Ethics Quiz Of The Day: Deadly Dairy Queen?

February 7, 2017February 7, 2017 / Jack Marshall / 27 Comments

The late Kenneth Sutter

Harley Branham, 21, a manager at the Dairy Queen in Fayette, Missouri, has been charged with second degree felony manslaughter following the suicide of 17-year-old Kenneth Suttner, whom she supervised. At an inquest called by the Howard County coroner, witnesses testified that Branham mistreated the teen. She made Suttner lie on the restaurant floor as he cleaned it by hand, and once threw a cheeseburger at him. Other witnesses said the boy also had been bullied for years at his school, where students mocked his weight and a speech impediment.

The coroner’s jury blamed both the Dairy Queen and the Glasgow School District for failures in training and prevention of harassment, concluding that Branham “was the principal in the cause of death,” and also that Dairy Queen negligently failed to properly train employees about harassment prevention and resolution, according to the inquest’s verdict form. Jurors also found that the Glasgow Public School system was negligent in failing to prevent his bullying.

All of those factors, the inquest concluded, caused the boy “to take his own life.”

Suttner shot himself on December 21, 2015.

Howard County Coroner Frank Flaspohler explained the inquest and the verdict, saying, “I felt there was bullying going on and things weren’t getting corrected. Hopefully this makes the school pay attention to what’s going on. And it’s not just in that school. We all need to wake up and say this exists and we need to take care of it.”

Your Ethics Alarms Ethics Quiz of the Day:

Is this an ethical use of the criminal laws?

Continue reading →

Ethics Observations Upon Viewing “The People v. O.J. Simpson: American Crime Story”

February 6, 2017February 6, 2017 / Jack Marshall / 6 Comments

I never got to see all ten episodes of last year’s ambitious and star-studded mini-series about the O.J. Simpson trial before this weekend. Thanks to Netflix, I was able to watch them all in two nights. I watched most of the televised trial at the time, so the program brought back a lot of bad memories.

Overall the production was excellent, and some of the casting was creepily good, especially Sarah Paulson as Marcia Clark, Sterling K. Brown as Chris Darden, Kenneth Choi as Judge Ito, Courtney B. Vance in a magnificent portrayal of Johnnie Cochran, Rob Morrow as
Barry Scheck, Robert Morse, unrecognizable as Dominick Dunne, and Joseph Siravo as Fred Goldman. Unfortunately, Cuba Gooding, Jr., an excellent actor, is so unlike O.J. that it kept reminding us that this was a TV show. Nathan Lane and David Shwimmer also were unable to disappear sufficiently into their roles as F. Lee Bailey and Robert Kardashian. I couldn’t help thinking of “The Bird Cage” and “Friends.”

The script was remarkably even-handed, and for the most part, accurate. However, there were three legal ethics howlers that require some exposition, as well as some other matters that came to mind.

1. The Defense’s Secret Redecoration of O.J.’s home.

In the episode “The Race Card,” Johnnie Cochran was shown redecorating O.J. Simpson’s house before the jury came for a judge-approved viewing. Pictures of half-nude models were replaced by benign photos of Simpson’s mother and children, and Cochran scattered pieces of African art around the rooms, taken from his own collection.

Could the lawyers do this? Of course not! It’s a visual lie, and an attempt to mislead the jury. Ito ordered that the heroic statute of Simpson in his back yard be covered with a sheet to avoid biasing the jury in favor of the defendant. Had the prosecution team suspected that Cochran had pulled such a stunt, as the dramatization suggested, it would have alerted the judge, a mistrial would have been likely, and Cochran as well as every lawyer involved would have faced serious bar discipline.

The question is, did this really happen as portrayed? Defense attorney Carl Douglas said in a Dateline NBC’s special THE PEOPLE vs. OJ SIMPSON: What the Jury Never Heard that it did, and that he organized the redecoration. Douglas said the intention was to make the estate look “lived-in and stand with all of its regalness so that the jurors would say ‘O.J. Simpson would not have risked all of this for this woman.'” Douglas said that “photos of Simpson with white women were swapped out for pictures of him with black people. A Norman Rockwell painting from Johnnie Cochran’s office and a bedside photo of Simpson’s mother were placed in prominent view.”

