Law & Law Enforcement

Ethics Dunce: The Florida Bar. Again.

/ Jack Marshall / 2 Comments

The reluctance of the legal profession to acknowledge that members of the public are as qualified to recognize metaphors, puffery and hyperbole in the marketing of the legal services as they are when they are buying cupcakes or hiring plumbers continues to astound. Many state bar associations still have, and enforce, ethics rules that make the kind of obvious analogies routine in TV, online and print advertising violations because they are deemed “misleading or deceptive.” Florida has long been one of the most notable laggards in applying common sense to lawyer advertising. In contrast, the District of Columbia, with the largest bar in the nation, has largely eliminated such rules. except in conduct constituting outright lies. Just a few days ago, I told a client that the other bars were slowly moving in D.C.’s direction. I did not expect Florida’s bar to again embarrass itself and its lawyers–AND MY DOG—again, after making itself the butt of jokes over a decade ago with virtually the same complaint it made against a lawyer’s ads more than a decade ago. I thought the Florida Bar had learned. I thought eleven years was more than enough time for it to accept the basic concept of advertising…and to learn about dogs.

Guess not.

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Tuesday/Wednesday Ethics Sandwich, 3/9-3/10/21: Movies, Megxit, Major And More

/ Jack Marshall / 25 Comments

Dagwood sandwich

1. Worst “review” of the Year, and other Megxit Ethics Train Wreck developments :

  • I hate to end one day (and start another) with something so nauseating, but a Times “Critic’s Notebook” entry by Salamishah Tillet titled “Taking On Royal Life’s Racism” (online, “Prince Harry Finally Takes On White Privilege: His Own”) is both incompetent and dishonest. This is no review. It is a black studies professor with an agenda using a media stunt by Oprah Winfrey and the breakaway Royals to serve as her own soap box. Using a mixed-race American who achieves some success in a difficult profession (performing), then marries a British prince with the automatic money, glamor and influence that status confers as an example of racial persecution is ridiculous on its face. This is a confirmation bias classic for the ages: the black feminist activist saw what she wanted to see in one of the worst possible settings to see it. The “review” could have been written before the interview was broadcast; I bet most of it was.
  • The U.K.’s media regulator ( that is,censor and political correctness enforcer) Ofcom is investigating Piers Morgan because 41,000 people wrote to complain about the then-ITV’s “Good Morning Britain” host stating the obvious about Meghan Markle and Prince Harry’s joint whine with Oprah Winfrey. On “Good Morning Britain”, which Morgan quit mid-show after being attacked by his co-host, Morgan said he did not believe Markle’s statement that she had approached the Royal family for help because she had suicidal thoughts, and was turned down. “Who did you go to? What did they say to you? I’m sorry, I don’t believe a word she said…I wouldn’t believe it if she read me a weather report,” Morgan said. Neither would I, especially when such tales were attached to no details whatsoever. Morgan is a media low-life to be sure, but that doesn’t mean he isn’t right in this case. It’s a problem, though, when the most vocal and accurate critic of a manufactured narrative is so easily discredited.
  • In the U.S., the Left will sanctify the Duchess of Sussex because she’s female and blackish, thus meaning that to question her word or character is per se racism. (She’s like a Kardashian with superpowers). The Right is mostly anti-monarchy, so any harm she does to the Royals is regarded as a plus. One poll indicates, however, that the British public is less gullible: Meghan is now the least popular Royal, even behind Jeffrey Epstein pal and likely defiler of under-age girls Prince Andrew.

It’s only because the Brits are racists, of course.

2. Is there a media critic in the United States that isn’t a partisan hack? David Zurawik of the Baltimore Sun certainly fails the test. Imagine writing a column titled “If Fox News wants to be a political tool, it should be treated as such and not given access meant for journalists” after the performance of all the other news organizations from 2016 on and expecting to be taken seriously. Has the mainstream media ever committed itself to a single partisan political objective more brazenly than the propaganda campaign against President Trump? Zurawik’s claim is either delusional or a lie aimed at the deluded….of which there are many.

