Law & Law Enforcement

Sally Yates Is Not A Hero. Sally Yates Is An Unethical Lawyer, And “Betrayal” Is Not Too Strong A Word For Her Conduct

/ Jack Marshall / 47 Comments

yates

When you read pundits, journalists, your Angry Left Facebook  friends and even a few misguided lawyer proclaiming Sally Yates a hero, trust me, they either don’t know what they are talking about, or they are have allowed bias to make them stupid.  The Justice Department’s acting Attorney General who was fired minutes ago for refusing to defend President Trump’s Executive Order regarding Middle East immigration was not acting heroically. She was acting as a partisan, political operative, and by doing so, breached her duties an attorney as well as the District of Columbia Rules of Professional Conduct.

And I do know what I am talking about.

Yates was a holdover from the Obama administration, but to an ethical lawyer, that wouldn’t have mattered. Her client hadn’t changed; it is the United States of America. Neither had her professional obligations. Her client was still the government of the United States, and she was still duty bound to defend its laws, as determined by the legislature and the executive, the President of the United States. Under the Rules of Professional Conduct of the jurisdiction in which she practices, the District of Columbia (the Rule is 1.13) Yates had but one ethical option if she determined that her client wanted to engage in conduct she deemed illegal, repugnant, or unwise. Having made her concerns known, she could resign (Rule 1.16) , and quietly. She is duty bound not to harm her client during the representation (Rule 1.3, of which the District has an especially tough version), nor make public statements, or statements she has reason to believe will be made public, that breach her duty of loyalty. In defiance of all of that, tonight Yates stated, in a letter to her department’s lawyers,

“At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.”

The only ethical conclusion of that statement is “therefore I am withdrawing.” Yates said that her decision not to defend the order included questions not only about the order’s lawfulness, but also whether it was a “wise or just” policy. That’s not her job. Lawyers are not permitted to substitute their judgement for their clients.

She was fired, and should have been. She should also be the subject of am ethics inquiry. This has nothing to do with the merits of Trump’s order. Former Harvard professor (and legal ethics prof) Alan Dershowitz, hardly a GOP flack, said tonight that Yates’ decision wasn’t legal, but political. Exactly. As a lawyer, she should have made her position clear from a legal perspective to the President, and then either followed his directive or quit. Her rogue announcement contradicted a finding by the Justice Department’s Office of Legal Counsel, which  approved the executive order “with respect to form and legality.” Nor did her outrageous grandstanding require courage. She was not going to keep her job anyway, so she decided to abuse the trust of the President to encourage partisan Trump-haters to hoot and applaud for an act of legal ethics defiance. (Ethics rules don’t apply when Donald Trump is involved, haven’t you heard?)

Yates is also a hypocrite. The Holder Justice Department, of which she was a part, defended multiple Executive Orders by President Obama that were legally dubious, and other actions as well. That Justice Department was one of the most disgracefully partisan within memory, a neat trick, since we have had a couple of decades of unethically partisan Justice Departments. Yates showed her pedigree tonight. She used her position as an attorney–the highest one there is—for her client, the United States, to undermine her client’s objectives, publicly and to her client’s detriment. The Trump administration has called this a betrayal.

That’s exactly what it is.

(More here..)

The Easy Ethics Verdict On Trump’s Middle East Immigration Suspension

/ Jack Marshall / 39 Comments

immigration-protests

There are three steps to evaluating the ethical nature of any law or government action. The first is what was done. The second is how it was done. The third, and usually most difficult to assess, is why it was done, and whether the measure’s objectives are ethical, including whether the measure can reasonable be expected to accomplish them. . What President Trump’s controversial Executive Order temporarily halting immigration from seven Muslim nations is was covered in the previous post on the subject. Thanks to the fact that our mainstream journalists are incapable of reporting some news events without allowing their biases to distort or confuse the facts, the what was misrepresented to the public, and that misrepresentation is reflected in most discussions of the relevant issues on the web.

How the measure was implemented is an ethics  issue, as this involves competence, responsibility, accountability, diligence and leadership.