Douglas should be suspended from the practice of law at the very least for this confession of outrageous ethics misconduct. (Cochran, who is dead, is beyond punishment.) Clark, Darden and Ito also failed their duties to justice and the public by allowing such a deception to warp the jurors’ perceptions. Continue reading →

About the “So-Called” Judge’s TRO

February 6, 2017February 6, 2017 / Jack Marshall / 30 Comments

Ethics Alarms had a revealing comment on the post about the grandstanding and unethical ex-acting-Attorney General’s breach of her duty to represent her client regarding the President’s Middle East immigration Executive Order. Following Judge Robart’s temporary restraining order (or TRO), the reader said, in essence, ‘See? She was right! The order was illegal, just like she said it was!’ The comment was idiotic on its face on many levels, yet it was also a fair summation of how partisan citizens have viewed the controversy. The various TROs validate the criticism of the Executive Order in their minds. They don’t, however. Judge Robart’s order particularly doesn’t. In fact, it is infuriatingly vague.

Now, a TRO doesn’t necessarily have to explain in detail what is wrong with a law, regulation or order. The purpose of this judicial act is to stall a measure that has the potential of causing a lot of disruption, unhappiness or expense from going into effect until there can be a decisive determination that it is legal, constitutional and within the power of the government entity that issued it. A judge issuing a TRO must conclude that the objection to the act is substantive, that the party applying for the TRO has a substantial chance of prevailing on the merits, and that the party has standing to object. The judge does not have to conclude that the party asking for the order is right, just that the party may be right.

However, reading Judge Judge Robart’s order, one can glean no clue as to why the TRO was justifiable, and why it is so sweeping. Although the judge writes in his conclusion that…

The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. …

[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

…the order never states what is illegal or unconstitutional in his view. This omission has led many analysts to conclude that there isn’t anything. He just doesn’t like the order. Much has been made of the fact that Robart was a Bush appointee, so the order isn’t “partisan.” Of course, the same people making this argument, in other settings, would maintain that a Bush appointment is just a bad judge. Many, many, many Republicans and conservatives detest the President, and especially, one should remember, the Bush family. It is far from unlikely that bias against the President caused Judge Robart to employ poor judgment. Democrats cite the fact that Rorart is a conservative as part of a wonderfully convenient construct: if a conservative judge opposes them, the fact that he’s a conservative means he’s wrong, and if a conservative judge agrees with them, the fact that he’s a conservative means he’s right.
Some of the exchanges in the hearing that led to his order directly contradict his written statement that he is not questioning the wisdom of the order rather than challenging its legality.

Continue reading →

Ethics Observations On The President’s “So-Called Judge” Tweet

February 5, 2017February 6, 2017 / Jack Marshall / 45 Comments

Ugh.

In case you were lucky enough to miss it, after Judge James Robart temporarily blocked President Trump‘s Executive order halting immigration from seven Middle East nations teaming with terrorists, nationwide, the President responded on Twitter yesterday:

Tweet 1.:

When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security – big trouble!

Tweet 2.:

Interesting that certain Middle-Eastern countries agree with the ban. They know if certain people are allowed in it’s death & destruction!

Tweet 3.:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

The last one inspired expressions of alarm and horror:

Senator Schumer: “POTUS’s attack on Judge Robart shows a disdain for an ind. judiciary that doesn’t bend to his wishes & lack of respect for the Constitution.”

Bernie Sanders: “Trump has to learn the very important truth stated by Washington AG Bob Ferguson: “No one is above the law, not even the president.”

Representative Jerry Nadler: ” No “so-called.” Judge Robart is a GWB appointee who was confirmed 99-0. We are watching closely your contempt for our Judicial Branch.”

Evan McMullin—remember, the Independent who ran to be President of Utah?—wrote,

“Disagreeing with a court decision is fine, but undermining the legitimacy of a judge and the Judiciary Branch is a threat to the Republic.”

(Somehow I just don’t think that a President who has for three months watched an entire political party seek to undermine the legitimacy of a duly elected POTUS–him–with protests, riots, recounts, an Electoral College rebellion, calls for impeachment, calls for military coups, Hitler comparisons, accusations of incest with his daughter, insanity, and conspiracy theories involving Russia will take too seriously the argument that three words in a tweet is a “threat to the Republic.” I could be wrong…)

Naturally bloggers, pundits and social media users have reacted to the three words with even more intensity.

Ethics Observations: Continue reading →

Esquire’s Ridiculous Book List Smear

February 4, 2017February 4, 2017 / Jack Marshall / 44 Comments

To paraphrase Michael Corleone, every time I think I’ve gotten away from having to comment on the extraordinary unethical performance of the national media toward the President, they puuuull me back in.

What is the correct and fair reaction to the latest media cheap shot on the President of the United States? This one would have been contemptible to inflict on a candidate before the election; now, almost three months after it, the feature is something to behold. Godwin’s Law is invoked far too often, but in this case, it tells the tale.