3. White House dog ethics. Apparently the mysteriously reported “incident” that resulted in President Biden’s two German Shepherds being banished to Delaware was more than a mere nip: the victim of a bite by Major, a rescue dog, was really hurt. “There Will Finally Be Dogs in the White House Again,” was the headline in Harper’s in January, over one of many stories cheering the fact that the new “normal” President would have a dog, unlike the weird, mean, non-animal lover on the way out. In truth, the modern White House is no place for a dog—too stressful, too many visitors and strangers— and many First Pets have been acquired as PR props rather than out of genuine love for canines. Getting a rescue dog is admirable, but they often come with behavioral problems and special sensitivities that must be addressed, or they can be dangerous. My sweet rescue dog Spuds, for example, has night terrors, and woe be to any human that wakes him up while he’s recalling past abuse.

4. Governor Cuomo is now up to SIX accusers! Who could have predicted…oh, right. I did. But I’m sure it was all just a misunderstanding, like the Governor says. Sarcasm aside, I doubt Cuomo is a threat to Bill Cosby’s total, but I didn’t expect the Cos to top 50 either.

Added: Various conservative blogs and commentators are chiding Kamala Harris, who led the unethical smearing of Brett Kavanaugh as a sexual predator based on a vague high-school incident, for not weighing in on Cuomo’s alleged conduct. Harris is a two-faced hypocrite for sure—she agreed to run with a serial sexual harasser whose wrongful conduct is a matter of photographic record—but it is not a VP’s place to get involved with state government issues.

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More On Why Minneapolis Is Headed For Rodney King Level Riots

/ Jack Marshall / 33 Comments

Rodney King Riots Timeline

I have to believe the prosecutors in the George Floyd murder trial know that they are just marking time to but off a repeat of the 1992 Rodney King rioting in Los Angeles, and probably worse.

We know, or should, that former officer Derek Chauvin is not a racist, other than the fact that he is white. This may be enough to make him a presumed racist according to Black Lives Matter and Democratic Party cant, but not under the law. The news media has been diligently searching for Mark Furmin-like racist comments in Chauvin’s past, and if they haven’t found any by now, I think it’s unlikely that there are any to be found.

We know, or should, that Chauvin did not intend to harm George Floyd. He definitely wanted to make Floyd uncomfortable, because he was angry at his perp for resisting arrest. Nobody has argued seriously or persuasively that the officer intended to kill him.

Finally, we know, or should, that it is possible, even likely, that Floyd’s death was caused by his own careless ingestion of prohibited substances, including an overdose of fentanyl.

With these facts, my knowledge of prosecutorial ethics tells me that without the influence of other factors that should not be factors at all, a competent and responsible prosecutor would not charge Derek Chauvin. It is very likely that a verdict of guilty beyond a reasonable doubt cannot be achieved before a fair and competent jury, and prosecutors are forbidden from attempting to convict defendants while hoping that a dumb and emotional jury fails to weigh the evidence properly. If a prosecutor doesn’t think, based on the evidence, that an individual is guilty of a crime beyond a reasonable doubt, then no charges should be brought. That is exactly the situation regarding Chauvin and the death of George Floyd.

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Monday Ethics Final, 3/8/2021: A Bad Day In The Revolution

/ Jack Marshall / 9 Comments

GnadenhuttenMassacre

March 8 should be a day that “lives in infamy,” but it isn’t, in part because of this nation’s, and all nations’, tendency to forget episodes in their history that they would rather pretend didn’t happen. On this date in 1782, 160 Pennsylvania militiamen slaughtered 96 Christian Indians including 39 children, 29 women and 28 men. The Patriots killed their captives by hammering their skulls with mallets from behind, as the victims knelt praying and singing. The Patriots then piled the bodies in mission buildings, and burned the entire Moravian Mission at Gnadenhutten to the ground in the Ohio territory. . The Pennsylvanians claimed that the attack was revenge for raids on their frontier settlements, but the Native Americans they killed were not involved in any attacks. In fact, they were pacifists who had been assisting the Americans against the British by serving as scouts and performing other services.

There were consequences of the massacre, though not to the criminals responsible. Despite talk of bringing the murderers to justice, no charges were filed. But Native American tribes became less willing to trust the Patriots as the Revolutionary War continued. When General George Washington heard about the massacre, he told his soldiers to avoid being captured alive by Indian forces, as he feared the Americans would be tortured. Many were, and Native Americans had longer memories of the atrocity at Gnadenhutten than the citizens of the new nation. In 1810, Shawnee chief Tecumseh pointedly reminded future General and later President William Henry Harrison, “You recall the time when the Jesus Indians of the Delawares lived near the Americans, and had confidence in their promises of friendship, and thought they were secure, yet the Americans murdered all the men, women, and children, even as they prayed to Jesus?”

