Law & Law Enforcement

Unethical Quote Of The Month: Wonkette Writer Rebecca Schoenkopf

/ Jack Marshall / 42 Comments

juanita

I can absolutely see Bill Clinton doing this (then, not now) and not even thinking of it as rape, but thinking of it as dominant, alpha sex. I can see a LOT of men doing that during that time period, before we started telling them in the ’80s, “hey, that is rape, do not do that.” I can see YOUR NICE GRANDPA doing that, back then…I think good men can rape, and be sorry, and not do it again. This is very bad feminism…To sum up, I think Bill Clinton could very well have raped Juanita Broaddrick; that it doesn’t make him an evil man, or irredeemable (I’m Catholic; we’re all forgiven, if we’re sorry, and Broaddrick says Bill Clinton personally called her up to apologize). It doesn’t even necessarily make him a bad feminist — you know, later, once he stops doing that.

   —Rebecca Schoenkopf, writing in the progressive blog Wonkette, talking about Juanita Brodderick’s rape accusation against Bill Clinton

Broaddrick’s claims are back in the news, now that it was noticed that the Hillary Clinton website quietly pulled its statement about the victims of sexual assault having “the right to be believed,” Clinton’s jaw-dropping assertion—given her despicable role in silencing and discrediting Bill’s various victims—that Ethics Alarms discussed when it was first made.

I awoke to multiple rightish blogs, and Ann Althouse, who is dead center, going bonkers over this piece, and rightly so. My initial query is, why only right wing and moderate blogs? Is the left this corrupted by Bill and Hillary? (Okay, that’s rhetorical: the answer is “Damn right they are.”) When did it become progressive to argue that “good men can rape”?

I thought that was a misogynist pig position scrawled on the walls of a troglodyte’s cave.

Good men do NOT rape. Ever. Rape—do I really need to say this?—is signature significance. It was in the 80s, it was in the 60s, it has always been. If you rape (and if you defend rape), you’re not good, you’re not ethical, and you’re not trustworthy. And–do I really have to say THIS?–you’re not just a bad feminist, you’re a phony feminist. (By the by way, you gotcha-masters out there: I am not saying that there is anything wrong with a lawyer defending an accused rapist, like Hillary Clinton did. That is not defending rape itself.)

So why aren’t the indignant, politically correct, feminist, war-on-women-deriding left-leaning web sites, commentators and bloggers collectively retching at the Wonkette post? Explain that to me, someone. Explain why it isn’t evidence that integrity hasn’t died in their skulls, and is stinking up their ethics like a dead rat under the floor-boards. Continue reading →

Was It Ethical For Donald Trump’s Former Lawyer To Trash Him In The Huffington Post?

/ Jack Marshall / 16 Comments

Backstabbed

That’s an easy question.

The answer is maybe, and no.

A couple of weeks ago, a real estate lawyer named Thomas M. Wells provoked a lively debate in the legal ethics community when he authored a Huffington Post piece titled “Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.” I’m proud to say that I flagged the issue for my colleagues first, in part because they unanimously detest Trump, even the tiny minority who aren’t full-blooded Democrats or progressives, and may have been blinded by that bias.

For me, the issue was crystallized by the headline. Wells’ headline (it doesn’t matter if it was really his or the site’s: as a lawyer, he is obligated to make sure that his article doesn’t breach legal ethics rules and principles, and the headline is part of his article) suggested that he had some special knowledge and authority regarding Trump because of what he had learned while representing him decades ago. The ethics rules prohibit lawyers from revealing client confidences, which are usually defined as what a lawyer learns about a client during the course of a representation that the client would not obviously want revealed to the world. Confidences can be revealed by actions, as well as words, and the headline comes very, very close to saying “I know things you don’t about Donald Trump because of what learned when I was his trusted lawyer.” What follows from that may be  a reader’s conclusion that the post reflects secret information. Thus the headline made my legal ethics alarms sound.

Wells has the same right as you or I to register a public opinion about his former (or current, for that matter ) client, as long as the opinion doesn’t interfere with his representation. Lawyers do not give up free speech right by being lawyers. That’s where the “maybe” comes from. There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession. Continue reading →

Now THIS Was Zealous Representation! The Incredible, Unethical, Zealous, Crooked And Courageous Bill Fallon

/ Jack Marshall / 15 Comments

Fallon

I’m giving an ethics seminar for a group of government lawyers this morning. I think I’ll tell them about Bill Fallon.

