Category Archives: Law & Law Enforcement

Closing The Book On An Ethics Villain

Lance Armstrong is the worst sports ethics villain of all time, I believe—cycling’s Barry Bonds, but in a sport far more vulnerable to betrayal than baseball. Like Bonds, he cheated, many times and over a long period, taking victories away from more deserving athletes while enriching himself. While Bonds never had his public “I did not have sex with that woman” moment of brazen denial, Armstrong had many, all the while insulting and condemning his accusers. Bonds also never was a revered hero of children—Barry appeared to care about no one but Barry—while Armstrong deliberately made them part of his scam. When Armstrong’s elaborate schemes, lies and cover-ups were revealed, he made lifetime cynics of hundreds of thousands of young fans, and maybe more.

Armstrong, like Bonds, left his sport in disgrace but took with him great wealth, and, like Bonds, has never shown a smidgen of sincere regret or contrition—sociopaths are like that. Yesterday it was announced that Armstrong will pay $5 million to the federal government in settlement of a fraud lawsuit. The U.S. said that he owed $100 million to taxpayers for accepting sponsorship funds for his cycling team from the U.S. Postal Service while he was doping. Armstrong also agreed to pay $1.65 million to cover the legal costs of Floyd Landis, a former Armstrong teammate and the whistleblower in the case.

Eh, whatever. Lance can afford it. Despite various fines and settlements, he managed to escape his exposure with most of his ill-gotten gains safely salted away, spent or invested. Continue reading

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From The Ethics Alarms “Irony” Files: “The Association For Honest Attorneys” Has No Attorney Members…

The ABA Journal reports that the U.S. Tax Court ruled against The Association for Honest Attorneys (Known as A.H.A! ) this month, denying  tax-exempt status for the organization. Why? Well,  it hasn’t had any lawyer members since its founding in 2003, and no lawyer could be found to represent the group in its tax dispute. The group’s founder, Joan Farr, spent association money at grocery stores, department stores and home-improvement stores.

 

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Comment Of The Day: Morning Ethics Warm-Up, 4/7/2018: #2: “Williamson No Longer Of The Atlantic’”

This is an epic Comment of the Day using an unusual approach. Michael West explores aspects of public discourse that is at the core of ethical misunderstanding and ethics malpractice by focusing on a multi-party twitter exchange regarding an issue discussed on Ethics Alarms, the firing of former National Review writer Kevin Williamson after he doubled-down on an extreme position regarding abortion: he believes it is murder, and therefore believes that capital punishment is a fair punishment for what should be considered a crime. Moreover, he said that because of the violent and depraved nature of the crime, a violent execution, like hanging, would be appropriate for the women who allowed their fetuses to be aborted.

Michael also used his comment to highlight a concept we have not used on Ethics Alarms, at least by name, “the Overton Window.” That is defined as “The spectrum of ideas on public policy and social issues considered acceptable by the general public at a given time.” Of course, what the “window” is can be tricky to determine. Donald Trump broke the alleged window repeatedly. My preferred approach to this “window” is to challenge it, and to try to expand its boundaries, consequences be damned. I equate the Overton Window with de facto censorship and thought-control.

I am especially glad that this comment again raises the Williamson firing and the related ethics issues. These are rich topics, and yet the matter fled the blogs and commentary sites quickly, paved over by successive outrages of the day.

Here is Michael West’s Comment of the Day on #2 in the post, Morning Ethics Warm-Up, 4/7/2018: “Ruggles Of Red Gap” And “Williamson No Longer Of The Atlantic’.”  This is a bit challenging to read, but worth the effort. For clarity, Michael’s commentary is in bold italics.

I think this is an informative tweet dialogue on a handful of levels. For one, it reveals some informal fallacies that inevitably ruin any discourse and are especially ruinous tendencies in any summarized forum (which twitter represents the extreme end of the spectrum). It also reveals what I think is the fundamental problem with the discussion [on Ethics Alarms.]. I think we’re operating on two different meanings of “mainstream”. Simultaneously this reveals two different attitudes regarding the Overton Window.