Theodore Roosevelt, a historian in addition to his other pursuits, called the atrocity “a stain on frontier character that the lapse of time cannot wash away.”

But it has, hasn’t it?

1. And they said Trump supporters were stupid! A group called Pro-Life Evangelicals for Biden feel betrayed:

Pro Biden

These people really believed that the Democratic Party was going to “engage” on the topic of abortion, and that electing Joe Biden President would lead to compromises and moderation on the issue. Let me write that again: These people really believed that the Democratic Party was going to “engage” on the topic of abortion, and that electing Joe Biden President would lead to compromises and moderation on the issue.As you know, I have constant difficulty accepting the principle that being stupid isn’t unethical. Outrageous stupidity makes me angry, and maybe that’s unfair. Episodes like this are difficult for me to put in perspective.

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I Hearby Forgive Prof. Jonathan Turley For My Having To Toss My Completed “What An Idiot!” Post On Rep. Swalwell…

/ Jack Marshall / 18 Comments

Village idiot

…because Turley did such a superb job showing how ridiculous Swalwell’s lawsuit is. I couldn’t possibly compete.

I saw the note about Swalwell filing a a 64-page complaint against Donald Trump ( and Donald Jr., Rudy Giuliani, and Rep. Mo Brooks) alleging nine counts in tort ranging from negligent emotional distress (suffered by Swalwell) to negligence, in an “incitement to riot.” That news sparked three thoughts: 1) “What an idiot!” 2) “Who was the hack lawyer who agreed to file such a suit?,” and finally, 3) “This will be a fun post to write!” And it was, except that while I was formatting, editing and arranging tags, commenter Steve Witherspoon dropped me an email that said in part, “Did you read Turley’s blog post about Eric Swalwell posted a couple of hours ago? WOW!!!”

I hadn’t, I did, and “Wow!” indeed. It’s a tour de force.

The take-no-prisoners defenestration of Swalwell is unusually merciless for Turley, who begins,

“French philosopher Voltaire said he had only one prayer in life — “O Lord, make my enemies ridiculous” — and that it was uniformly granted by God. The answer to Donald Trump’s prayers may be Rep. Eric Swalwell (D-Calif.)”

Do read the post. And as you do, remember that the idiot Turley is writing about was hand-picked by Nancy Pelosi to be one of the House Managers in the second Trump impeachment trial. The University of Maryland School of Law must be measuring the heads of its board, administrators, alumni and faculty for paper bags to wear, because that school gave Swalwell a law degree.

Saturday Ethics Diversions, 3/6/21…And Remember The Alamo!

/ Jack Marshall / 16 Comments

Alamo morning

On this March date in 1836, after a 13 day siege, the Battle of the Alamo ended when a pre-dawn attack by the much larger Mexican force slaughtered the 200 (or more) Texan defenders, creating many legends—the line in the sand, Jim Bowie’s desperate fight from his sickbed, Davy Crockett battling on as the Mexicans poured over the walls of the fort— and an iconic symbol of American bravery, sacrifice, and resistance of tyranny. The final minutes of the defenders were spent in desperate hand-to-hand combat with knives, swords and clubs.

Thirteen days earlier, on February 23, Mexican General Antonio Lopez de Santa Anna ordered a siege of the Alamo Mission, near present-day San Antonio. It was occupied by rebel Texas forces. They spent the next two week ducking shells during the night and repairing the fort during the day. On the night of the 5th, however, there was no shelling. The exhausted men of the Alamo finally had a chance to sleep, and the Mexicans were almost inside the walls before they awakened. The bloody battle was over in less than 30 minutes. Several Texans reportedly surrendered, but Santa Anna ordered all prisoners executed, as he had promised when William Barrett Travis refused to surrender at the outset of the seige. Historians estimate that the battle cost Santa Anna between 400 and 600 soldiers, a high price for a fort with little strategic value. On April 21, 1836, Texas and Mexico fought again at the Battle of San Jacinto. This time it was the Mexicans who were surprised, and the rout won independence from Mexico and brought the Texas Revolution to an end.

