was one of the big victories for Trump.

Yes, bias has made U.S. journalism incompetent, stupid, self-satisfied and useless. It will take more than one fiasco to reform it—if it can be reformed. I hope it can because democracy doesn’t function well with an untrustworthy newsmedia, Continue reading →

Donald Trump: A Pre-Election Ethics Alarms Character and Trustworthiness Review: 2005-2016 [UPDATED]

/ Jack Marshall / 33 Comments

trump-mocks-disabled-reporter-cnn-usa-today

Donald Trump has no character or trustworthiness. Next question?

Oh, all right, in the interests of equity and fairness, I’ll submit The Donald to the same process as I did with Hillary Clinton, though in his case the verdict is res ipsa loquitur. Trump’s lack of ethics and his unfitness to fill the shoes of Washington, Lincoln, Teddy, FDR, or Millard Fillmore is, or should be, self-evident. Those for whom it isn’t self-evident are either ignorant, devoid of values themselves, or intentionally seeking to harm the United States.

I’ve been writing about the awfulness that is Donald Trump since 2005. He was noted for his dishonesty on my Ethics Scoreboard when I called foul on his marketing “various ‘get rich’ products, including tapes, seminars, and “Trump U,” an on-line delivery system for more of the same.” I wrote in part…

There are thousands upon thousands of Americans who started with meager resources and made themselves rich through talent, hard work, creativity, inventiveness, and some luck. …Not Trump. The success of his pitch to the desperate wannabes and clueless is based on their erroneous assumption, nurtured by Trump but not explicitly supported by him, that he can teach them to do what they think he did…make himself rich through hard work and a business savvy. But what Trump is best qualified to teach is how to make yourself richer when you inherit an established business and have millions of dollars plunked into your waiting hands after your Dad has sent you to Wharton.

The fact that Trump doesn’t lie outright about his background but simply allows his marks to jump to the wrong conclusions puts his “get rich like me” marketing efforts in the category of deceit…but deceit is still dishonesty. Trump undoubtedly has useful wisdom to impart about building a successful career; it’s not as easy to stay rich as some people think. Ask most state lottery winners. Still, the most vivid lesson of Donald Trump’s successful campaign to sell himself as a self-made billionaire is the lesson that 19th Century con-man Joe Bessimer pronounced more than a century ago: There’s a sucker born every minute.

So we knew, or should have known, that this was a con artist at least back eleven years. In 2006, I posted on Trump’s misogyny and incivility, writing about the first outbreak of his feud with the equally vile Rosie O’Donnell, and their public name-calling…

Rosie set off the exchange by suggesting on ABC’s “The View” that Trump’s recent assumption of the role of moral exemplar by chastising and threatening to fire the reigning Miss USA for being a party-girl was more than a little ridiculous, given his own well-documented penchant for fast women and extra-marital affairs. Sometimes Rosie’s full of beans, and sometimes she gets it right; this time she was right, but spoiled it by concluding her commentary with some unflattering name-calling. Trump, no girly-man he, immediately said he would sue O’Donnell, and then launched into an extended riff on how unattractive and fat she was, including the charming phrase, “pig-face.” Classy as always, Donald…. Yes, anyone who admires either of these two annoying characters already has a problem, but there is no escaping the fact that both are celebrities, and as celebrities they contribute to establishing cultural norms of civility and conduct. This is especially true of Trump, who despite his low-life proclivities is a successful business executive. Resorting to personal attacks on an adversary’s weight or appearance is disrespectful, unfair, cruel and indefensible. Doing so on national media is like firing a shotgun into a crowd. There are a lot of fat or unattractive women out there, Mr. Trump, who are smart, generous, productive, loving, intelligent people… Golden Rule, anyone? How are we to convince our children not to ridicule the personal traits of others, when those they see as rich, famous and successful do the same openly, shamelessly, and even gleefully?