Bill Fallon (1886-1927) was a very successful New York criminal defense attorney, and a contemporary of Clarence Darrow. He was called “The Great Mouthpiece,” because he represented some of New York’s leading pimps, narcotics dealers, embezzlers, swindlers and gamblers.  One famous client was Arnold Roth, who was the architect of the 1919 Black Sox scandal, bribing eight Chicago White Sox stars to throw the World Series. Another was Nicky Arnstein, the gambler husband of Fanny Brice. That was Omar Shariff playing Nicky in “Funny Girl.”

Fallon often bribed his juries, and got away with it: the one time he was caught and indicted, a jury found him non guilty. He probably bribed that jury, too. Clarence Darrow was proud of the fact that he represented over a hundred men and women facing the death penalty and none were ever executed. Fallon could top that: he represented over 120 homicide defendants, all of them guilty as hell, and not one was convicted.

Dashiell Hammett referred to Fallon in his novel, “Red Harvest,”, when he wrote,

He’s the guy that the joke was wrote about: ‘Is he a criminal lawyer?’ “Yes, very.'”

Continue reading →

Wow: A Whole Unethical TOWN!

/ Jack Marshall / 22 Comments

Upsidedownflag1

In Somers, Iowa, Homer Martz  flew his  U.S. flag upside down  to protest the future placement of an oil pipeline near his home.  He has been charged with desecrating Old Glory under Iowa code 718A , which makes it a misdemeanor punishable by up to 30 days in jail  to “publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state…”

The law, however, is unconstitutional. So said an  Iowa Federal District Court judge in 2004, when he ruled Iowa’s flag desecration laws violated the First Amendment. Martz, a U.S. Army veteran, has told anyone who will listen that the Supreme Court has ruled citizens can burn the American flag, so presumably flying it Bizarro World-style is also okay. He’s right, too. In 1989, the Supreme Court ruled in Texas v. Johnson, 491 U.S. 397 (1989), that prohibitions on desecrating the American flag were unconstitutional.. It reaffirmed the holding in  1990.

Writes an exasperated Jonathan Turley, a Constitutional law expert,  “The town of Somers appears to lack a single lawyer — or a telephone number for a single lawyer — to explain free speech protections to them.”

Is it too much to expect a municipality to absorb a First Amendment right that was settled almost a quarter century ago, and not persecute a veteran for exercising the rights he served to protect and preserve?

Apparently. They could google flag burning and learn that this law is void. Such incompetence in government, at any level, is unconscionable.

Sarcasm-Tainted Observations On The Milwaukee Riots

/ Jack Marshall / 94 Comments

Milwaukee riots

From CNN:

Angry crowds took to the streets in Milwaukee on Saturday night to protest the shooting death of an armed man by a police officer hours earlier.
Protesters burned several stores and threw rocks at police in the city’s north side, leaving one officer injured. Smoke and orange flames filled the night sky. The incident started Saturday afternoon when two officers stopped two people who were in a car in the north side, according to the Milwaukee Police Department.

Shortly after, both car occupants fled on foot as officers pursued them, police said. During the chase, an officer shot one of the two — a 23-year-old man who was armed with a handgun, according to authorities. “He (officer) ordered that individual to drop his gun, the individual did not drop his gun,” Milwaukee Mayor Tom Barrett said. “He had the gun with him and the officer fired several times.”

The man died at the scene. It’s unclear whether the second occupant of the car is in police custody.

First Observation: The dead man, the armed suspect, the man whose death was the spark for the violence, was African-American. CNN’s report doesn’t mention that at all! Why? Is the information unimportant? In fact, it is the most important feature of the incident. It pains me to say it, but riots don’t happen when white citizens are shot by police, whether the victim was armed or not. CNN’s coverage is political correctness and cowardice, not journalism. A critical fact was omitted because it is unwelcome, not because it is superfluous.

This is news manipulation and misrepresentation by omission. This is unethical journalism.

“This is CNN.” Continue reading →

Tales From The “Bias Makes Us Stupid” Files: Is It Possible That The News Media Really Thinks That Donald Trump’s Latest Stupid Blather Is More Newsworthy Than Hillary Trading State Department Favors For Foundation Contributions

/ Jack Marshall / 11 Comments

Media bias

In a statement that is mindblowing for its shameless ethics ignorance, Slate editor Josh Voorhees wrote,

“The latest batch of State Department emails from Hillary Clinton’s tenure, released Tuesday, further highlights the occasionally overlapping interests between the agency and the Clinton Foundation. The messages, which don’t directly involve the Democratic nominee herself, aren’t going to overshadow Donald Trump’s ongoing self-immolation—nor should they—but they are worth a closer look.”

“Nor should they?”

Nor should they?

By what possible set of warped values could the latest inanity from a Presidential candidate who constantly says silly, inarticulate and ultimately meaningless things the second they pop into what we generously call “his brain,” be more worthy of public attention than revelations that the other candidate for President used her position in the State Department for the enrichment of herself and her family?