As for the term “mainstream”, Almaqah below seems to mean it as “anything someone is willing to hear another person discuss.” I presume [commenter Chris’s]  friendliness toward Almaqah’s opinions implies [he] generally believe the same. When I use it, and I think when most others use the term, we use it as more of a quantitative assessment, where “mainstream” means “anything that a sufficient percentage of people believe”, to which it might be effective to add “that it holds enough weight to begin to sway policy discussions” …but that’s not essential.

I think Almaqah’s subsequent side-bars reveal a somewhat concerning attitude towards diversity of opinion as well as tolerance of that diversity. He seems to think that acceptable discourse should be extremely narrow and that anything outside of that window should not be tolerated one bit.

Cast of Characters (mostly from their twitter profiles):

@_Almaqah

Gabriel Malor (@gabrielmalor) – “Oklahoman. Attorney. Contributor at @FDRLST, @dcexaminer, and other places. Keep reminding me that I’m supposed to be rising above.”

@Elwampito – “petty bourgeois”

Mollie Hemingway (@MZHemingway) – “Senior Editor, @FDRLST”

Katherine Mangu-Ward – Editor in Chief of Reason Magazine

FyodorPossibly a libertarian & probably anti-Trump… (judging from a quick scan of tweets)

@MsBaileyGurl – “fundamental human rights and fast wifi. So easy to please.”

Mark Hemingway (@Herminator) – “Senior Writer @WeeklyStandard. Husband of @MZHEmingway”

Jacob T. Levy (@jtlevy) – “Tomlinson Prof of Political Theory, McGill. RPF http://amzn.to/1osWYDC Niskanen http://tinyurl.com/gpu3rzw Opinions here are mine not McGill’s.”

Alexandra DeSanctis (@xan_desanctis) – “Buckley Fellow at National Review. Co-host of “Ordered Liberty” with @DavidAFrench. @NotreDame alum. ”

Bre Payton – “the culture and millennial politics reporter for The Federalist”

@JackFromAtlantapossibly a conservative & possibly an Eastern Orthodox Christian (judging from a quick scan of tweets)

@UrbanAchievrprobably a leftist, most probably anti-Trump (judging from a quick scan of tweets)

Oliver Darcy (@oliverdarcy) – “senior media reporter, @CNN. writing at the intersection of media & politics.”

Kirsten Powers – “USA Today Columnist / CNN Political Analyst / Cohost of @thefaithangle podcast”

Here’s the opening salvo, as Almaqah responds to Gabriel Malor (which “El Wampito” rapidly jumps into).

@gabrielmalor – “The man just lost his job because of his political beliefs. The people celebrating it, particularly the ones who work in media, are trash human beings, not to mention completely unself-aware morons.”

@_Almaqah (two combined tweets) – “Stop convincing me “executing women who have abortions” is a conservative belief, I’m trying to be generous. Also he’ll be fine, NR will take him back. Most prolifers say they don’t want to punish women who have abortions, so it’s odd to see some of them conflate KW calling for execution with normal conservative beliefs. Which is it?”

@Elwampito – “it’s the latter”

@_Almaqah – “I’d like to give them the benefit of the doubt!”

@Elwampito – “i mean, if you believe abortion is murder and support the death penalty, it would seem to fit unless you think women lack moral agency or something”

@_Almaqah – “This is true, most of them get around having to reach this conclusion by just saying women are victims of abortion too. KW was willing to say he takes their agency seriously and thinks they should be held culpable”

Here, Almaqah subtly shifts the accusation. The topic is the specific stance that women who kill their unborn children should be executed. Almaqah expands this to “Punishing women who seek abortion.”.There’s a significant difference here where his latter use of “punish” compels the person he’s arguing with to either agree or disagree to a general assertion which may or may not reveal an actual attitude towards the specific assertion. This isn’t rhetorically responsible dialogue.

@MZHemingway – “In only article pubbed @ Atlantic before being fired for being pro-life, NeverTrumper Kevin Williamson wrote enemy was @VDHanson.Interesting”

@_Almaqah – “Another person who equates ‘prolife’ with ‘wanting women who have abortions to be executed’. I’ll take your word for it!”

Molly Hemingway, is playing the typical journalist role of saying something triggering to her base, “Fired for being pro-life”, when she knows he was fired for having a stance about how to enforce those who have abortions. She isn’t being responsible with her tweet, and Almaqah capitalizes on this. But in reality, we know he wasn’t fired for being pro-life, but standing up *for* him and his right to hold opinions, is not an endorsement of those opinions NOR is it a claim that the opinions are “mainstream” (unless you insist on the Narrow Overton window definition of mainstream).

