Law & Law Enforcement

Observations on the Epstein Drama. Summary: I Don’t Understand This At All.

/ Jack Marshall / 52 Comments

Right now, a sniffling groups of women including past victims of the Jeffrey Epstein sex trafficking operations are standing in front of the Capitol before Congress’s vote on releasing “the Epstein files,” whatever that means at this point. One speaker—they are all saying not just kind-of the same thing, but exactly the same thing but in different words (sometimes) said that their lament isn’t about politics. It’s obviously about politics. Both CNN and MSNBC, the most aggressive Democratic propaganda agents broadcasting, are showing the demonstration live, as if it’s important news. Fox News is barely mentioning it.

The issue is political and partisan. The proof is irrefutable. Why didn’t the victims, or whoever organized them, or the mainstream media, insist that the Biden Administration release the files when the power to do so was entirely within its grasp? Nobody thought of it? The Democrats were fabricating ways to “Get Trump” and had been since 2015; everyone knew he had once been pals with Epstein; and the scandal was 20 years old. The Epstein revival only became a thing when the Axis of Unethical Conduct became desperate in its efforts to slow down Trump 2.0 as his administration began dismantling the Obama-Biden nascent totalitarian state. Naturally, Axis media was all in. Naturally, publicity hound Marjorie Taylor Greene, who comprehends neither law nor logic, decided to use it to get cheap clicks. Maybe she really thinks a rehash of the evil deeds of a man who has been dead for six years is a good use of her time; who knows? She’s an idiot.

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What Would We Do Without “Experts”?

/ Jack Marshall / 2 Comments

Over the last two days, the listserv of the Association of Professional Responsibility Lawyers (APRL) had been embroiled in a debate over ABA Model Rule of Professional Conduct 3.10 and its application to a hypothetical posed by a member. The association, which I belong to, includes law professors, ethics partners, CLE trainers, and ethics consultants, expert witnesses—pretty much all of the legal ethics experts in the United States.

There is no ABA Model Rule 3.10.

Eventually, after a lot of replies, someone figured out that the question really involved California’s Rule 3.10, which neither the ABA nor any other jurisdiction includes. The big clue was that the member who posted the hypothetical practices in California, though the state was not mentioned in the original post. Most of the responses to the post were also California lawyers, none of whom mentioned that this was an issue confined to their state.

Question: are these legal ethics experts unaware that the rule in their state is an outlier? Or is the Golden State such an impenetrable bubble that legal ethics experts there assume that its often bizarre sensitivities are the only ones that count?

[Perhaps relevant (or not): the lawyer who started the debate over the almost imaginary ethics rule includes mandatory pronouns in each post.]

No, Dr. Gelman, Just Because You Think Your Toaster Is A Lawyer Doesn’t Mean What You Say To It Is Privileged

/ Jack Marshall / 7 Comments

Its continues to amaze me whom the New York Times will give a platform to. Take Dr. Nils Gilman (please!), a historian who “works at the intersection of technology and public policy,” whatever that means.

He has written a supposedly learned column for the Times [gift link] claiming that human beings should have something akin to attorney-client privilege when they shoot off their mouths to their chatbots. His cautionary tale:

On New Year’s Day, Jonathan Rinderknecht purportedly asked ChatGPT: “Are you at fault if a fire is [lit]because of your cigarettes?”… “Yes,” ChatGPT replied…. Rinderknecht…had previously told the chatbot how “amazing” it had felt to burn a Bible months prior….and had also asked it to create a “dystopian” painting of a crowd of poor people fleeing a forest fire while a crowd of rich people mocked them behind a gate.

Somehow the bot squealed to federal authorities. Those conversations were considered sufficient evidence of Rinderknecht’s mind, motives and intent to start a fire that, along with GPS data that put him at the scene of the initial blaze, the feds arrested and chargeed him with several criminal counts, including destruction of property by means of fire, alleging that he was responsible for a small blaze that reignited a week later to start the horrific Palisades fire.

To the author, “this disturbing development is a warning for our legal system.” You see, lonely, stupid people are using A.I. chatbots as confidants, therapists and advisers now, and the damn things cannot be trusted. “We urgently need a new form of legal protection that would safeguard most private communications between people and A.I. chatbots. I call it A.I. interaction privilege,” he pleads.

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A Law Student Production of “Hamlet”

/ Jack Marshall / 10 Comments

The Georgetown Gilbert and Sullivan Society is the now half-century old theater organization I inadvertently spawned as a first year law student (before they were called “1Ls”) at Georgetown University Law Center. Right now, the group, which calls itself “The only theater group with its own law school,” is nearing an all-time peak in student participation, interest and talent, making this old lawyer-theater guy proud and happy indeed.

