Law & Law Enforcement

More Revelations Regarding Elizabeth Warren’s Alleged Unauthorized Practice of Law, and Why This Matters

/ Jack Marshall / 36 Comments

Prof Jacobson, on his blog Legal Insurrection, is in line for an Ethics Hero award with his tenacity regarding Elizabeth Warren’s dubious qualifications to engage in the practice of law in  Massachusetts. The overwhelming reaction by his colleagues in legal academia, and mine in the legal ethics community, has been to airily dismiss his arguments as trivial, far-fetched and thinly disguised political warfare, since Jacobson is an unapologetic conservative blogger (and a distinguished one.) Meanwhile, the mainstream media has, I think it is fair to say, completely ignored the story.

Part of this is undoubtedly because of the ignorance of most journalists regarding the importance of the legal ethics rules in question. Part of it is probably due to the accurate assessment by editors and TV news producers that the average American’s brain would switch off right around the time the story mentions Massachusetts Rule of Professional Conduct Rule 5.5 Subsection (c), and will start wondering about how Blair from “The Facts of Life” is going to do on “Survivor.” And part of it, infuriatingly, is because most journalists are willing to forgo the ethical duties of their profession in order  to ensure that a Democrat wins back Ted Kennedy’s Senate seat, and character be damned.

The rude brush off Prof. Jacobson is getting in this wagon-circling exercise is wrong in every way, and does injustice to every person and institution involved, including the Massachusetts legal establishment, the legal profession, ethical lawyers (which, believe it or not, the vast majority of them are), Senator Brown, the U.S. Senate, Massachusetts voters, and the American public. Bar associations across the country regularly punish ordinary lawyers who practice law without proper authorization, and there is a reason: a lawyer who won’t or can’t obey the most basic requirement of the profession—be sure you are practicing law legally—should not be trusted to handle the important transactions and controversies of their clients’ lives. Continue reading →

Indians, Pirates, Greeks, Intellectual Property, and Political Correctness

/ Jack Marshall / 5 Comments

The always understated Robert Newton as Long John Silver. You owe his estate a quarter every time you say “Arg!”

Here I am banging my forehead with the palm of my hand for not realizing that all of the rhetoric flying around about how horrible it is that people in the U.S. can get away with denigrating religions would spark yet another round of political correctness applied to team names and mascots. Perhaps this was inevitable when a vestige of an earlier controversy along these lines invaded the Elizabeth Warren-Sen. Scott Brown race: some of Brown’s staff were seen doing the old Atlanta Braves “tomahawk chop” to mock Professor Warren’s beneficial delusion that she is a bona fide Native American. The political correctness police were all over this one, though the logic, as in a lot of political correctness, was strained: doing a famous fake Indian gesture to mock a fake Indian political candidate is an insult to…real American Indians? Even after the real Cherokees have announced that Warren’s pretensions of affirmative-action worthy Native American status is offensive to them? I’m afraid  those who are empowered by being offended are just too creative for me—I don’t get it.

Nor do I get an earnest essay by  Paul Lukas on the ESPN website, titled “Time to Re-think Native American Imagery.” I am on record as believing that the assault on Native American symbols and imagery for school and team names is just more cynical power-mongering by convenient victims, with the exception of the Washington Redskins, the one team with an undeniably racist name that ought to offend everybody. Still, it is obvious that the political correctness thugs will keep chipping away, counting on their persistence and the eventual bureaucratic shrug (“Oh, what the hell—it’s only a name. Let’s just give them what they want!”) to give them a victory–whereupon they will find something else to be offended about.  Continue reading →

More From Prof. Jacobson On Elizabeth Warren’s Law License

/ Jack Marshall / 32 Comments

Uh, guys? Do you even care what really happened any more?

[ Original post here]

He has read various critiques of his analysis and allegations, and addresses them here. Jacobson also spoke with the much quoted General Counsel of the Mass Board of Bar Overseers, and confirmed that  Michael Fredrickson was not speaking officially or on behalf of the BBO, but rather giving his personal opinion.

For my part, I am dismayed, if not shocked, that the legal establishment, as well as legal ethicists who should know better, are letting their political biases dictate their analysis. It is true that Jacobson is an openly conservative blogger as well as a long-time critic of Warren, but he raises legitimate questions that deserve to be taken at face value, whatever their source. The fact Fredrickson, the BBO General Counsel, felt it necessary to personally defend Warren in the absence of sufficient facts strongly suggests a pro-Warren bias in the disciplinary system, where it really shouldn’t matter who breaks the rules, but whether or not they have. Similarly, over at the Legal Ethics Forum, legal ethics legend Monroe Freedman comments,

“It surprises me that so much commentary has been expended on such a relatively unimportant issue, which apparently was raised in the first place to embarrass a candidate for the Senate in a race that has matters at stake that could affect the future of the country.” Continue reading →

Well, There Goes Elizabeth Warren’s Legal Ethicist Vote! (UPDATED)

/ Jack Marshall / 20 Comments

On the positive side for Prof. Warren, at least she may be able to  truthfully say that in Massachusetts, she’s more Cherokee than lawyer…

As thoroughly researched by Cornell Law Professor ( and conservative blogger) William Jacobson, Democratic Senate candidate Elizabeth Warren practiced law in her Cambridge, Massachusetts office for more than a decade without ever being licensed to practice law in that state. His findings are here. Continue reading →

The Ethics Incompleteness Dilemma and MLB’s Melky Cabrera “Solution”

/ Jack Marshall / 14 Comments

Who cares what Melky wants?

