Law & Law Enforcement

On California’s Lawyer Civility Pledge

/ Jack Marshall / 10 Comments

California lawyers in Marin County will soon be required to take a civility pledge as part of their annual renewal oath. The pledge, approved by the State Bar’s Board of Trustees, applies to all 286,000 licensed attorneys and will become mandatory on April 1.

Incredibly, California lawyers, a significant number of them, are objecting. The pledge is “vague,” they say, and could violate First Amendment rights. They also claim that it’s unfiar to change the entrenched courtroom habits of veteran lawyers; in other words, “How dare the bar hinder lawyers who have been successful being assholes?”

The frightening pledge reads simply, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

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Comment of the Day: “Ethics Jump Ball” (or “Brilliant Guest Post by Ryan Harkins”)….

/ Jack Marshall / 10 Comments

Yesterday, in near shock that a good and once wise friend posted on Facebook the head-exploding meme by a simple-minded activist named Jenny Carter, above, I challenged Ethics Alarms readers to perform the thorough defenestration of that smug brain-garbage it deserves. I had neither the time nor energy. Responding to my metaphorical Bat Signal, erudite veteran commenter Ryan Harkins came through like a champ, authoring the masterpiece below, a Comment of the Day if there ever was one. Here is his rebuttal, really a guest post in length and quality, in response to the post, “Ethics Jump Ball”:

Dear Jenny,

You can make strawmen of our principles all you want, and argue all day against them, but all that will gain you is a smug feeling and “likes” from your friends, and make absolutely no inroads with the MAGA crowd whatsoever.  But I know that your entire intent is to make me waste my time answering you.  So, perhaps foolishly, I will oblige.

To begin, a little groundwork.  A dilemma is only a dilemma if you really only have the two options.  If there is any other alternative, such argumentation falls apart.  Second, if you are going to address our principles, maybe you should determine what those principles actually are.  For example, being pro-Second Amendment is not about shooting people.  It is about the right to bear arms against, especially, an overbearing, tyrannical government.  Being pro-life does not mean that you believe that no one should die, ever.  Third, in any given situation, there may be more than one principle in play, and to ignore that to score rhetorical points is arguing in bad faith. 

So let’s get into it.

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California Apparently Doesn’t Believe in Following the Constitution

/ Jack Marshall / 10 Comments

This is unethical. I wonder how the state got that way, and if anything can be done about it?

ITEM: The Ninth Circuit Court of Appeals pointed out to the state that its obviously First Amendment-violating ban on firearms advertising was illegal, and now California must pay more than $1.3 million in legal fees to the plaintiffs. The law was virtue-signalling to California’s gun-phobics; I doubt any honest Constitutional law expert anywhere thought it could pass judicial scrutiny.

Assembly Bill 2571 (AB 2571) prohibited “firearms industry members” (whatever that’s supposed to mean) from advertising, marketing or promoting any firearms or “firearms-related products,” in a manner that is “designed, intended, or reasonably appears to be attractive to minors.” Wow, how about that statutory drafting?

Safari Club International and the other plaintiffs filed suit arguing that the statute violated the First Amendment by restricting commercial speech. They also argued that the law was unconstitutionally vague (Ya think?), a Due Process violation, and that it discriminated against a legal industry and makers of legal products. The rulings agreeing with them are here and here.

ITEM: Voters in California, according to a poll conducted by the Citrin Center for Public Opinion Research, support a proposed “wealth tax” on billionaires with 50% of California voters in favor of the measure and only 28% objecting to it. The concept comes from the Marxist brain of Bernie Sanders, who insists that people who resent other American having more money than they do should be able to just take it.

This scheme probably violates state and federal laws as well as the Constitution. The 5th and 14th Amendments block uncompensated “takings.” California’s 0.4% cap on personal property tax would seem to be a problem. The law also looks like an illegal bill of attainder, targeting specific individuals.

The California Communists who are pushing this bill seem to believe that the state’s billionaires will just be good little proles and hand the cash over. Gavin Newsom, who has no discernible principles, thinks the proposed law will make him look bad when he runs for President, so he says he’s against it.