The former is a well-established idiot free-associator idiotically free-associating with the same results he always gets. Why is this news? It is only news because the news media, knowing well that Trump just utters  jokes, ad-libs, random observations, musings, insults and all sorts of other things that adults never say in public because his confused and disoriented fans enjoy them, intentionally treats them as serious statements of a serious person, when they know very well he is not. The latest of these is the Trump assertion that Obama is “literally” the “founder of ISIS.” It is as newsworthy as if Trump said “Obama is literally a tree frog.” OK, everyone knows this isn’t true, and that Trump is a babbling fool. Got it. Next? Yet this non-story gets absurd attention: like at ABC News, The National Memo, Business Insider, Fox News Insider, Politicus USA, Washington Post, Raw Story, The New Civil Rights Movement,  Daily Kos, The Times of Israel, CBS New York, RT, Balloon Juice, New York Magazine, Guardian, Independent Journal Review, Mother Jones, NBC News,and Mediaite.

Before that, it was media hysteria over Trump’s bizarre “Second Amendment people” crack being a crime, which Popehat neatly debunks here. Ken White’s  opening statement is also enlightening: “Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump.”

Exactly. Which means his continuing to say stuff that mature and responsible people don’t say is not legitimate front page news.

Ah, but it provides an excuse not to explain to the public how stunningly corrupt Hillary is and has been. That is the objective, and an biased and unethical objective it is. Continue reading →

Unethical Headline Of The Month: The Daily Caller

/ Jack Marshall / 4 Comments

Dewey Truman

You can hardly publish a more inaccurate. misleading and dumb headline than this one, appearing on the right-wing news and opinion site, over a report by Kevin Daily about the American Bar Association passing a new addition to its Rule 8.4, the ethics rule that defines ethical misconduct, as follows:

It is professional misconduct for a lawyer to: . . . (g) knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in conduct related to] [in] the practice of law.

Now here is the headline:

Lawyer Lobby Will Now Disbar You For Making An Off Color Remark

And here is how unconscionably misleading and absurd it is:

“Lawyer Lobby”: The American Bar Association is a lawyer’s professional association, and sure, it does some lobbying. However, lobbying is a small, small proportion of its activities. [ Full disclosure: I usually do a couple of ethics seminars for the ABA every year.] Calling it  a lobby suggest that the ABA is primarily political, which it is not. The ABA publishes books, holds educational events, provides indispensable legal assistance to all branches of the profession, facilitates networking, issues critical legal ethics opinions, and many other useful and important services for lawyers.  One reason the ABA doesn’t lobby much is because it represents all kinds of lawyers, and being lawyers, they don’t agree on many issues.Prosecutors, judges and criminal defense attorneys have very different perspectives; so do plaintiffs lawyers and corporate attorneys. “Lawyer Lobby” is an inept and misleading description of the ABA.

“Will Now”: No. Not even close. The proper wording would be “NEVER has, can or will.” The ABA isn’t a bar, and can’t disbar anyone. Any lawyer can belong to the ABA, but the ABA doesn’t have any say in who practices law. The Robert DeNiro “Cape Fear” had an embarrassing line where a lawyer played by Gregory Peck, who should have known better, talks about making an ethics complaint to the ABA to get Nick Nolte’s character “disbarred.” Embarrassing. This part of the headline affirmatively makes Daily Caller readers stupid. Continue reading →

Wait, I’m Confused: I Thought Racial Segregation Was BAD….

/ Jack Marshall / 142 Comments

segregation

Two of these stories in one week—something’s  happening here. What it is ain’t exactly clear, however.

I’m sorry, I start channeling old Sixties songs at times like this.

Not one but two colleges have advocated segregation in their policies this week:

  • Hampshire College explains on its website that it allows students to reside in “identity-based” housing communities, provided they have a “unique social identity” that has “historically experienced oppression,” arguing that such residences “give support to members of our community with social identities that have been historically marginalized in this country, and strive to counter systemic oppression.” The Massachusetts school’s confident  promotion of such living arrangements “arises from our commitment to fostering diverse, socially just, and inclusive communities.” An  informational booklet explains that “identity-based housing is an institutional structure designed to assist members of historically oppressed groups in supporting each other,” and “helps to create an added level of psychological comfort and safety for those who choose to live in those spaces, often providing the foundation for those students to be able to engage fully in the greater community.”

Translation: Black students don’t want to live with whites, but prefer “their own kind,” because whites are viewed as potentially dangerous. And that’s okay! Continue reading →

No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes

/ Jack Marshall / 9 Comments
"A feminist lawyer like Estrich taking on the same clients men do? That's outr...wait, what side am I on again?"

