Law & Law Enforcement

Communication Ethics: The American Bar Association’s Impossible Formal Ethics Opinion 500

/ Jack Marshall / 1 Comment

difficult-client-yelling-at-lawyer

The duty of communication is both a fiduciary duty and, for lawyers, a professional one. American Bar Association Model Rule 1.4, one rule that every jurisdiction has adopted nearly verbatim, holds that

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The last part is, much of the time, a fictional standard. I have been hammering at this in my recent ethics seminars, much to attendees alarm: clients often, perhaps even most of the time, don’t comprehend what’s going on on many levels.

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Comment Of The Day: “The Facebook Whistleblower Thinks That The U.S. Needs More Censorship”

/ Jack Marshall / 7 Comments

Little introduction is needed for this typically well-reasoned and clearly expressed Comment of the Day on the post, “The Facebook “Whistleblower” Thinks That The U.S. Needs More Censorship” by Extradimensional Cephalopod, except “Here you go…”

***

“So… it seems the Progressives have decided that Facebook needs to do something, and they’re basing everything on that. They’re not looking at all their options.

“The problem as they have described it is, “kids on social media are exposed to information which harms their mental well-being,” but they are only looking at options that involve putting rules and responsibilities on the social media companies.

“What’s wrong with this picture? Well, it ignores the responsibilities of the parent, the child, and the people who put harmful content on the internet in the first place. It ignores the question of how we can fill social media with edifying content instead (because that content is out there–there’s people on Instagram trying to help with body image problems), and the question of how the parent and child can work together to find that content (or just build a life outside of social media) while rejecting harmful content.

“The fundamental liability involved here is stagnation: known motivational limits. People build habits and addictions to things on the internet, because the internet is a source of instant gratification. This phenomenon is a manifestation of decadence: underregulated stagnation.

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The Facebook “Whistleblower” Thinks That The U.S. Needs More Censorship

/ Jack Marshall / 11 Comments

I have to admit, Frances Haugen has played this beautifully. Like many so-called whistleblowers (not all), she picked an ideal moment to betray her previous employer, in this case Facebook, leak proprietary documents, turn herself into an instant media star, guarantee books deals, speaking tours and TV stardom, and be praised to the skies by gullible, grandstanding and cynical politicians.

“I’m here today because I believe Facebook’s products harm children, stoke division and weaken our democracy,” the former Facebook product manager said before a Senate subcommittee on Tuesday. Perfect. I wonder if her media advisor helped her draft it.

Here is all you need to know about Haugan: According to her own website, Haugen was a member of Facebook’s internal  Civic Integrity team in 2020. That means she was part of the team that made the decision to ban the Hunter Biden laptop story by the New York Post from Facebook in October 2020. Facebook, and its evil twin Twitter, refused to allow circulation of the story, accepting without evidence the defensive Democratic talking point that the laptop was a plant was tied to Russian intelligence. Those claims were disinformation, we now know, and the laptop really did belong to Hunter Biden. Facebook’s partisan embargo on the truth might have determined the election. Is blocking a story that might defeat Joe Biden what the whistleblower considers avoiding division and protecting democracy?

It’s a rebuttable presumption. I don’t trust Haugan, her motives, or her message.

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Week-Launching Ethics Warm-Up, 10/4/2021: A Happy Ending To A Pit Bull Saga, A Congressional Leader Makes My Head Explode, And More [Updated]

/ Jack Marshall / 34 Comments

launch

Singer Janis Joplin died of a heroin overdose on October 4, 1970. The anniversary prompts me to make an unkind observation that I was tempted to make after reading all of the tributes and expansive rhetoric praising “The Wire” actor Michael K. Williams after he died of an overdose of fentanyl and heroin on September 6. For at least a hundred years, anyone who takes heroin does so knowing that it is addictive and frequently fatal. My attitude toward Joplin, Williams, John Belushi, Phillip Seymour Hoffman, Billy Holliday, and many other artists who have killed themselves this way involves more anger than sympathy. The world was robbed of their gifts because they were reckless. In the case of black artists, they endanger their admirers by creating a romantic aura for what is, in the final analysis, stupid and irresponsible conduct. How hard can it be not to start using an addictive substance that you know might kill you? The fact that the drug is illegal should be a big clue.