Maybe all the billionaires, millionaires, entrepreneurs, companies and American citizens will abandon the Golden State to the illegal immigrants, shop-lifters, assorted criminals and censors, leaving California to emulate the dystopian Manhattan of John Carpenter’s “Escape from New York.” Surely there must be a less draconian remedy, but I have no idea what it is.

Update! “A ‘Great Stupid’ Court Case SO Stupid That It Makes “The Great Stupid” Look Almost Smart…”

/ Jack Marshall / 6 Comments

The story that the great radio story-teller Paul Harvey would now tell us the rest of was the subject of the post below, from August 2024. As you will see, it made my head explode, but there has finally been a resolution, and ethics and common sense prevailed. Review the horrible case. Will voters really hand power back to the party that not only responsible for such things, but that still wants to establish them as our national standards? Really?

But I digress. Here is the original post, and I’ll add the recent developments at the end…

That crude, ambiguous drawing above got a first grader—we’re talking six-years-old here—suspended. That’s almost all you have to know for your head to explode if it is properly wired.

The Ethics Villains and Dunces are so thick in this fiasco you could use it to lay bricks. I’m almost embarrassed to tell the story, which I first saw at Reason…

In March of 2021, a first grader referred to as “B.B.” ” drew a picture we are told was intended to show people of different races, representing “three classmates and herself holding hands.” (I’d save the money the family was planning on spending on art school for B.B., if that was their intent.) Above the drawing, B.B. wrote “Black Lives Mater” (Latin!) with the words “any life” stuck in-between the slogan and the jelly beans, or whatever they were. B.B. then gave the drawing to a black classmate, as what B.B. testified was intended as a friendly gesture. But the classmate either ratted out B.B. or the principal was told about it by the teacher, or something (because school administrators don’t have anything better to do than to police the political correctness of kids’ drawings).

The school’s principal, Jesus Becerra, admonished B.B., saying that the drawing was “inappropriate.” B.B. was ordered to apologize to her classmate, prohibited from drawing any more pictures in school, and prevented from going to recess for two weeks.

Continue reading →

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Ethics Quote of the Month: Ninth Circuit Judge Kenneth K. Lee

/ Jack Marshall / 15 Comments

“District courts cannot stand athwart, yelling ‘stop’ just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise.”

—Judge Kenneth K. Lee of the Ninth Circuit Court of Appeals, writing  separately as a panel overruled a district court and held that the President had the power to suspend the Refugee Admissions Program.

Of course he did. The law and Constitution is clear on that point, but a woke District Court halted the President’s decision anyway. This was unethical as well as illegal, but, as Prof. Josh Blackman writes,

“President Trump is back in office, progressives still challenge virtually every action he takes, and judges in blue states continue to grant relief. No surprise there. But there is a new dynamic. Now, not only are lower court judges resisting the President, but they are also resisting the Supreme Court. In August, Justice Neil Gorsuch rebuked an attempted . Judge Brian Murphy of the District of Massachusetts managed to get reversed twice by the Supreme Court in the same case. “When this Court issues a decision,” Gorsuch wrote, “it constitutes a precedent that commands respect in lower courts.” Gorsuch added that “[t]his Court’s precedents, however, cannot be so easily circumvented.” 

Remember, it is Trump’s opponents who keep accusing him of breaching “democratic norms,” yet the Axis of Unethical Conduct ( the “resistance,” Democrats and the media that carries on their propaganda) is literally defying the greatest democratic norm of all, the Constitution. Blackman calls this attempted usurpation of power by activist, partisan judges “judicial resistance,” in other words, an abuse of judicial power for partisan objectives. It is—this is me and not the professor saying this—grounds for impeachment. President Trump is not exceeding his Presidential authority as the Trump Deranged scream, but rather the judges and courts that are interfering in the Constitutional hierarchy. Unethical, you think? Damn right.

