Law & Law Enforcement

The Unethical Fine Print Game

/ Jack Marshall / 17 Comments

I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,”  and the lawyer shrugs and says, “Whatever you say! It’s your contract”?

WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran  a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages.  22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”

The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it. Continue reading →

Morning Ethics Warm-Up: 7/17/17 [UPDATED]

/ Jack Marshall / 80 Comments

Good morning, everyone!

1. President Trump is upset about an ABC-Washington Post poll that among other things indicates that 70% of those polled believe that he has acted “un-Presidential” since being elected. Several analysts have suggested that pollsters have slanted their polling pools toward Democrats (remember the election?), but my question regarding this poll is, “What the hell is the matter with the other 30%?”

How in the world could anyone conscious argue that Trump is “Presidential,” other than on the rather technical basis that since he’s President, what he does is by definition Presidential? It would be mighty nice if an aide, a Cabinet member, a daughter, a White House chef or someone would explain this to him, but I’m convinced: he doesn’t get it, he won’t get it, and what weve  seen is what we’ll continue to get.

2. ALERT! The forgoing was written after I was fooled by a fake news site, aided and abetted by Instapundit, which either was also fooled or linked to the site as its own joke.  Thanks to reader Tom Adams for being  more alert than I was and quickly flagging this.

And by the way, screw them. I’m taking off the link, and I will probably give the site an Unethical Website designation. The only hint that the site is a hoax site is the other stories (“GOP Adopts Christie’s Sad, Bewildered Face As New Party Mascot”), but I read dozens of stories every day, and if i stopped to check all the other boxed and highlighted pieces I would never have time to do my job. There is nothing on the home page designating the site as satirical. Unethical.

I apologize to anyone I led astray. Somebody alert Instapundit. I’m not speaking to it.  Here was the original post…

That said and mournfully accepted, he won, he’s President, and the fevered efforts to somehow turn back time (I would not be surprised to see a new Bon Jovi Direct TV ad on the subject)  by “the resistance,” the Democrats and the news media are profoundly anti-democratic. This is what Jake Tapper was alluding last week with his tongue stuck so firmly in his cheek that it almost broke through his face. “The conspiracy goes much deeper than anyone expected,” Jake Tapper said on his news segment “The Lead.” “We’re talking tens of millions of people involved in this secret plot to make sure Hillary didn’t make it into the White House and to prop up Donald Trump as the winner….It’s far more sinister than we thought.”

Yes, some conservative websites and others took Tapper’s pointed gag seriously. This tells us…

…how little trust CNN has left with many Americans..

…how dumb a lot of conservatives are…

…why broadcast news hosts and reporters, even fair and clever ones like Tapper, should avoid sarcasm, satire, or facetious statements, and stick to the facts.

…Jake Tapper should get away from CNN before its toxic culture ruins his reputation. Continue reading →

From The “Law vs Ethics” Files: PETA Chooses To Harm An Artist On Behalf Of A Monkey Who Couldn’t Care Less, And Judges Think It’s An Amusing Legal Condundrum

/ Jack Marshall / 26 Comments

“I’m baaaaack!”

When we last heard from  photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the  copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque.  In 2011,  Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.

Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an  accident, snapped by the monkey while it was messing around with his equipment?

About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair.  Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street  to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?

Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA)  brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder. Continue reading →

The Unexposed Ethics Outrage On The Edges Of The Trump Jr. Meeting Controversy

/ Jack Marshall / 28 Comments

The Sergei Magnitsky Rule of Law Accountability Act  allows the U.S. President to impose visa sanctions and asset freezes on human rights abusers who kill, torture or violate the rights of human rights defenders, as well as government officials responsible for acts of significant corruption. The law and its various amendments that expanded its reach are at the heart of the sanctions currently being enforced against Russia. It was this law, and Russian efforts to blunt its force, that apparently was the real reason that Donald Trump Jr. was induced to meet with an indefinite number of Russians, Russian-Americans, and various individuals “connected” to the Russian government, the list of which is currently expanding like the roster of women allegedly raped by Bill Cosby.

The news media doesn’t seem to feel the Magnitsky Act is anything the public needs to know, perhaps because Donnie Jr. didn’t know much about it, if anything. The stories about his aborted meeting typically mention the Act briefly and without elaboration. They really don’t elaborate on Putin’s retaliation for the Act, which was to stop U.S. adoptions of Russian orphans. (I wrote about this indefensible conduct by Russia at the time, in 2012. The post had a grand total of eight comments. Five years was too long to wait for an update, and I’m sorry. Of course, we are supposed to have responsible and competent professional journalists to keep us informed. )Russia had been one of the primary sources of foreign adoptions by childless U.S. parents before 2012, when the Russian strong man retaliated against loving U.S. parents to show his annoyance with our government and his support of corruption at home.