The Executive Order was incompetent and irresponsible.

There, that was easy.

It’s nice to be able to post an analysis here that nobody will disagree with. Usually I don’t even bother posting such verdicts.

The sudden order (you can read it here) caused world-wide confusion. Passengers were barred from flights to the United States. Customs and border control officials received notice and instructions in the wee hours of the morning, and many began work without knowing what they were supposed to do.  The order  blindsided Trump’s cabinet—what there is of it so far—including Homeland Security chief John Kelly and, incredibly, “Mad Dog”  Mattis, the new Secretary of Defense, who was not consulted by the White House during the preparation of the order and was not given an opportunity to provide input while the order was being drafted. Mattis did not see a final version of the order until a few hours before President Trump arrived to sign it at the Pentagon. Now he really has reason to be be mad. Continue reading →

The Media’s Unethical Reporting On Trump’s Refugee Pause Order: Does Telling The Whole Story Fairly And Accurately Even Matter To These Hacks Any More? Does Their Trump-Hating Audience Even Care?

/ Jack Marshall / 52 Comments
How many of these protesters have read the Executive Order they are protesting? My guess; none of them.

How many of these protesters have read the Executive Order they are protesting? My guess: none of them.

I didn’t intend this to become Outrageously Unethical Journalism Sunday, but that’s how it is turning out. Not my fault. Don’t blame the messenger.

Here, for the sake of organization and clarity, are some things that you may not have been told about the Trump refugee order that all the Sunday Morning TV shows are and the news sources yesterday were going nuts over. I couldn’t watch all of the former, of course, and some are going on as I write this. Maybe some responsible journalism snuck in, and if it did, please let me know who was responsible, in both senses of the word. So far, however, the mainstream news media is doubling down on its determination not to allow facts to get in the way of its 24-7 effort to demonize President Trump, and my increasingly bats Facebook friends, and yours, I assume, are taking it all as the Utter Truth…

I. Calling the Trump Executive Order a “Muslim Ban” is a lie. Nothing less.

II. In 2011, President Obama ordered a halt to the acceptance of refugees from Iraq for six months (that’s twice the three months of the Trump order yesterday) with no adverse reaction from the news media whatsoever.

III. The seven nations targeted in Trump’s order were not his administration’s collection, but Obama’s, with the addition of Iran.

IV. All of this had to be included in any competent, fair and truthful report about yesterday’s order. As of yesterday, none of it was, at least in major news sources, or the information was buried deep in the reports under hysterical headlines.

Got all that?

It is 100% true. If you were not aware of it before, you are misinformed. If you or your family, friends or acquaintances were on social media proclaiming that the order proves Trump is Hitler, just as you suspected, without knowing the above, you are spreading fake news. If you did this while knowing the above, you are deliberately misrepresenting reality to press your misguided false narrative. Or, in the alternative, you are a rationalizing fool.

Remember, no ethical analysis can proceed without accurately establishing the answer to the question, “What’s going on here?” If one does not have the facts, one cannot perform the analysis. Answering the question incorrectly, as in “What’s going on here is that a xenophobic madman just violated the Constitutional right to the free exercise of religion!!!! ARGGGHHH!” also guarantees a flawed analysis.

You will note that the best sources for establishing the shockingly biased and unethical reportage of this event are conservative sources. This is because this right-biased alternative to the left-biased news media developed specifically for situations like this, in which the truth is deliberately skewed by political bias from the exact same people the public has been taught to trust to keep it informed. As the previous post also demonstrates, that trust is no longer warranted.

Right up front, I want to credit Prof. William Jacobson of Cornell Law School. Every single news source had an obligation to include the information he researched and posted on his blog, but none did.  Now, some details:

1. Read the order itself. Scroll past it if you want to my commentary, but as the professor says, “You should read the actual EO, because most of the media and leftist pundits either have not or are lying if they have.” It is long; I have formatted it for easier reading, but it is long. Nonetheless, the news media have proven beyond, not just a reasonable doubt but the shadow of a doubt that its journalists cannot be trusted to digest this kind of document and relay it truthfully.