Blackman:

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The UK’s Frightening Warning On Cultural Pollution From Assimilation-Adverse Immigrants

/ Jack Marshall / 45 Comments

There are some cultures and some immigrants, refugees and illegal aliens that a nation has good reason to avoid letting into its territory. Islamic culture and Muslims are a blazing example. Europe and the UK are learning this hard lesson—that cultural diversity is only a boon if a nation’s traditional culture is nurtured and protected—too late. It remains to be seen if the U.S. will.

The flashing neon sign that the Mad Left will pooh-pooh, shrug off, deny or refuse to acknowledge? This:

Nearly 70 dog breeds in the UK could be banned under proposed new legislation on the sham theory that they are “unhealthy.” A new 10-point checklist of “extreme” physical characteristics will decide which dogs will suffer from health problems due to certain physical characteristics. The excuses for banning the breeds include “mottled coloration,” “excessive” skin folds (like English bulldogs), “fat faces” (like pit bulls and mastiffs), “temperament,” bulging outward-turning eyes (pugs), drooping eyelids, being low to the ground (like Queen Elizabeth’s Corgis) and more.

Don’t kid yourself and believe that this assault on freedom and family has anything to do with canine health. This an assault on dogs by Muslims, who believe that dogs are “unclean,” as Nerdeen Kiswani, a Palestinian Muslim New Yorker and activist, said in a recent social media post. This led Representative Randy Fine (R-Fla.) to reply, “If they force us to choose, the choice between dogs and Muslims is not a difficult one.” In response to that, Congressional Democrats are demanding that Fine be censured, because, after all, tearing down American culture is part of the current party’s mission.

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Ethics Dunce: Trump’s Justice Department

/ Jack Marshall / 10 Comments

The Trump administration last week proposed a rule that would shield Department of Justice lawyers from independent ethics investigations and bar discipline from the states and the District of Columbia. My legal ethics lawyer association’s listserv virtually melted down over it. Almost all of the association’s members are Trump Deranged, but in this case they had just cause to flip out.

The proposed rule would violate a federal law known as the McDade Amendment, which holds government lawyers are still subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. In addition to that, the proposed rule makes no sense: the state bars giveth licenses to practice law, and they obviously can taketh them away.

The Office of Professional Responsibility (OPR) came into being as a compromise measure long ago when politically motivated state bar ethics boards were applying different standards to government lawyers based on partisan interpretations of the ethics rules. OPR has never been as zealous in enforcing ethical standards as local bar associations, and the bars aren’t particularly zealous either. The D.C. bar has had several high-profile spats with OPR over the years, insisting, and rightly so, that it shouldn’t be required to ratify an OPR hall pass for unethical conduct.

I assume, and hope, that the clearly impractical rule change is DOA, and like so many other proposals and floated options from the Trump Administration, it is more of a negotiating ploy than a serious proposal. The truth is that virtually all of the bar associations are dominated by progressives and Democrats, and consider a lawyer being willing to work for the Trump Administration as strong evidence of inherently unethical character. It is also true, as I have discovered to my horror over the past year, that many of the bar associations are untrustworthy and corrupt. This was revealed to me in part when the D.C. bar, whose legal ethics CLE I had been prominently and successfully teaching for three decades, fired me after I tried to open a legal ethics can of worms—the bar’s unique non-lawyer partner option—that would reveal a gross and wriggling failure on the bar’s part to police its members, resulting in nation-wide fraud and harm to tort victims.

A New York Times op-ed about the unethical proposed rule deceptively (and risibly) asserts,

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AI Robocall Ethics

/ Jack Marshall / 15 Comments

This has to be illegal. If it isn’t, it is certainly unethical.

I got a call this morning with a caller ID that stated it was from a hospital. If I say “hello” and there is an odd pause, usually followed by a telltale <click> and voice saying “Hello?” I hang up immediately. because it’s a robocall. This time, however, there was no click, and a clear, unaccented, assertive voice called out, “Hello!” I was curious, so I responded,”What do you want?” “We’ve been trying to reach you,” the cheerful young woman said. “Have you been made aware of Medicare cash paybacks?” THEN I hung up. I know an AI bot when I hear one.