You can imagine my continued amazement that ten years after writing this rather obvious assessment, without Trump having undergone a complete transformation, and indeed with his conduct and public statements becoming worse rather than better, we are on the eve of a day that may live in infamy as the moment democracy  completely failed the United States of America, inflicting on it, and the world,  as unstable and unqualified a leader of a great power as history has ever witnessed. Continue reading →

Ethics Quiz: The Harvard Soccer Team’s “Locker Room Talk”

/ Jack Marshall / 156 Comments

harvard-soccer-team

A week ago I wrote about Donald Trump’s rebound at the polls, and noted, among the factors, this…

B. This just in, from  The Harvard Crimson: Female soccer recruits at Harvard were rated for their attractiveness by their male counterparts – and a sleazy document speculated on their favorite sexual positions. A ‘scouting report’ from 2012, has emerged, containing sexually explicit comments about women, alongside photographs of them. One soccer recruit was described as looking “like the kind of girl who likes to dominate, and likes to be dominated.” The nine-page document assigned each woman a hypothetical sexual position. This document was shared between members of the Harvard 2012 men’s soccer team, and scouting report appears to be a yearly tradition.

Wait…how can this be? When Donald Trump tried to explain away his vulgar conversation with Billy Bush as “locker room talk,” the news media sprinted to prove this was just another lie. Why, athletes in all-male settings never denigrate women or objectify them among team mates! Absolutely not!

Now we learn that Harvard has cancelled the men’s soccer season as punishment for “the widespread practice of the team’s players rating the school’s female players in sexually explicit terms,” reports the New York Times.

The university commenced an  investigation the men’s team after The Harvard Crimson reported last week, in the piece that prompted the Ethics Alarms note, that a player created a nine-page document in 2012 with numeric ratings, photos and lengthy evaluations of the freshman recruits of the Harvard women’s team based on their physical appearance. Apparently the practice had become a tradition.This was the response from the women’s team:

“Locker room talk” is not an excuse because this is not limited to athletic teams. The whole world is the locker room…. We are hopeful that the release of this report will lead to productive conversation and action on Harvard’s campus, within collegiate athletic teams across the country, and into the locker room that is our world….”

Your Ethics Alarms Ethics Quiz of the Day:

Was cancelling the soccer season a fair, responsible, proportionate and ethical response by the Harvard Administration?

Continue reading →

Unethical Quote Of The Week: Barack Obama [UPDATE: He’s Quoting Himself!]

/ Jack Marshall / 99 Comments

Queen of Clubs

“Hillary Clinton is consistently treated differently than just about any other candidate I see out there. There’s a reason we haven’t had a woman president.”

—-President Obama, playing the gender card, since the race card isn’t applicable, in a campaign speech in Columbus, Ohio.

How disgraceful is this? I know it’s a campaign speech and some hyperbole is expected, but there are limits. The statement is dishonest, insulting, divisive and stupid.

Hillary Clinton is treated differently “than just about any other candidate”? Does he mean Trump? That’s the only other candidate running for President, and sure, he’s treated differently: he’s routinely demonized in the news media, from which he received almost nothing but sneering, negative coverage, and called the equivalent of Hitler by members of Obama’s party. Nobody ever blames the bad press he gets on sexism. I guess she is treated differently.

Of course, Hillary is also the only allegedly feminist Presidential candidate who rose to power on the coattails of her more successful and powerful husband, whose rise she assisted by threatening the victims of his sexual advances into fearful silence, whose claim to being a Wall Street reformer is undercut by the huge speaking fees-as-access gifts she received from big financial firms, and who violated both ethical principles and her oath before Congress by shaking down foreign powers for gifts to her family foundation, aka slush fund, while Secretary of State.

She’s one of two candidates repeatedly caught in substantive and trivial lies, but the only one who secretly violated both her own Department’s policies and basic principles of competence by using an unauthorized e-mail system, exposing classified information to acquisition by hostile powers, destroyed potential evidence she knew would be subpoenaed, and lied to the press and the public about it for over a year. As a result of this and more, only 43% of women find Clinton trustworthy.