Res ipsa loquitur: CNN, from which I obtained the text, headlines the order,

Full text of Trump’s executive order on 7-nation ban, refugee suspension

But there is no ban! That headline is fake news. If you don’t read the order yourself, and yet start ranting on Facebook about the suspension of freedom of religion or some other non-factual nonsense, then you are irresponsible, and you are spreading disinformation. Read it yourself, ascertain what it means if you are uncertain, or shut up about it.

And welcome the era of biased, untrustworthy, partisan journalism.

Here is the EO: Continue reading →

Dentistry Ethics, Arkansas-Style: “Nice Little Dental Practice You Have Here, Dr….Too Bad If Anything Were To Happen To It!

/ Jack Marshall / 20 Comments

Smiling female dentist procedure of teeth cleaning

In 2013, Dr. Ben Burris, a successful Arkansas orthodontist, began offering low-cost teeth cleanings at his 11 offices around the state. This, he says, was a public service on his part, as he knows that preventive care is critical for teeth and that citizens who can’t afford dental insurance, which is expensive, often neglect cleanings. His cleanings cost $99 for adults and $69 for kids, far less than what other dentists charged in the state.

Burris quickly heard from  the Arkansas State Board of Dental Examiners and was told that he was breaking the law.  The Board threatened him with loss of  his license if he didn’t cease his bargain  cleanings. Why?

Well, Arkansas, like some other states, prohibits licensed dental specialists like orthodontists from doing work outside of their specialty even though they are certified to practice general dentistry.  With over a hundred employees out of work, Ben suspended the program.

What’s going on here? Boy, I did a seminar on dental ethics a few years ago: I wish I had another one where I could discuss this. The regulation is nothing more than the profession lobbying the legislature and limiting services to drive up prices. What other possible explanation is there? Cleaning teeth is not the rocket science of dentistry, and any qualified dentist should be completely competent to supervise the task, especially since much of teeth cleaning is handled by hygienists. A licensed dental hygienist is legally qualified to work in a general dentist’s office or that of a specialist without restrictions.  But the orthodontist was venturing outside of the little specialist’s box the state had built for him. Continue reading →

Unethical Quote Of The Week: Boston Mayor Martin J. Walsh

/ Jack Marshall / 73 Comments

sanctuary-cities

“To anyone who feels threatened today, or vulnerable, you are safe in Boston. We will do everything lawful in our powerful to protect you. If necessary, we will use City Hall itself to shelter and protect anyone who’s targeted unjustly.”

—–Boston’s mayor, Martin J. Walsh, announcing defiance to the President Trump’s Executive Order cutting off federal funding to municipalities that did not cooperate with federal immigration officials.

Is Mayor Walsh under the impression that America’s laws protecting its borders and extending its sovereignty over the crucial area of immigration control are the equivalent of the Fugitive Slave Act? It would seem so.

The grandstanding statement by Walsh is the most extreme yet from the 100% wrong and unethical mayors of so-called sanctuary cities, which include major metropolises like Boston, Los Angeles, New York, Los Angeles, Chicago, and smaller cities, many of them college towns, like New Haven; Syracuse; and Austin. There are over 300 in all.

The legal issue is interesting and not at all settled. A 2012 Supreme Court decision held that Congress is not permitted to set conditions on spending to coerce states or localities to participate in federal programs against their will, but other decisions are no so clear. Moreover, when a city actively interferes with the enforcement of the law—not merely not participating in the program, but actively interfering with it the in way the Walsh describes—the federal government should have some effective way of responding. I see another SCOTUS case coming, don’t you? What if Boston decided that it would provide sanctuary for drug dealers, kidnappers, spies and terrorists? Could it do that, too?

Some of the other mayors have been only slightly more moderate. San Francisco’s mayor, Ed Lee, issued a joint statement with the mayor of Oakland, Libby Schaaf, and Mayor Sam Liccardo of San Jose:

“We will not give in to threats, or political grandstanding. Together, the Bay Area will stay true to our values of inclusiveness, compassion and equality, and united against any and all efforts to divide our residents, our cities, and our country.”