Here, Almaqah quotes the same Reason article, by Katherine Mangu-Ward, which [Chris] referred to and is linked in Jack’s piece.

@_Almaqah (two combined tweets) – “Kevin’s defenders would’ve been better off just saying ‘yes, punishing abortion w/execution is completely reasonable conservative belief, what of it?” instead of “he was just trolling, of course he doesn’t believe that horrible thing!” I mean, once you concede it’s a terrible thing to believe it, kind of hard to get mad when there are consequences for actually believing in it”

@Fyodor32768 (three combined tweets, bold is what Almaqah responds to) – “I think that conservatives probably believe that say the median viewpoint should be outright illegalization and that Williamson’s execution position is on the right side of the spectrum but not crazy. So by saying that his hanging position puts you outside the spectrum you are saying something about what the “baseline” opinion is that they dislike. Sort of like how a lot of mildly racist conservatives didn’t fully agree with Trump’s more forceful racism but didn’t feel it should be condemned as outside the pale because they though of their own more mild racism as the midpoint for views on minorities.”

@_Almaqah – “Yes, to them punishing abortion by execution is just a policy difference to be debated politely among friends. It’s not like Williamson called for something truly offensive like an 80% estate tax”

Almaqah, relying on the narrow, intolerant view of the Overton Window, again shifts the term from the specific “execution” to the broader term “punishment.” Fyodor does a great summary rebutting him here. Almaqah’s reponse is to belittle the notion of tolerating an individual, who while generally in agreement with most actual mainstream opinions, holds one or two more extreme ideas. This is problematic. If Almaqah’s attitude is to reign, we cannot tolerate individuals having anything other than exactly the same lock step views on every opinion we grant “mainstream” status…we must, upon discovery that one of our “orthodox” fellows, when holding even a single “out of whack” viewpoint, must be shut up and sent out of the camp.

@Herminator – “Kevin Williamson was Never Trump *and* one of the most talented writers of his generation. They still wouldn’t let him work for a a venerable liberal institution. Let that be a lesson.”

@MsBaileyGurl – “The lesson is…don’t advocate for the murder of women. Seems pretty easy for the ‘law and order’ party to get behind.”

@Herminator – “Adovocating for the murder of women who murder others is the issue at hand. This is misdirection.”

@_Almaqah – “”he doesn’t want to murder all women, he just wants to murder women who have abortions” might’ve sounded better in your head” Continue reading

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Morning Ethics Warm-Up, 4/19/18: “Boy, Am I Sick Of This Stuff” Edition

Morning….

1. Once again, the Orwell Catch-22. Ethics Alarms has several times flagged the unconscionable use of the Orwellian ” If you have nothing to hide, you have nothing to fear’ in the news media and among the resistance as they try to demonize the President of the United States for insisting on basic principles of due process and legal procedure. (Here, for example.) How did the Left come to such a state where they embraced this unethical concept, which is totalitarian to the core, and the antithesis of liberal thought? It is pure corruption, and forces fair Americans to side with the President and his defenders whether they want to or not.

To get a sense of how insidious this trend is, read Jonathan Chait’s recent effort for New York Magazine. Chait isn’t an idiot, but he’s so biased that he often sounds like one, as in his ridiculously blind 2016 essay declaring that “The 2016 Election Is a Disaster Without a Moral.”

This time, he makes the argument that President Trump must be guilty of horrible crimes because various Trump allies have denied that Michael Cohen will “flip” on his client, meaning that he would testify against him. Lawyers can’t testify against their clients, even if they have knowledge of criminal activity. They can testify to client efforts to involve them in criminal activity prospectively, because requests for advice regarding illegal acts are not privileged. Chait, however, doesn’t observe this distinction: he is simply towing the ugly If you have nothing to hide, you have nothing to fear’ position that has been adopted, to their shame, by many left-leaning pundits and supposedly legitimate news organizations like the New York Times. Look at this section in Chait piece, for example: Continue reading

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Morning Ethics Warm-Up, 4/18/2018: The Bad, The Beautiful, And The Stupid