1. And speaking of the joys of recreational drugs...In a new study published in Psychological Medicine, researchers in the University of Birmingham’s Institute for Mental Health and the Institute of Applied Health Research found a strong link between “general practice recorded cannabis use” and mental ill health. Senior author Dr. Clara Humpston said: “Cannabis is often considered to be one of the ‘safer’ drugs and has also shown promise in medical therapies, leading to calls for it be legalized globally. Although we are unable to establish a direct causal relationship, our findings suggest we should continue to exercise caution since the notion of cannabis being a safe drug may well be mistaken.”

Continue to exercise caution? Who’s exercising caution? Popular culture and upper-middle class whites have been issuing pro-pot propaganda for half a century, while mocking government efforts to discourage widespread use and acceptance of another destructive recreational drug. Now nearly every state is on a path to legalize it, especially because they smell tax revenue.

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The O.J. Simpson Ethics Train Wreck Rolled Out Of The Station On This Date In 1995

/ Jack Marshall / 15 Comments

Simpsons verdict

O.J. was guilty: to begin with. There is no doubt whatever about that. Evoking the certitude of the beginning lines of “A Christmas Carol” is appropriate, for just as Marley’s true status as “dead as a door-nail” is crucial to what befalls Scrooge, O.J.’s guilt is essential to understanding how this awful, episode in American history damaged the nation and the culture generally, and race relations particularly. Looking back, it is clear that all that has followed oozed from this catalyst: a sociopathic celebrity athlete who could not accept that his wife was moving on from the abusive relationship he inflicted on her, so he brutally slayed her and a male friend he didn’t know. Then, because he was rich, he bought the best legal defense team any murder has ever had, and they brilliant exploited racial distrust in Los Angeles and the U.S. to win an acquittal, with no more concern for the long-term damage they were doing than they had qualms about allowing a double murderer to escape justice.

At the end of an ugly trial filled with incompetence and ethics violations, Simpson was acquitted of the brutal 1994 double murder of his estranged wife, Nicole Brown Simpson, and her friend, Ronald Goldman. Simpson’s lawyers convinced a jury that Simpson’s guilt had not been proved “beyond a reasonable doubt,” though it had been; the problem was that it had not been proved beyond an emotional doubt, which as the all-star defense team well-knew, can be more important. The scenes of black Americans rejoicing because a black man was getting away with a brutal murder of two whites expressed a level of racial hatred that most white Americans didn’t suspect existed. It also should have been an epic teaching moment about the power of confirmation bias. Blacks really believed, surveys showed, that O.J was innocent. It was an early sighting of the “Facts Don’t Matter” contagion that has fueled the Black Lives Matter, “1619” Project and critical race theory wounds inflicted on U.S. society in recent years.

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This Weekend In Pro-Abortion Ethics

/ Jack Marshall / 11 Comments

SCOTUS protest

Let’s examine this by categories….

Warped Concepts of How the System Works: Yet another Women’s March, like all of them, misleadingly labeled to avoid the ugly transparency that “March to be Able to Kill the Unborn at Will” would broadcast, ended up at the steps of the Supreme Court yesterday. Thousands traveled to Washington, D.C. to demand abortion rights, as if the Supreme Court decides complex issues according to who shouts the loudest, is most passionate, or has the coolest signs. Demonstrators surrounded the court,shouting “My body, my choice” and cheering loudly to the beat of drums.