Esquire’s embarrassing article is called “20 Essential Books to Prepare You for What’s Next: A handy reading list featuring not-so-speculative dystopian fiction, political memoirs, and cautionary tales from Nazi Germany.” The point being made, of course, though already hackneyed, dishonest and thoroughly debunked, is that the President is Hitler. This contention requires ignorance of the United States culture and institutions, Germany, world history, Hitler and the President, but never mind: hate and fear is all the article is intended to generate, not perception or understanding. Taking it seriously requires blocking out the fact that it is the President’s opponents who are flirting with totalitarian methods, using violence to stifle dissent, trying to overthrow lawful elections, calling for coups, and co-opting the news media. The list is an insult without substantiation or justification; Esquire might just as well have published a full page reading: “The President of the United States is a Poopy-Face, and We Hate Him!” There is no substantive difference.

For anyone who has read the books and is not deranged regarding the President to the point of delusion, Esquire’s book list is kind of hilarious. “1984,” for example, is a vision of Soviet-style totalitarianism, with a news media that distorts facts to support a political party similar to the way our current news media manipulates it against the current administration, but previously did to bolster the Obama. Indeed, Esquire’s book list itself is Orwellian, using mass communication to control public opinion with deception, emotion and fear.

Sinclair Lewis’s “It Can’t Happen Here” was considered hysterical when it was written in the Thirties. Including “The Handmaiden’s Tale” as a guide to “what happens next” is about as silly an example of fearmongering as one could imagine: Continue reading →

Now THIS Is An Unethical Lawyer…In Fact An Unethical ETHICS Lawyer AND A Law Professor! [UPDATED]

February 3, 2017February 3, 2017 / Jack Marshall / 11 Comments

[ My apologies: when this was first posted, I had inadvertently pasted in an excerpt from the Justice press release when I thought I had inserted a link to the complaint. The result was gibberish, and I apologize profusely. Thanks to reader Neil Dorr for alerting me. No more posts composed on my netbook while watching the O.J. miniseries, I promise.]

Today the Justice Department announced a criminal complaint charging attorney Jack Vitayanon with conspiring to distribute 500 grams or more of methamphetamine. Incredibly, Vitayanon, who is under arrest, is an attorney with the Internal Revenue Service Office of Professional Responsibility in Washington, D.C. That’s the office that monitors IRS lawyers’ ethics. He’s also an adjunct professor at Georgetown University Law Center, where I got my law degree. I’m so proud.

Well, AMC needed a “Breaking Bad’ sequel.

The complaint says that Vitayanon conspired with others in Arizona and on Long Island to distribute methamphetamine for several years.He recently negotiated and competed the sales of distribution quantities of methamphetamine to undercover HSI special agents, and were recorded on internet-based video chats and text messages. Then the professor shipped the methamphetamine from his apartment in Washington D.C. to Long Island via Federal Express.

Vitayanon was also observed in his residence smoking methamphetamine from a glass pipe. A search of the defendant’s Washington D.C. apartment executed pursuant to a warrant led to the seizure of additional quantities of methamphetamine, drug paraphernalia, packaging materials and drug ledgers.

In other words, they’ve got him dead to rights.

The defendant graduated from Dartmouth, got his law degree at Columbia, and received his Masters in Taxation from NYU. A lawyer cannot be admitted to any bar without a showing of reliable and honest character. The system and the profession could not have failed more miserably.

Vitayanon is the criminal, but the legal profession and the IRS allowed the rot to get into works.

____________________

Facts:Washington Post

Ethics Observations On Berkeley’s Anti-Speech Riot

February 2, 2017February 2, 2017 / Jack Marshall / 139 Comments

From SF Gate:

A protest at UC Berkeley over a scheduled appearance by right-wing provocateur Milo Yiannopoulos turned fiery and violent Wednesday night, prompting police to cancel the event and hustle the Breitbart News editor off campus. But even after the event’s cancellation, hundreds of protesters spilled off campus into the city streets, where the violence continued as they confronted drivers, engaged in fights, smashed storefront windows and set fires.

Protesters decried President Trump’s policies as much as they did the visit by Yiannopoulos, a gay conservative who has been making the rounds at college campuses across the country with his “Dangerous Faggot” talks, specializing in remarks meant to insult, offend and disgust liberals who disagree with his ideas.