I’ll be watching the 1960 John Wayne movie tonight. It is historically inaccurate in almost every way, but if there was ever an event in our history when the legend was more important than the reality, it is the battle of the Alamo.

1. It’s great to see that the news media and others have adopted a more fair and forgiving sta… Oh. Oh, right. “It’s amazing. Indian-descent Americans are taking over the country: you, my vice president, my speechwriter,” President Biden told Swati Mohan, NASA’s guidance and controls operations lead for the Mars Perseverance rover landing. Imagine the reaction from Democrats and pundits had the previous President said that. It would have been a story for weeks. The episode would have been cited any time one of the Trump Deranged was asked to defend the hardy Big Lie that Trump was a racist. Now that Joe Biden is President, the office is back to having the benefit of a presumption of good will, which is necessary for any President to do his job. About the only people mentioning Joe’s latest—read his quote with Jews or “blacks” in place of “Indian-descent Americans”—are bitter conservative pundits, and people like me, who foolishly believe that the same standards should be applied regardless of race, creed, gender or political affiliation.

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When Ethics Fails, The Law Steps In, And Often Makes An Ass Of Itself…

/ Jack Marshall / 1 Comment

Greg-Abbott

There is no excuse for this:

Abbott tweet

Well, let me clarify that a bit. Anger, frustration, outrage at the open attack on democracy and a level playing field in the marketplace of ideas are all legitimate reasons for someone to default to “there ought to be a law!,” but there is no excuse for elected officials like Abbott and Texas legislators displaying such ignorance of the Bill of Rights.

Stipulated: what Big Tech and the social media platforms are doing right now, deliberately and brazenly attempting to slam their fists down on the scales of democracy to make it as difficult as possible to communicate opinions, news and other expression that our rising woke dictators find inconvenient, is a genuine threat to the nation’s values and existence. However, those same values will be weakened if laws mandating companies to be fair and ethical undermine the First Amendment. As the giddy AUC and my Trump Deranged Facebook friends immediately reply to any criticism of the growing censorship of conservatives and especially President Trump, a private company has a nearly absolute right to decide who has access to its free services. As the social justice crusaders don’t say, but prove every time they make this kneejerk observation, they are thrilled to see their fellow citizens muzzled this way, since it advances their own interests. Big Tech and the social media companies have the right, but it is not right for them to abuse it this way when they have so much control over public debate and information.

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Pre-Weekend Ethics Prep, 3/5/2021: Obama Disses Pete, John Defends The Redcoats, Harvard Beats Crump, And Zoom Strikes Again

/ Jack Marshall / 9 Comments

Massacre-jpg

1. Today this post, from two years ago, is suddenly getting a lot of views. The reason: there was a resolution of the long-shot law suit by the descendants of two slaves in photographs owned by Harvard University. The slave’s descendant, Tamara Lanier, had employed Benjamin Crump, legal race-hustler without peer, to sue on the Hail Mary theory that

“the images are the “spoils of theft,” because as slaves Renty and Delia were unable to give consent to being photographed., and that Harvard is illegally profiting from the images by using them for “advertising and commercial purposes.” By keeping the photos, the lawsuit claims, Harvard has perpetuated the hallmarks of slavery that prevented African-Americans from holding, conveying or inheriting personal property.”

Sure, Ben….from the post:

“Harvard and other universities set themselves up for this by caving to historical airbrushing demands by the students they have helped indoctrinate, such as when Georgetown University established a policy giving an edge  in admissions to descendants of slaves who were sold to fund the school. I would say they have this coming and let them sleep on the bed of nails their laziness and cowardice have made, but therein lies a real danger. Harvard, which of late has been devising and defending one bad progressive idea after another (like discriminating against Asian Americans as Harvard’s own way of helping African Americans get admitted to the college), might just decide to be woke rather than responsible, and let Mrs. Lanier take the photos, thus setting a precedent with endless potential to cause havoc.”

Justice Camille F. Sarrouf of Middlesex County Superior Court this week acknowledged that the daguerreotypes had been taken under “horrific circumstances” but said that if the enslaved subjects, Renty and Delia, did not own the images when they were made in 1850, then their descendant who brought the lawsuit, Tamara Lanier, did not own them either.