It’s worse than that, though. The real victims of Putin’s retaliation are his nation’s own, innocent, most vulnerable children. There is virtually no domestic adoption in Russia, because parents can’t afford the children the have. There are lots of orphans though, because parents can give up infants they can’t care for, and the government is quick to remove children it believes are abused or neglected. Unfortunately, once these children are warehoused, there is no way out. The orphanages are underfunded and over-crowded. Once the children “age out,” they are sent to live in hospitals, clinics and other Russian institutions ill-equipped to care for them, and eventually dumped out into the street, where they often are abused or turn to crime. Continue reading →

Morning Ethics Warm-Up: 7/15/2017

/ Jack Marshall / 26 Comments

Gooooood Morning Ethics Alarms Readers in Vietnam (3, 501 views so far)!!

1. I am three new rationalizations and at least two Comments of the Day behind. Sorry.

2. One of the more creative efforts to make Donald Trump Jr.’s aborted opposition research meeting seem significant, sinister and one more step to the impeachment “the resistance” and the news media so, so desperately want is this article in the Washington Post, by a Rolf Mowatt-Larssen, the director of the Intelligence and Defense Project at Harvard’s Belfer Center, who was a director of intelligence and counterintelligence at the Department of Energy and previously a CIA intelligence officer in domestic and international posts. His analysis is a masterpiece of projection, supposition, unwarranted assumptions and exaggeration. Rolf’s argument is that the meeting is important because it constituted a “green light” to Russia that the Trump campaign approved of Russian meddling in the election, would not blow the whistle on it, would be open to more serious involvement, and would respond to such action with future quid pro quo favors. All of this, simply based on the willingness to meet on the hopes of acquiring dirt on Hillary Clinton.

It is useful a a microcosm of the entire Russia-Trump conspiracy theory, and indeed conspiracy theories generally. Applied to an agreement between a married man and a single woman to have drinks together, the fact that the man never tells his spouse about the meeting means that the man thought the meeting was illicit, was open to having adulterous sex with the woman, would react favorably to the woman’s subsequent efforts to undermine his marriage, and was a green light to the woman to escalate her seduction. But as in the case of Trump’s meeting, a married man having drinks with an unmarried woman is not illicit, no matter what Mike Pence thinks, and is not proof of any further actions or unethical intent no matter what conclusions the woman leaps to. There is also the disconnect that under Mowatt-Larssen’s analysis and his version of the Russian thinking, Donald Trump Jr was central to the Trump campaign rather than incidental. He also seems to think the right hand in this chaotic organization knew what the right hand was doing, which we know not to be true. Continue reading →

Now THIS Is An Untrustworthy Legislative Staffer…And Incidentally, We’re Doomed

/ Jack Marshall / 24 Comments

In March of 2016,  Stacey Plaskett, the delegate to the United States House of Representatives from the United States Virgin Islands’s at-large congressional district. entrusted her iPhone and its password to staffer Juan McCullum, who copied nude images and videos of legislator after offering to take the phone to an Apple store for repairs.

After he left Plaskett’s office, McCullum created a Hotmail account and “sent at least eleven e-mail messages to multiple persons, including politicians, members of the media, and other persons known to [Plaskett].” The e-mails contained “one or more of the nude images and videos,” according to this week’s indictment against McCollum. He also created a Facebook account, uploaded the visual content, and then Facebook-friended people in Plaskett’s district to spread the nude images far and wide.

A few questions: Continue reading →

Morning Ethics Warm-Up: 7/14/17

/ Jack Marshall / 55 Comments

Good morning!

1. It is a matter of constant fascination to me how all of President Trump’s personal lawyers appear to be flaming jerks, whatever their legal skills may be. Here’s an example from this week: Marc Kasowitz, President Trump’s personal attorney on the Russia conspiracy theory investigation, was contacted by a stranger, a retired public relations professional, who had read ProPublica’s unflattering story on Kasowitz. He sent the lawyer an email with the subject line: “Resign Now.’’