Last night I attended closing night of the group’s ambitious, full production of “Hamlet,” which most community theater groups wouldn’t dare attempt. It was a modern dress version (period set “Hamlet’s” are the exception rather than the rule and have been for decades) with an “emo” concept that worked just fine. The student director staged with skill and intelligence, the casting was spot on, and it even gave me some new insights into the work despite having see the play too many times to list. Yes, a woman played the Danish prince, but the 1L actress was excellent, and female Hamlets first appeared in 1899, when the great Sarah Bernhardt played the role.

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One Non-Profit With Integrity, Another Without

/ Jack Marshall / 5 Comments

First, on the ethical side…we have The Foundation for Individual Rights and Expression, which picked up the metaphorical baton on non-partisan defense of freedom of speech after the ACLU threw their mission away and became just another lackey for the Democratic Party.

A federal district court today dismissed with prejudice the lawsuit against Iowa pollster J. Ann Selzer stemming from her late and spectacularly wrong poll before the 2024 election showing Donald Trump losing reliably Republican Iowa to Kamala Harris. The lawsuit, brought by a subscriber to The Des Moines Register and structured as a class action asserted claims under Iowa’s Consumer Fraud Act was fraud and attempted election interference. It was a stupid lawsuit, so Selzer, represented pro bono by FIRE, which explained that commentary about a political election, including polls, are protected speech. The court agreed that “polls are a mere snapshot of a dynamic and changing electorate” and “the results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred.” The court also held the plaintiff had “no factual allegations” to support his fraud claim, instead “invok[ing] mere buzzwords and speculation” to support his claims.

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Unethical Quote of the Month: Un-Named California Lawyer

/ Jack Marshall / 54 Comments

Gail Herriot is Professor of Law at the University of San Diego School of Law and a member of the United States Commission on Civil Rights since 2007. She is a conservative, so much of the civil rights racket (“Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket.” Eric Hoffer) objects to her existence.

Herriot recently posted the following jaw-dropping letter that she received from a member of the California Bar:

Dear Ms. Heriot,
 
This letter serves as a formal cease and desist demand regarding your ongoing, public, and targeted efforts to undermine and harass the Black community and its advocates for equity, in direct violation of state and federal civil rights laws and your ethical obligations as a member of the bar.
 
Your activities—including those publicly associated with the California Foundation for Equal Rights (CFER) (among others) and campaigns explicitly opposing Black-focused equity —constitute racial targeting and harassment under the Civil Rights Act of 1964, 42 U.S.C. § 1981, and applicable state hate crime and anti-discrimination statutes. Such conduct is not protected expression when it rises to the level of coordinated intimidation or bias-based obstruction of legally protected programs. It is particularly egregious that your public campaigns have focused solely on efforts benefiting the Black community, while remaining silent on or even supportive of state and federal allocations to other racial or ethnic groups. 
 
For example: In 2021 and 2022, the State of California directed substantial funding—over $165 million—to AAPI anti-hate initiatives, a commendable effort to address rising hate incidents against Asian Americans.
 
In 2024, the California Legislature authorized over $300 million in support for Holocaust survivors and members of the Jewish community, recognizing their suffering and need for continued support.
 
Despite these allocations, your campaigns have not targeted or criticized these initiatives—only those aimed at repairing centuries of harm done to Black Americans, who remain the most frequent victims of race-based hate crimes nationwide according to federal data. Your selective and racially targeted opposition to Black equity initiatives, combined with your public standing as an attorney, member of a federal civil rights commission and educator, magnifies the discriminatory impact and constitutes a pattern of bias-based harassment under both state and federal law.
 
Accordingly, you are hereby ordered to immediately cease and desist from any further direct or indirect harassment, public misinformation, or racially targeted advocacy directed toward the Black community or programs designed to support it. Continued actions of this nature may result in:
 
Formal referral to state bar disciplinary authorities for violations of the Rules of Professional Conduct concerning bias, harassment, and discrimination; and
 
Referral to appropriate civil rights enforcement agencies for investigation under state and federal hate crime and civil rights statutes.
 
Please provide written confirmation within ten (10) business days that you have received this notice and that you will comply fully with its terms.
 
Warmest Regards,

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The Unethical Party: Update

/ Jack Marshall / 5 Comments

Item: The Democratic Mayor of Chicago hits the zenith of Orwellian NewSpeak and progressive “It isn’t what it is” gaslighting. Plus he’s an idiot.