Duh.

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It Wasn’t Censorship That Caused The Principal To Take Down The Student’s Transgender Essay…

/ Jack Marshall / 9 Comments

teaching-writing

Courthouse News Service reports that a March 2 opinion by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia has ruled that the Anderson Mill Elementary School in Spartanburg County, South Carolina and its principal had not exceeded their authority to regulate school-sponsored student speech when they refused to distribute a student essay on a controversial topic.

At issue was an essay authored by a 10-year-old girl on the topic of transgender individuals. Thework was originally included in an essay collection placed in the student’s classroom and distributed to parents. The school principal ordered the essay to be removed, telling the girl’s mother that it was age-inappropriate and would upset some parents. The mother filed a lawsuit on behalf of herself and her daughter for a claimed violation of the First Amendment, naming the principal, the school and the school district as defendants.

The law is pretty clear on this point, and I suspect that this was a pro-trans rights grandstanding and virtue-signaling exercise by someone who has time on their hands and money to burn, and who found a lawyer wanting to make noise about alleged anti-transgender discrimination…which this incident was not.

I regard such lawsuits as unethical abuses of process.

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Mid-Day Ethics Supplement 3/4/21: It’s Constitution Day!

/ Jack Marshall / 4 Comments

us-constitution-01a

Not that the U.S. actually has a holiday memorializing the first day our fledgling nation began operation under the most important secular ethics document in world history, but our priorities are thoroughly messed up right now, as you no doubt know.

At the conclusion of the Constitutional Convention in Philadelphia on September 17, 1787, 38 of the 41 delegates signed the new U.S. Constitution. Article VII stated that the document would not be official until it was ratified by nine of the 13 states. Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut quickly ratified it, but the other states, led by Massachusetts, opposed the Constitution for, among other things, its lack of protection for basic rights such as freedom of speech, religion, and the press, and the right to bear arms. In February of 1788, the states reached a compromise. Massachusetts and other states agreed to ratify the document with the stipulation that the amendments, eventually called the Bill of Rights, would be incorporated. On that basis the new Constitution was thus narrowly ratified in Massachusetts, Maryland, and South Carolina. On June 21, 1788, New Hampshire became the crucial ninth state to ratify. Government under the U.S. Constitution was scheduled to begin on March 4, 1789 and so it did.

On September 25, 1789, the First Congress of the United States adopted the 12 amendments to the U.S. Constitution called the Bill of Rights, prompting last hold-outs of the 13 original colonies, North Carolina and Rhode Island, to finally ratify the Constitution.

1. David Brooks take notice: This is how it is done.…Normally I would make this item a main post: From the Times today…

While serving as transportation secretary during the Trump administration, Elaine Chao repeatedly used her office staff to help family members who run a shipping business with extensive ties to China, a report released Wednesday by the Transportation Department’s inspector general concluded. The inspector general referred the matter to the Justice Department in December for possible criminal investigation. But in the weeks before the end of Trump administration, two Justice Department divisions declined to do so.

I have a personal conflict of interest in matters involving Ms. Chao, rendering it impossible for me to be objective regarding her conduct. Decades ago, my friend and mentor Tom Donahue at the U.S. Chamber set up a meeting with the then Bush Labor Secretary to discuss possible employment options and leads. To say that she treated me rudely would be a gross understatement. I have seldom been so unprofessionally treated in my life, and the extent of her abuse was signature significance: fair, ethical, good people don’t ever treat anyone that way, not even once.

You should read the article—the Times doesn’t pull any punches, since Chao is a) a Republican b) a Trump Cabinet member and c) Mitch McConnell’s wife—but I will mention this part, which I would have if I had never had a preview into the rottenness that is Elaine Chou, since its dishonesty and contempt for the public’s intelligence speaks for itself:

Ms. Chao had declined to respond to questions from the inspector general and instead provided a memo that detailed the importance of promoting her family as part of her official duties. “Anyone familiar with Asian culture knows it is a core value in Asian communities to express honor and filial respect toward one’s parents,” the September 2020 memo said. “Asian audiences welcome and respond positively to actions by the secretary that include her father in activities when appropriate,” it continued.

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