The problem is, most people over the age of about 40 do not. This one was good, the best I’ve heard yet. Way back in 2015, Ars Technica wrote about the then-new use of interactive robocalls, but that was before the AI revolution. Last night I had been watching a new streaming series starring Nicole Kidman and Jamie Lee Curtis in which a character is addicted to conversing with an AI version of her dead wife. These fake people are improving at a logorhythmic rate, and in about a week the non-humans calling me will be undetectable. That doesn’t mean they will be the same as real callers, which means neglecting to announce to an individual that the voice on the other end of the line is AI-generated is fraud, dishonest, a lie, and, of course, unethical.

There needs to be a tough law or regulation against this practice. Now.

The Classic Ethics Problem That Isn’t As Hard As Everyone Thinks It Is…

/ Jack Marshall / 38 Comments

I’ve been hearing and reading debates about the old (1884) criminal case The Queen v. Dudley and Stephens since law school, and I must say, I’m a bit sick of it.

A wealthy lawyer from Australia purchased bought a yacht named the Mignonette and hired a Captain Dudley to sail it to him it from England. Dudley and his three crew members encountered a violent a storm off the coast of Africa, and the Mignonette was swamped. Its captain and crew escaped in a lifeboat with minimal provisions. After more than three weeks adrift, the captain decided that all of them would die of hunger and thirst unless extreme measures were taken, so he took them. He decided that cabin boy Richard Parker, a 17-year-old orphan, should be slaughtered and eaten. The captain’s reasoning: Parker was already delirious from drinking seawater, so he was deemed the weakest and least likely to survive anyway. The three men killed to boy, collected his blood in a bailer and drank it, then removed his heart and liver and ate them.

It worked! They were rescued in time, just a few days later in fact. Dudley and the First Mate Edwin Stephens were also prosecuted and found guilty of murder, a result that was considered revolutionary, since resorting to cannibalism in such dire circumstances was considered a normal course of action, “the custom of the sea.” In the U.S. at the time, the courts widely accepted the “necessity doctrine,” which excuses some illegal acts if they are performed in good faith to prevent a greater harm.

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Ethics Hero: Laura Hughes

/ Jack Marshall / 8 Comments

The widow of high school teacher Jason Hughes, 40, who died during a student prank gone horribly wrong in Gainesville, Georgia, is demonstrating how some human beings can overcome anger, bitterness and the emotional need for retribution, choosing compassion and empathy instead.

Around 11 p.m. on March 6, Jordan Wallace, Elijah Tate Owens, Aiden Hucks, Ana Katherine Luque and Ariana Cruz, all 18-years-old, toilet-papered trees outside the Hughes’ home, a continuation of their school’s tradition of such pranks during exam week. As the group piled into two vehicles to flee, Jason Hughes ran out of his home to confront the teens, but tripped and fell into the road. Wallace, who had already begun speeding away in a pickup truck, accidentally ran over the prone teacher. The teens left their vehicles to render aid, but Hughes perished in the incident.

All five teens were charged with criminal trespassing and littering on private property; Wallace has has been charged with first degree murder as well as reckless driving.

Laura Hughes, who is also a teacher, is pleading with authorities to drop the criminal charges. “We ask that you continue to pray for our family and also for the students involved in the accident along with their families,” she said in a statement to reporters. “Please join us in extending grace and mercy to them as Christ has done for us…This is a terrible tragedy, and our family is determined to prevent a separate tragedy from occurring, ruining the lives of these students.”

The late father of two (above, next to his wife) wasn’t trying to angrily confront the pranksters but “was excited and waiting to catch them in the act,” Laura told the New York Times. Insisting that her husband was not pursuing the students to reprimand them but rather to express comradery with their innocently-intended prank. Hughes said that criminal punishment “would be counter to Jason’s lifelong dedication of investing in the lives of these children.”

First degree murder sounds like extreme over-charging by authorities. The entire episode is a blazing example of the caprices of moral luck. I agree that the students’ punishment should be left to the school if Laura Hughes doesn’t want to press charges. Ethics tells us that it is time to mitigate the damage, not to make the damage worse.