Morons. These assaults on the Curt have driven me mad for decades, as what they demonstrate is that difficult matters of law, precedent and policy can be decided by slogans and the incoherent bellows from a mob. It’s an insult to the Court, the Constitution, and the system. If you have a valid argument, file an amicus brief. These demonstrations, and it doesn’t matter what their goal is our which side of the ideological spectrum they come from, waste time, energy, passion and taxpayer funds. Is the idea intimidation? Good luck with that. Persuasion? Sure, a bunch of screaming and weeping activists are going to persuade anyone but TV talking heads. Narcissistic grandstanding?

There you go.

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In Florida, “I Eat Ass” And A Qualified Immunity Ethics Conundrum

/ Jack Marshall / 14 Comments

i-eat-ass-mask-black

A policeman’s lot is not a happy one, and qualified immunity, the doctrine that exists to shield officers and other state officials from liability when they commit torts in the course of their duties, is under fire because of its role in blocking accountability for cops who engage in police brutality. But without qualified immunity, policing would become even more perilous than it already is.

Take the “I Eat Ass” controversy.

Please.

In Florida, jerk Dillon Shane Webb had a sticker on his vehicle that boasted “I Eat Ass.” (Some may disagree, but Ethics Alarms regards public display of that legend signature significance, as a non-jerk would never do it. Not even once). Columbia County Sheriff’s Deputy Travis English pulled Webb over in May of 2019 and demanded that he cover up the message. Webb refused, and he was subsequently arrested and jailed for “obscene writing on vehicles” and “resisting an officer without violence,” because he had refused to obscure the sticker. Reason, the libertarian cite that is usually more reasonable, wrote that Officer English “took exception” to “I Eat Ass.” No, the officer was under the impression that the display violated Fla. Stat. § 847.011(2), which prohibits “any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions.”

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Now THIS Is The Appearance Of Impropriety…

/ Jack Marshall / 17 Comments

impropriety

The big legal ethics story of the day is a Wall Street Journal report showing that 131 federal judges, appointed by nearly every President from Lyndon Johnson to Donald Trump, have violated federal law by failing to recuse themselves in cases where either they or family members held a financial interest in one of the parties, meaning that the judge’s decision could have resulted in a direct or indirect benefit. This is, of course, a conflict of interest. Even if the judge was as trustworthy as a saint and would never dream of allowing such a conflict to interfere with his or her judgment, allowing these cases to appear before them violates the judicial ethics canon requiring judges to avoid even the appearance of impropriety.

The Wall Street Journal report found that the judges failed to recuse themselves from 685 court cases since 2010. About two-thirds of all federal district judges had holdings of individual stocks, about one of every five of these heard at least one case involving those stocks without withdrawing. When these judges participated in such cases, about two-thirds of their rulings on motions favored the party that their or their family’s financial interests would benefit from prevailing.

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More Ammunition For My College Reunion Note About Why I Will Not Be Attending Next Year…

/ Jack Marshall / 7 Comments

Harvard diploma

I have to get writing soon, since the deadline is October 1. And it is clear that I have more material than I can possibly include to demonstrate why a Harvard diploma for this graduate is now an embarrassment and not to be celebrated. Another example was forwarded to me today.

A reliable blogger and respected lawyer with excellent ethics credentials tweeted that he had spoken with a man who had applied for a job at Harvard for which he was not only well-qualified, but one of the few individuals who was qualified. He had heard nothing for three months, and finally inquired, whereupon he was told via letter that he had been rejected because he did not have the requisite qualifications. By chance, the blogger knew the individual who had signed the letter, and called him up. Off the record, the individual informed him that not only qualified, but the only applicant qualified for the opening. However, he was a white, heterosexual male, and thus was rejected by the hiring committee for not meeting their demographic requirements.

[Note: the tweets did not mention the institution by name, and only alluded to the school’s address, leaving open the possibility that M.I.T., which is just down the street in Cambridge, could also be the school at issue. However. M.I.T. is not currently being sued for discriminatory practices, nor has it defended the same. My own inquiries have persuaded me that Harvard is the culprit here, but the lawyer-blogger did not break his “off the record” promise, though he came close.]