Look! Political grandstanding about political grandstanding! Imagine: the President of the United States wants to enforce immigration laws! How dare he? In Chicago, Mayor Rahm Emanuel proclaimed, while ducking bullets presumably,

 “I want to be clear: We’re going to stay a sanctuary city. There is no stranger among us. Whether you’re from Poland or Pakistan, whether you’re from Ireland or India or Israel and whether you’re from Mexico or Moldova, where my grandfather came from, you are welcome in Chicago as you pursue the American dream.”

Having illegal aliens who have committed crimes flee to Chicago might work out, since the murder rate there should thin their ranks considerably. Continue reading →

Is This A Lie, False Assertion, Mistake, Sarcasm, Jumbo, Or A Statement Requiring Investigation? The Case Of The Runaway Pants

/ Jack Marshall / 20 Comments
Where did his pants go, and how?

Where did his pants go, and how?

The statement in question: “They took off running by themselves without me,”  when “they” refers to the speaker’s pants.

It is perhaps germane to the matter that the speaker, 52-year-old Charles William Raulerson, was naked and blasting music from his vehicle in a car wash parking lot. When confronted by police and asked about the reason for the conspicuous absence of his pants, Raulerson allegedly uttered his remarkable explanation. Police ultimately felt it necessary to tase him.

Today I returned to this offering by the most prolific of my crack ethics issues scouts, Fred, after four plus hours with The Ethical Arts Players, in which I expounded on the best ways for an organization to develop a culture that discourages sexual harassment. I was grateful for something completely different, though I will note that if Mr. Raulerson were inside the car wash and a manager there, this episode might qualify as creating a hostile work environment.

Fred suggested that “My pants took off running by themselves without me” is “a lie that is obvious and absurd.” In truth, it is not.

It does not qualify as a Jumbo, because the statement, unlike “Elephant? What Elephant?” does not deny what is undeniable. If his pants were in plain view, immediately disproving Charles’ statement, then it would be a Jumbo. (If, upon having the pointed out, he responded, “Oh! The devils! I hadn’t noticed! They came back!”, we would be returned to square one.)

Nor is the statement a lie. It just isn’t. We cannot say with certainty that it is a lie until we know that Charles doesn’t believe that his pants ran off, and is deliberately trying to deceive. That would make it a lie, but we simply don’t know that. The fact that he’s in public without pants creates a rebuttable presumption that he might, for example, be hallucinating, and really believes that his pants ran away like the dish ran away with the spoon. (Is that nursery rhyme a lie?) Continue reading →

It’s Sexual Harassment Day!

/ Jack Marshall / 37 Comments

biden-harassment

Unfortunately, it will be a while before I get to the next ethics topic. Accompanied by the ProEthics acting troupe, The Ethical Arts Players, I’ll be running not just one but two harassment awareness and avoidance trainings today. Avoiding harassing conduct is only applied ethics after all; it should be easy, but it isn’t.

I’ll be talking about some high profile cases that have been discussed here: the Trump-Billy Bush video, naturally; Ellen Degeneris’s cute sexual harassment of Jake Gyllenhaal on television that nobody complained about because…she’s Ellen! ; and the most relevant of all for the group I’ll be talking to, made up of scientists and academics, this story.

Sexual harassers come in many varieties, and this reminds me that I need to write more about the topic. Here are 15 types that have been identified in the wild so far, but hybrids and mutants are also out there:

  1. The Power Player: A “quid pro quo” harasser: the boss.
  2. The Counselor: Exploiting mentor relationships, abusing tryst
  3. The Leader of the Pack: Leading group embarrassment or marginalization
  4. The Serial Harasser: The Intentional and shameless abuser. With all that has gone on in the law and public eye, they are still out there in force.
  5. The Groper: Hands and Eyes. Yes, that’s Joe Biden…
  6. The Opportunist: Awaiting their chances, and ready to pounce on the trusting, vulnerable and needy
  7. The Bully : Sexual harassment as punishment, manipulation or just for sadistic fun
  8. The Confidante: Building trust to abuse it, that Platonic friend who’s not really platonic.
  9. The Pest: Polite, but not taking “no” for an answer
  10. The Sympathetic Harasser – Exploiting a crisis
  11. The Gallant: Misusing compliment and manners to marginalize, the kind of harassment women often don’t notice. (Barack Obama is one.)
  12. The Nerd: Socially inept individuals who desire the attentions of their targets, and who often don’t see that they do not reciprocate these feelings.
  13. The Stalker: Watching, trailing, bothering, tracking. The most dangerous harasser.
  14. The Blunderer : An accidental or clueless harasser
  15. The Star: The open harasser who’s status prevents him from being called one, or called to account.

 

Ethics Dunce: Secret Service Agent Kerry O’Grady

/ Jack Marshall / 35 Comments

Here is a Facebook post by O’Grady, the special agent in charge of the Secret Service’s Denver district, who oversees coordination with Washington-based advance teams for all Presidential trips to the area:

facebook-secret-service

 

This was in October, and was seen by her Facebook followers including current and former Secret Service agents. In addition to being a declaration of disloyalty, the social media post is  a Hatch Act violation, which among other things prohibits a federal employee from “posting a comment to a blog or a social media site that advocates for or against a partisan political party, candidate for partisan political office,or partisan political group,” and also from using  social media to “distribute, send or forward content that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group.”

Never mind that, though. Continue reading →

Fake Legal Résumé Ethics

/ Jack Marshall / 14 Comments

fake-resume-usaWhat the legal profession will regard as conduct that calls into question a lawyer’s honesty sufficiently to disbar him is a mysterious and unpredictable area. Remember, John Edwards never received as much as a rap on the wrists for his exorbitant lying to hide the fact that he had a mistress and a love child while he was running for President in 2008. Now the Michigan Attorney Discipline Board has been affirmed in its decision to disbar lawyer Ali Zaidi for having false credentials and representations on his professional resumé.

I would expect that to send chills down many a lawyer’s spine, since professional resumés of lawyers and non-lawyers alike are so frequently loaded with puffery that it is almost an “everybody does it” ethical breach. (This is my favorite, the long-time lie of Clinton crony Bill Richardson.) Fortunately for most of them, the Rules of Professional Conduct involving honesty are narrowly interpreted to exclude all but violations of law, breaking official pledges, defaulting on loans and lying under oath, unless they involve the actual practice of law. (Lying to a judge, to a client or in a brief is career suicide.) Does a resumé fudge qualify as the unethical practice of law? Not usually: Ziadi’s must have been something special.

It was. Continue reading →

Ethics Quiz: Punishing The 12-Year-Old Killer

/ Jack Marshall / 80 Comments

debrow

Texas Monthly this month has a troubling profile of Edwin Debrow, who is 37 years old,  has been behind bars since he was 12, and may have to stay there until he is 52. On September 21, 1991, Debrow shot a San Antonio school teacher named Curtis Edwards in the back of the head. Edwards’ body was found sprawled across the front seat of a taxi that he drove part-time at night. Edwin, police determined, had shot Edwards during an attempted robbery. Above is the photo of the 12-year-old in custody.

Texas law, you will not be surprised to learn, allows very harsh punishment for  juvenile offenders.Other states will sometimes try 12-year-olds as adults. Last year’s documentary “Beware the Slenderman” tells the strange story of Anissa Weier and Morgan Geyser, two 12-year-old Wisconsin girls who attempted to stab another 12-year old girl to death in 2014. Under Wisconsin law, Weier and Geyser will be tried as adults for attempted first-degree intentional homicide, and if convicted, they could be sentenced to up to 65 years in state prison.

Your Ethics Alarms Ethics Quiz of the Day is this:

Is it ethical for society to punish children with such long prison sentences, no matter how serious the crime?

Continue reading →