Good morning, everyone…

1. Tales of the King’s Pass. Fox News put out a statement saying that Sean Hannity had its “full support.” We can assume that means no punishment, no sanctions, not even any public regrets, despite the fact, and it is a fact, that the right-wing talk-show host-turned-Trump propagandist went on the air and defended Trump’s fixer, Michael Cohen, without mentioning the fact that Hannity was Cohen’s client. Thus Fox is announcing, in effect, that undisclosed conflicts of interest are just fine and dandy if your ratings are good enough. This also means that Fox News is admitting that it really doesn’t care about candor, honesty, and objectivity, since it will ignore blatant violations of all three if the profit is sufficient.

In fairness to Fox, Hannity’s blatant biases toward all things Trump are no more egregious than the open Obama bias displayed across the mainstream media’s full spectrum of journalists and pundits; it just stands out more because he has less company. However, this is a specific conflict of interest, with Hannity having undisclosed connections to a newsmaker that could reasonably affect his commentary. The closest parallel would be ABC’s George Stephanopoulos reporting on the Clinton Foundation’s dubious activities without telling viewers that he was a $75,000 donor. ABC didn’t discipline him, either, but at least he made a public apology on the air.

To make the King’s Pass case even stronger, after Politico reported this week that dinnertime news anchor Bret Baier played nine holes of golf with President Trump over the weekend, Fox News acknowledged that Baier was admonished by the president of the network.  I don’t agree with the reprimand at all. The opportunity to spend that kind of time with a President is invaluable, a rare opportunity to acquire insight and access over an extended period of time. The idea, I assume, is that it creates the illusion of chumminess. It’s a dumb illusion. If I were a journalist,  I would play golf with anyone if it allowed me to learn something. If I were president of a network, I’d reprimand a reporter for turning down such an opportunity.

2. The Virtue-Signaling Hall Of Fame. Starbucks is reacting to the PR nightmare arising out of the arrest of two black men for refusing to order anything while waiting for a companion in a Philadelphia Starbucks by a grand gesture: it will close all U.S. stores and corporate offices on the afternoon of May 29 for “employee racial bias training.” I suppose this is good crisis management, though cynical and non-substantive. It also permanently tars as a racist the Starbucks ex-manager, who says she was following a locale-specific company policy in an area that had experienced problems with loitering. Continue reading

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Ethics Hero: Justice Neil Gorsuch

The Supreme Court today struck down a law that allowed the government to deport legal immigrants who commit certain kinds of crimes, ruling that the law was unconstitutionally vague. The vote was 5 to 4, with Justice Neil Gorsuch voting with the court’s left-leaning block. The case was Sessions v. Dimaya, first argued in January 2017 before the  eight-member court left vulnerable to deadlocks by the death of Justice Antonin Scalia. And a deadlock it was,  4 to 4. The case was reargued last October after Justice Gorsuch’s confirmation again gave the Court a full contingent of nine.

The dispute concerned James Dimaya, a native of the Philippines who became a lawful permanent resident in 1992, when he was 13. In 2007 and 2009, he was convicted of residential burglary. The government sought to deport him under a law that made “aggravated felonies,” which the immigration law defined to include any offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” justification for deportation.

In concurring with the majority opinion, authored by Justice Elena Kagan, Justice Gorsuch wrote that the law violated due process requirements by being unconstitutionally vague. “Vague laws,” he wrote, “invite arbitrary power.”

The interest here at Ethics Alarms isn’t whether the decision was right or wrong. It is that Gorsuch decided the case on the law and his view of it, not partisan loyalties, not knee-jerk cant, and not as a cog in a ideological block. In other words, he did what  judges, and especially Supreme Court Justices, are supposed to do, but which the news media, politicians, activists and those who neither understand nor respect the law always assume they don’t do: analyze each case according to the law and the facts, and decide without being influenced by political agendas.

Judge Gorsuch’s vote demonstrates his integrity, and speaks for the integrity of the entire Court and the judicial system. There were countless articles, when Gorsuch was nominated by President Trump, that represented him as an automatic reflex vote for whatever future results conservatives lusted for. This was an insult to Gorsuch, judges, the Court, and the United States.

You can read Gorsuch’s opinion here. Continue reading

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Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed. Continue reading

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