Weekend Ethics Warm-Up, 9/26/2021: Down The Hole As We Vilify The Good Guys To Advance An Agenda

/ Jack Marshall / 9 Comments

Hole

Well, it worked with the false Trayvon Martin and Mike Brown narratives, so why not try it again? I was about to devote a segment here to the hysterical “Border Patrol whipping poor migrants” tale neing manufactured by the administration and the media, but it warrants a full post. I’ll just note the smoking gun huminahumina response from DHS Secretary Mayorkas last week when Peter Doocy of Fox News—gee, why don’t the reporters from other outlets ask administration officials tough questions?—asked him why President Joe Biden accused Border Patrol agents of “strapping migrants.” Doocy asked, “You said on Saturday — or rather, on the 20th, ‘To ensure control of the horse, long reins are used.’ The person who took these photos of the Border Patrol agents says, ‘I’ve never seen them whip anyone.’ So, why is the President out there today talking about people being ‘strapped?'” Hmmm. Because Biden has always been a shameless hack? Because nobody tells him what’s going on? Because creating sympathy for illegals while villifying law enforcement officials for doing their jobs is central to the Left’s open borders agenda? Mayorkas babbled,”So let me, um, uh, let me correct, um, uh, the statements in your question, if I may…” When Doocy (you know, for someone who only has his job because of outrageous nepotism, he has been performing admirably) countered, “They’re direct quotes,” the Secretary of Homeland Security said, “It was on Friday when I was, uh — actually, it was on Monday, I believe, uh, when I was in Del Rio, uh, on the ground, uh, and I made the statements without having seen the images. I saw the images on the flight back, and I made the statement that I did with respect to what those images suggested.The horses have long reins, and, uh, the image in the photograph that we all saw that horrified the nation, raised serious questions about what it— about what occurred and of — as I stated quite clearly — it conjured up images of what has occurred in the past.”

That’s as close to an admission of deliberate obfuscation for political ends as you’re likely to see. What should matter is what was really happening, not what images were conjured up by confirmation bias and or what photos “suggested.”

1. The Great Stupid comes for “Lonesome Dove.” As a lifetime Western movies aficionado, I have concluded that the TV mini-series of Larry McMurtry’s “Lonesome Dove” is the greatest Western ever made. Watching it again yesterday to cheer me up after I woke up with Churchill’s “Black Dog” on my head, I was nauseated to find that the streaming version now carries a warning about “Culturally insensitive portrayals.” After all, the story about cowboys moving a herd to Montana told from their perspective included some dangerous and violent Indians. Of course, for every mean Native American there were about ten cruel and ruthless whites, but somehow I don’t think the trigger warning was referring to them.

2. Speaking of the “Zimmerman murdered innocent teen Trayvon Martin” lie…New York Times drama critic Salamishah Margaret Tillet , the Henry Rutgers Professor of African American Studies and Creative Writing who is essentially an activist uninterested in fair or objective analysis, meaning that her reviews are propaganda, wrote about the re-opened Broadway play “Pass Over” by writing of the playwright,

“Nwandu originally wrote “Pass Over” in response to the killing of Trayvon Martin, seeking to channel the grief and rage that so many African Americans were grappling with. Its latest iteration, she has said, is speaking to the widespread racial justice protests of the summer of 2020. As a result, “Pass Over” is one of the few works of art that really charts Black Lives Matter as a movement responding to the racial justice needs of its day.”

But if the play, which involves a white cop called “master” threatening and menacing them was a response to Martin’s death, it was a response based on media lies and deliberately divisive warping of facts to vilify whites and police. That rage and grief was manufactured for political ends, and the investigation and the trial exploring Martin’s death had to be deliberately ignored for Tillet to write such a paragraph and for the Times to publish it.

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