Supreme Court Vacancy Ethics: A Competent Choice, An Unethical Announcement, And An Irresponsible Reaction

February 1, 2017February 1, 2017 / Jack Marshall / 106 Comments

You know, if every day is going to set off multiple political ethics controversies, I’m not going to have time to write about lobster hats.

Last night, President Trump selected Colorado federal appeals court judge Neil Gorsuch as his Supreme Court nominee.

A. The Choice

Except for those who literally are determined to freak out and condemn anything President Trump does, this was a competent, responsible choice. He would be one of the best of the available choices for any Republican President, more qualified than Obama’s snubbed selection, Merrick Garland, to fill the same vacancy, and Garland was certainly qualified. It’s ridiculous that Gorsuch is one more Harvard grad on a Court that is exclusively Harvard and Yale, but that aside, he adds some diversity of outlook by being from the middle of the country rather than the coasts. He writes clearly, unlike, say, Justice Kennedy, and is not a pure political ideologue, like Ginsberg or Alito.

Before the Democrats’ rejection of Robert Bork shattered the tradition of allowing every President the privilege of having his SCOTUS nominations approved absent real questions about their competence or honesty, a nomination like this one would have garnered bipartisan praise. Trump made a responsible, competent, choice. Really. He did.

B. The Announcement Continue reading →

From The Sally Yates Misinformation Files: Senator Diane Feinstein, Ethics Dunce And Incompetent Elected Official Of the Month

January 31, 2017January 31, 2017 / Jack Marshall / 33 Comments

Biased, hypocritical and ignorant is no way to go through life, Senator…

Adding to the ignorance and misinformation drowning ethics comprehension regarding the Sally Yates affair, Sen. Feinstein used her questioning of Attorney General designate Jeff Sessions this morning to misrepresent the ethical duty of that office. (I don’t have a link yet, since I just watched it on C-Span.)

First, Democratic Senator Feinstein set some kind of modern political record for gall by asking Sessions for assurances that he would objectively and independently represent the justice system and the people, and not be a “political arm of the White House.” A political arm of the White House (and the Democratic Party) is exactly what Eric Holder’s and Loretta Lynch’s Justice Department were, and the Senator knows it and never raised her voice in opposition to it for eight years! The question is a fair one, but she is estopped from asking it. Indeed, for any Democratic Senator to ask that question is tantamount to deceit, suggesting that the previous Justice Department met the standard Feinstein is demanding that Sessions acknowledge.

This is the unethical double standard mindset that Democrats have been displaying since November 8.

Following that master class in hypocrisy, Feinstein lauded the justly fired Sally Yates for embodying that ideal. Feinstein is ignorant of what lawyers do and the ethical principles their profession obligates them to follow, apparently. Continue reading →

More On The Unethical Sally Yates: Her Conflict Of Interest Deception

January 31, 2017January 31, 2017 / Jack Marshall / 22 Comments

…and you shouldn’t have accepted the job, either.

Here is another ethics aspect of the disgraceful Sally Yates episode that the complicit news media isn’t covering: it was unethical for her to accept the job of acting Attorney General in the first place.

She had an apparent conflict of interest when she was offered the job. This is indisputable; it’s just being ignored by fawning partisans. Here is the applicable ethics rule of Yates’ bar and jurisdiction:

Rule 1.7–Conflict of Interest: General Rule

(a) A lawyer shall not advance two or more adverse positions in the same matter.

(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:

(1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;

(2) Such representation will be or is likely to be adversely affected by representation of another client;

(3) Representation of another client will be or is likely to be adversely affected by such representation;

(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.

(c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if

(1) Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and

(2) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

(d) If a conflict not reasonably foreseeable at the outset of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph (c), a lawyer need not withdraw from any representation unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4). Continue reading →

Ethics Alarms

An ethics commentary blog on current events and issues

Law & Law Enforcement

Ethics Quiz Of The Day: Deadly Dairy Queen?

Is this an ethical use of the criminal laws?

Ethics Observations Upon Viewing “The People v. O.J. Simpson: American Crime Story”

About the “So-Called” Judge’s TRO

Ethics Observations On The President’s “So-Called Judge” Tweet

Esquire’s Ridiculous Book List Smear

Now THIS Is An Unethical Lawyer…In Fact An Unethical ETHICS Lawyer AND A Law Professor! [UPDATED]

Supreme Court Vacancy Ethics: A Competent Choice, An Unethical Announcement, And An Irresponsible Reaction

From The Sally Yates Misinformation Files: Senator Diane Feinstein, Ethics Dunce And Incompetent Elected Official Of the Month

Is this an ethical use of the criminal laws?

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