“A feminist lawyer like Estrich taking on the same clients men do? That’s outr…wait, what side am I on again?”

Fired Fox News creator Roger Aisle hired renowned feminist lawyer and teacher Susan Estrich to defend him against the sexual harassment law suit filed by former Fox Blonde Gretchen Carlson. Responding to shock and disappointment among some feminists and others that Estrich would “abandon her principles” to defend such a client, Slate’s feminism reporter Nora Caplan-Bricker authored a post titled “The One Good Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes.”

This is in the category of a supposedly enlightening post that actually makes readers less informed. There only needs to be one Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes, and it is a great reason. Susan Estrich is  a lawyer; lawyers defend people who are sued; lawyers do not have to agree with, support or approve of  a client’s alleged actions requiring such a defense; and there’s is no reason in legal ethics or any other ethical system that argues that a U.S. citizen shouldn’t have access to the best representation possible.

For her part, Estrich has said that she is taking the case because “The individual gets convicted long before he or she has had an opportunity to defend himself. And that’s not fair, whether it is happening to a woman or a man.” That’s the civil law equivalent of the late Johnnie Cochran defending his accepting O.J. as a client by saying, “In this country, everyone has the right to be treated as innocent until found guilty by a jury of his peers.”

Partial translation of both statements: “I’m a lawyer, and I don’t judge my clients. That’s not my job. My job is to help them use the law and legal system for their own purposes and protection, like any other citizen.”

I’ve written about this aspect of lawyers’ vital function in society, one that non-lawyers just cannot seem to grasp, so many times. Here’s a recent post; but maybe this one from 2015 is more on point. That one was about progressive legal icon and Harvard law prof Larry Tribe representing Peabody Energy, the world’s largest private-sector coal company, in a lawsuit that sought to invalidate some EPA regulations adverse to their horrible, evil, earth-destroying–but legal!–business. Tribe was called a traitor to the Cause of turning the U.S. into a wind and solar run nation, and I explained that the attacks on him, like all such attacks, were based on a stubborn lack of comprehension by non-lawyers, writing..

That is what lawyers do, and what they exist to do: represent citizens and companies as they seek to avail themselves of their guaranteed right to use the law to protect their interests. The public and media just don’t get it, and appear to be immune from educating on the subject: what your lawyer personally believes about your cause doesn’t matter. His or her job isn’t to judge you or your purpose. It is to give you the chance to use your rights to due process and the courts to have the law work for you rather than against you, and to have your position, if legal, serious and offered sincerely, represented by the best legal talent available.  Whether or not Tribe personally believes or supports the position being taken by his client is irrelevant to his role, unless he is so unprofessional (as in emotional and unable to overcome his own biases) that he can’t represent a client whose objectives he opposes. Then he would be obligated to refuse the representation. Then he would also be a poor lawyer, and Lawrence Tribe is anything but.

Replace “Larry Tribe” in that paragraph with “Susan Estrich”, and save me some time.

Thanks! Continue reading →

Spectacularly Incompetent Candidate Of The Month: Paul Ryan Challenger Paul Nehlen

/ Jack Marshall / 14 Comments
"This is Paul. Won't you help him? Paul, like millions of other victims across the land, suffers from Constitution Ignorance Syndrome. This dread malady causes its victims to advocate fascist policies and to sound like idiots in their public statements. But there is hope for Paul, and those like him. Please give, and give generously, To "Educate Paul." a non-profit charity. Your gift is tax-deductible, and you will have made the United States a little less stupid with every penny you contribute to this vital cause."

“This is Paul. Won’t you help him? Paul, like millions of other victims across the land, suffers from Constitution Ignorance Syndrome. This dread malady causes its victims to advocate fascist policies and to sound like idiots in their public statements. But there is hope for Paul, and those like him. Please give, and give generously, To Educate Paul a non-profit charity. Your gift is tax-deductible, and you will have made the United States a little less stupid with every penny you contribute to this vital cause.”

This was the guy that Donald Trump was supposedly going to endorse as retribution for Speaker Ryan’s negative comments? It’s comforting, isn’t it, that Trump isn’t that irrational? Ann Coulter is, but Trump isn’t. (At least in this case.)

Paul Nehlen is the arch conservative and certifiable ignoramus who is challenging House Speaker Paul Ryan in Wisconsin’s First Congressional District’s Republican primary. Interviewed last week on “Chicago’s Morning Answer,” Nehlen said that he wonders why we have any Muslims in the country, and suggested that there should be a public debate about tossing Muslims out of the U.S.

Here’s a partial transcript of the relevant comments Nehlen made to hosts Amy Jacobson and Dan Croft: Continue reading →