Asked about “illegal aliens” in Chicago by a reporter, Mayor Brandon Johnson actually said, “We don’t have illegal aliens. I don’t know if that’s from some sort of sci-fi message for which you’ve had.”

Chicago has lots of illegal aliens, which is the accurate term for non-citizens (aliens) who are on U.S. soil illegally.

The reporter explained that he was using the accurate legal term, and Johnson, against all odds, made an even more ridiculous remark. “Listen, the legal term for my people were slaves,” he said. “You want me to use that term, too?”

Well, yes, if one is to referring to the period in which “his people” were, in fact, slaves, called slaves, sold as slaves, and referred to themselves as slaves.

“Let’s just get the language right,” the mayor continued. “We’re talking about undocumented individuals that are human beings. The last thing that I’m going to do is accept that type of racist, nasty language to describe human beings.”

Just as calling slaves “slaves” isn’t racist, calling illegal aliens “illegal aliens isn’t “racist.” “Undocumented individuals that are human beings” (Catchy!) are, in fact, illegal aliens.

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On President Trump’s $230 Million Justice Dept. Compensation Claim

/ Jack Marshall / 40 Comments

This situation is a) unprecedented b) raises ethics issues that a typical first year law student or a bright 16-year-old could figure out c) is easily resolved, though the solution would be messy to execute and d) is being misrepresented by the news media because of course it is. I have been stalling, I admit, exploring it here because I am sick to death of Trump related controversies, but I just discussed it 45 minutes ago in an ethics seminar, so I can’t avoid the story any longer.

The Facts:  Donald Trump, then a lowly private citizen (but ex-President) submitted a claim, lodged in late 2023, seeking damages for alleged violations of his rights by the F.B.I. and the special counsel tricked -up Russian election tampering investigation. In the summer of 2024, his lawyers filed a second complaint accusing the F.B.I. of violating Trump’s privacy when it raided Mar-a-Lagoin 2022 for to search for classified documents. That claim also accused the Biden Justice Department of malicious prosecution (Gee, ya think?).

Naturally, the Biden Justice Department (which also had a conflict of interest, as it was unlikely to relish the prospect of admitting wrongdoing during the Presidential campaign, did nothing, leaving the matter to be resolved after the election. But Trump won, and many of his lawyers are now officials in the Justice Department. They have, essentially switched sides. Even the President, not known for his sensitivity to ethical matters, realizes the problem. “I have a lawsuit that was doing very well, and when I became president, I said, I’m sort of suing myself,” Trump has said, adding: “It sort of looks bad, I’m suing myself, right? So I don’t know. But that was a lawsuit that was very strong, very powerful.”

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Breaking Ethics News: There’s a Major NBA Gambling Scandal! (Gee, What a Surprise…)

/ Jack Marshall / 6 Comments

(Of course, the obligatory…)

Here is the latest report, from the New York Times (gift link!).

Right now I don’t care about the details, which are just emerging. The point is that this was 100% inevitable as soon as the professional sports leagues got into metaphorical bed with the online gambling companies. Ethics Alarms has warned about this many times (here, for example). I couldn’t justify using the “I’m smart!” clip from “Godfather 2” (my usual “I told you so!” introduction) this time, though, because even Fredo would have seen this coming…especially in pro basketball.

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Addendum: “And the Charlie Kirk Assassination Ethics Train Wreck Rolls On…”

/ Jack Marshall / 11 Comments

I started writing this as a comment to the lively thread that has followed last night’s post, but decided to make it a separate post because the discussion raises its own ethical issues.

The Kirk denigration since the Turning Point USA founder’s death resembles that old kids game “telephone.” You would whisper a statement into the ear of the kid next to you who would pass it along down a line of ten or more and finally compare the original message to what the last one in the line heard. Hilarity usually ensued, as the vagaries of oral communication and the reception thereof resulted in “Mikey has a crush on Sue Brandeberry” turning into “Nike is suing someone who smeared crushed berries on its brand.” “Telephone” is a benign interpretation of a lot of the slander and libel against Kirk’s character and legacy; the non-benign interpretation is that people are just lying.

In the thread, a respected commenter here sparked some angry responses by answering my repeated question in the original post [“What did Kirk do or say that could possibly justify these freakouts?”] thusly: “At a guess, it might be his statement that passing the Civil Rights Act of 1964 was a mistake that might have been an issue. Or his highly uncomplimentary statements about Martin Luther King Jr and the approval of his assassination. Freedom of speech and all that.”

I have heard or read several equivalent versions of that answer since Kirk’s death, and they are worth clarifying and discussing.

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