SEXISTS!

Oh, wait…

Those 43%, by the way, can only find Clinton trustworthy because they are gender-biased or pathetically gullible, because she is so clearly untrustworthy. Sexism is the only reason she has as much support as she does! Continue reading →

Latest Ethics Notes On The Hillary Clinton E-Mail Scandal Ethics Train Wreck, Part 2

/ Jack Marshall / 21 Comments

Continuing from Part 1…

I swear, I didn't pick this photo to make James Carville look crazy or nasty. This is really what he looked like today...

I swear, I didn’t pick this photo to make James Carville look crazy or nasty. This is really what he looked like today…

5. The uproar over Clinton’s private server use and possible security breaches being investigated further with FBI inquiries into the newly uncovered Huma Abedin e-mails seems oddly out of proportion to its substance, at this point. The violent reaction of Democrats and Clinton’s campaign is more suspicious than the information itself. The immediate default to accusations of political and professional misconduct is itself unfair and unethical, and reminds those who are open to being reminded of the Clinton habit of bullying and threatening adversaries, including honorable ones. Just as Trump cannot seem to help himself from lashing out disproportionately at every affront real or imagined, the current over-reaction is itself disturbing. There are too many bullies and thugs in the Clinton camp.

6. Next to Harry Reid, the most publicized accuser of Comey has been Richard Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007. He has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics. As with Reid’s accusation, his is unjustified. Unlike Reid, Painter is intelligent, informed and honorable, and I can only speculate why he has jumped the rails like this. Painter argued in a New York Times op-ed on Sunday that Comey’s intent can be inferred from the absence of a good reason for sending the letter.

Huh? He had a good reason, and as a lawyer and ethics expert, it should be obvious. He didn’t want to be accused of lying to Congress, or to believe that he was lying to Congress. That’s an excellent reason. There are others. “Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate that is made on the eve of an election is . . . very likely to be a violation of the Hatch Act and a misuse of an official position,” Painter claims. Okay, but there were extraordinary circumstances. Public distrust of law enforcement institutions is at a dangerous, all-time high. Every decision is attacked as corrupt or politically motivated by one party or the other. The particularly volatile  situation of a Presidential candidate being investigated by the FBI was greatly exacerbated by the Attorney General allowing herself to be pulled into an inappropriate and improper meeting with the husband of the candidate under investigation shortly before a decision whether to prosecute was due–I’d call that an “extraordinary circumstance.” Comey has been trying to restore the integrity of the Justice Department, which Holder and Lynch, along with President Obama, has allowed to be seriously soiled. He may or may not have made the right choice, but for Painter to file a complaint alleging intentional political bias based on his actions alone is irresponsible. Writes Jonathan Turley, also a law professor of note, and one who does a better job avoid partisan bias than Painter does:

“Comey was between the horns of a dilemma. He could be accused of acts of commission in making the disclosure or omission in withholding the disclosure in an election year. Quite frankly, I found Painter’s justification for his filing remarkably speculative. He admits that he has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.  You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.”

“Or even an ethical charge.” Bingo. And those are harsh words from the usually excessively mild Turley.

I’m not sure what’s going on with Painter, whose opinions I have followed for years. I have followed him, and even argued with him occasionally, on the excellent legal ethics blog, the Legal Ethics Forum, where he is a contributor. If he is a Republican, he’s either a disillusioned one or a strange sub-species. Most of his posts tilt leftward, and they are almost all political in nature, in sharp contrast to everyone else. He obviously has no respect for the Republicans in Congress, and is as vehemently anti-Trump as I am. Unlike me, apparently, he seems to have allowed his rational contempt for Trump lead him to a damaging bias in favor of Hillary Clinton. Ethics complaints should not be used as a political weapon. Continue reading →