Kasowitz used the 30 minutes between 9:30 p.m. and 10 p.m. to bombard the man with threats and epithets, writing such dignified  messages as,

“I’m on you now.  You are fucking with me now Let’s see who you are Watch your back , bitch/”

“Call me.  Don’t be afraid, you piece of shit.  Stand up.  If you don’t call, you’re just afraid.” 

“I already know where you live, I’m on you.  You might as well call me. You will see me. I promise.  Bro.”

Nice.

This isn’t a legal ethics violation, though it almost certainly would be if Kasowitz were addressing an opposing counsel in such a manner. It’s just generally unethical as outrageous, inexcusable, gratuitous incivility, reflecting poorly on him, his profession and his client. A client who was minimally concerned about ethics would fire him.

2. Speaking of a minimal concern for ethics, Trump’s defense of his son’s dumb but legal meeting with the Russian lawyer promising dirt on Hillary included the statement that “most people would have taken that meeting.” Once again, we have evidence that Donald Trump literally doesn’t know what ethics is. Oh, his rationalizations are the same ones the average ethically-retarded citizen uses—this is why he is President. They are still rationalizations. Yes, Mr. President, and most people would accept extra money from an ATM and not tell the bank about it. And most people lie to get out of trouble. And most people do all sorts of unethical things, which doesn’t make them ethical, responsible or appropriate.

He is the President, though, and this is how we will inevitably become a nation of assholes. 

3.  And speaking of assholes, there is Nancy Pelosi. Because a female journalist was blocked from access to the House of Representative by a Sergeant of Arms who properly pointed out that she was wearing a sleeveless dress, always forbidden according to Congress’s dress code, we were suddenly subjected to the false narrative that those mean, sexist Republicans were abusing women again, as well as being typically antediluvian in their ideas about propriety. (Men can’t go sleeveless either, but never mind.) Paul Ryan was the target here, as the Speaker is officially charged with enforcing such rules. The narrative was not really about the dress code, but just part of the over-all “Get Republicans” news media strategy to make the party as unpopular as possible. Yesterday Paul Ryan plausibly said that he wasn’t aware of the rule in question, and was happy to amend it. Then Nancy Pelosi piled on, tweeting, “Glad to see [Speaker Ryan] is updating the dress code for the House Floor. These unwritten rules are in desperate need of updates.”

Pelosi was Speaker for four years, her tenure ending just six years ago. The same rule Ryan is being attacked for was in place during her entire tenure. Why didn’t she fix it herself, dedicated feminist that she is? Her tweet is such obvious hypocrisy that it calls attention to the double standards employed by Democrats, the news media and women. Pelosi could have cheered the change without appearing to duck her own responsibility for their continuation. Instead, she acted as if she was an innocent bystander.

Nancy Pelosi is a major reason the Democratic Party has become a party of assholes. Who but an asshole would tolerate a national leader like this as the face of his or her party in Congress? Are Democrats proud of this woman? Do they endorse her tactics and rhetoric? We have to assume so, don’t we? Continue reading →

Morning Ethics Warm-Up: 7/13/17

/ Jack Marshall / 26 Comments

Good Morning!

1. I owe Robin Meade an apology. The astoundingly bright-eyed, bushy-tailed HLN morning host has been used here as an an example of the sexism of broadcast news media producers, and it is true that she is uncommonly attractive even by “news babe” standards. However, I have come to realize that she is also a unique talent, and more than just a pretty face and figure. Meade has natural presence and charisma, projects genuine optimism and and an up-beat nature, and most unusual of all, doesn’t spin the news or tilt her delivery to signal her own opinion. She’s really good at what she does. I’m sorry Robin; I was biased against you because you are attractive, which is just as wrong as being biased for you. You’re a pro, through and through.

2. Constitutional law expert Eugene Volokh (who is also my favorite candidate for a Supreme Court post if one opens up) published what I consider to be a definitive refutation of the claim that receiving opposition research, as in “damaging information about Hillary Clinton,” is a crime under current law. He also makes a case that it couldn’t be criminalized under future law:

“It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).

Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?”

The professor concludes not. I hadn’t even considered the First Amendment issue in determining that the election law prohibition against receiving “anything of value” benefiting a candidate from a foreign nation or individual was not intended to preclude mere information, but Volokh’s argument seems air tight. Continue reading →

Observations On The Trump Jr. “Collusion” Attempt [UPDATED]

/ Jack Marshall / 44 Comments

1.  Preet Bharara, the ex-U.S. attorney fired by the Trump Administration, tweets…

Quick reminder: something doesn’t have to be illegal for it to be foolish, wrong and un-American.

True. When Donald Trump, Jr. was informed that a Russian lawyer wanted to meet with him to pass along damaging information about Hillary Clinton, he should have gone to the FBI immediately, because this could have been indicative of a national threat. Instead he said “Whoopie!” or words to that effect. Moron.

But we knew that.

*Notice of Correction: In the original post, I erroneously stated that Bharara had joined Mueller’s team investigating Russian interference with the election. That was incorrect. I apologize. I was confused by this headline from the Washington Examiner: Special counselor adds former Preet Bharara prosecutor to Russia probe: Reports. It’s a bad headline, but I should have read the whole article. Careless.

2. Similarly, if Danny Jr told Kushner and Manafort what he was told the meeting would be about, THEY should have told him that the meeting was a bad idea, and to report it. They are slime-bags, and none too bright either.

We knew that, too.

3. It may be pure moral luck that this didn’t turn into a serious breach of election laws. But the fact is that no information changed hands, as far as we know. There was no “collusion,” which isn’t a legal term anyway.

4. The New York Times, from its good side, actually detailed the legal realities of the case, which ironically show how absurdly over-heated and misleading its own coverage is. The Times consulted with legal experts who said,

  • The events made public in the past few days are not enough to charge conspiracy.  Renato Mariotti, a former federal prosecutor said the revelations are important because if further evidence of coordination emerges, the contents of the emails and the fact of the meeting would help establish an intent to work with Russia on influencing the election…at least on Donald Trump Jr.’s part.

But as has been the situation throughout, the episode is still waiting for real evidence of genuine collusion between the Russians and the Trump campaign, and this wasn’t it. The anti-Trump mob, in the news media and out of it, is so, so eager, so desperate, to prove sanctionable wrongdoing that it is pouncing on everything that contains a shred of hope.

  • There has to be an underlying federal offense that is being conspired to be committed. So far, there is no evidence of that, and the aborted meeting with the Russian lawyer didn’t come close.

If the e-mails released yesterday specified that what was being offered had been obtained by an illegal computer hack, that would  be enough. They didn’t. Continue reading →

The Good Luck Jet Engine Sabotage

/ Jack Marshall / 48 Comments

China Southern Airlines Flight 380 from Shanghai to Guangzhou was held up at the Shanghai Pudong International Airport after an elderly female passenger threw coins into the plane’s engine to ensure “good luck.” An investigation into the incident is under way, the airlines says.

This bizarre story raises a serious and difficult ethics question. At what point should there be severe societal penalties for egregious life incompetence?

The elderly are obviously the most prone to this sort of thing. At some point many of them just stop paying attention, or lose the ability to keep up. In criminal law, we do not typically punish people for harm they do as a result of ignorance, but there are limits. There have to be.

I have a long delayed post on life competencies on the Ethics Alarms drawing board; it will eventually be a permanent free-standing page, like the Rationalizations List. The topic is difficult. What skills and knowledge are all of us obligated to have, if not master? If our inattention to Continuing Life Education makes us menaces to society, how should society respond? With pity? Sympathy? Compassion? Pat the fools on the head, and give them a stipend?

Being an ethical member of society mandates being able to participate in society’s activities without constantly screwing up. That, in turn, requires a level of personal responsibility. Society needs reasonable, fair, not overly harsh or intrusive ways of persuading everyone to meet this minimum requirement of citizenship. What are they?

It doesn’t have to be as ludicrous as an old lady nearly crashing a jet by throwing good luck coins into its engine, either. As we are increasingly dependent on technology, and as technology moves up a J curve, the damage that can be done by, just to take a wild example that could never happen, someone in a sensitive position using “password” as their computer password, thus enabling a foreign governments to steal confidential data and use it to set off an Ethics Trainwreck, is terrifying. How does a responsible society send a message that is sufficiently persuasive to people before they blunder into chaos ?

I don’t know the answer yet.

I’m just asking.

And now, a song!

Three coins in the engine
Each one risking air distress
Thrown by one stupid granny
How should she pay for the mess?

Three coins in the engine
Each as deadly as the first
There they lie in the engine
See the flames there as they burst!

Which will make the airplane crash?
Which will make the airplane crash?

Three coins in the fountain
Through the turbines how they shine!
Just one wish will be granted
Hope the charred corpse isn’t mine…

 

________________________

Pointer: Fred

Source: Boing Boing