[ When we last visited the messy Melky Cabrera situation, people were clamoring for baseball to rule Cabrera ineligible for the National League batting championship he seemed destined to win because the Giants outfielder had been suspended for the rest of the season for testing positive for steroids. The suspension froze his average, then as now leading the NL, and because he had already amassed sufficient at bats to qualify for the title, this meant that 1) he would benefit from what was supposed to be a punishment and 2) the most prestigious of all baseball season titles would be won by a proven cheater. I explained why taking the title away from Melky would be unethical as well as unwise:

“…There is a very good reason why the Constitution bans ex post facto laws—laws that make something illegal retroactively, so someone can become a criminal for something they did that was legal when they did it. Allowing such rules is an invitation to an abuse of power, culminating, in the worst case scenario, with the modern day equivalents of the Russian or French Revolutions, where people are executed for “crimes” that were not crimes at all. Even cheaters have rights, and one of them is to know what their risks are when they cheat. Cabrera knew that he risked suspension, a loss of millions in income, and permanent harm to his reputation and career. He did not know that he risked not winning a batting championship if he qualified for it, or being put in the stocks, being exiled to Portugal, or having his children subjected to human medical experiments. Should a player suspended for performing enhancing drug use after testing positive be disqualified from winning a batting championship that season? That seems fair and reasonable, but because Major League Baseball didn’t think of it when they were making the rules, it would be unfair for Cabrera to be subjected to such a penalty, which would embody the inherently unfair principle of an ex post facto law. Some people just can’t process this. People just shouldn’t get away with intentional bad conduct, they say. …Such people are unwittingly willing to dismember the bedrock principle of due process, which requires that we know by what rules and laws our conduct society will use to judge our conduct, and that we know what the penalties for violating them will be, or at least have a the opportunity to find these things out. No, of course it’s not fair for Melky Cabrera to win a batting championship by cheating, but a society that allows him to be penalized in ways he could not have anticipated using a rule imposed after the fact is an unfair society, and ethics is ultimately about building a more ethical society.”

Bud Selig, the Commissioner of Baseball who is always as likely to make a terrible decision as a good one, said that he would not take any action on the matter. But that was not the end of the story…]

Yesterday, Major League Baseball announced that Melky Cabrera would not be eligible for the batting title after all. Continue reading →

Cruelty and the Comers: At a Certain Point, Being Nice Just Makes It Worse

/ Jack Marshall / 7 Comments

Meet the Comers

The nauseating news story of the week comes from L.A., where 18-year-old Mitch Comer was seen looking emaciated and confused in a downtown Greyhound bus station. A hundred pounds and 5’3″ tall, the boy seemed lost, and a security guard questioned him. Comer explained that he had just arrived from Georgia, where he had been imprisoned in his parents’ basement since his father pulled him out of an 8th grade class four years ago. Then, on his 18th birthday, they released the boy, and his stepfather took Mitch to the bus station, where they had a touching goodbye

“The story we got was that the stepfather took the kid to the bus depot, said ‘Here’s $200, here’s a list of the homeless shelters in Los Angeles, you’re a man now and don’t come back,'” said LAPD Commander Andrew Smith. This won Paul and Sheila Comer, who live in an affluent Georgia suburb, child abuse and false imprisonment charges as well as a nomination as 2012’s Monstrous Parents of the Year. Continue reading →

The Part of Legal Ethics The Public Will Never, Ever Understand

/ Jack Marshall / 8 Comments

Sen. Brown has the pulse of the public on this issue, and like the public, he’s ignorant.

Especially since politicians like Scott Brown keep making sure that they misunderstand.

In this week’s Massachusetts Senate debate between Sen. Scott Brown and Democratic challenger Elizabeth Warren, Brown slammed the anti-corporate crusader, the self-styled intellectual catalyst for the Occupy Movement, for accepting $250,000 from the Travelers insurance company to help the company deny claims for asbestos poisoning. He said:

“You chose to side with one of the biggest corporations in the United States: Travelers Insurance. When you worked to prohibit people who got asbestos poisoning, and I hope all the asbestos union workers are watching right now. She denied, she helped Travelers deny those benefits for asbestos poisoning, made over $250,000 in an effort to protect big corporations….”

Brown is accurately stating the way most people look at lawyers and what they do. But he is absolutely mistaken. His characterization of what Warren did is incorrect, and his inference of hypocrisy is unfair.  It is all the worse because he is a lawyer himself. If Senator Brown, as a lawyer, doesn’t understand what’s wrong with his accusation, he should. If he does know, then he is undercutting his own profession for political gain. [NOTE: The original version of the post incorrectly stated that Brown was not a lawyer. My thanks to Mass lawyer James Flood III for flagging the error.] Continue reading →

Someone Please Explain to Soledad O’Brien That Attorney General Holder is NOT “Exonerated” Regarding Fast and Furious

/ Jack Marshall / 4 Comments

So much attitude, so little comprehension…

[I apologize to all for not posting anything yesterday. I was handling back-to-back seminars, and had to drive a long distance in-between. by the time I got back home late afternoon, I was too wiped-out to write anything coherent, and that state persisted until I went to bed. I’ll be trying to catch up today.]

CNN’s partisan hack morning anchor Soledad O’Brien was smirking and raising eyebrows to beat the band yesterday morning, as she announced to her audience that the Inspector General’s report on the Justice Department’s deadly botch of its so-called gun-walking scheme, codename Fast and Furious, had “exonerated” Attorney General Eric Holder. I suppose I am giving O’Brien the benefit of a considerable doubt here in assuming that she knows what the word means, but to exonerate is to free from blame or responsibility. The 471 page report does state that there is no evidence that Holder knew about the operation before it had gone horribly wrong, as some Republicans had maintained. On the other hand, it also states that there is no evidence that Holder knew about the operation before it had gone horribly wrong. Continue reading →

Ethics Quiz: You Now Know That Your Neighbors Are Irredeemable Creeps—Now What?

/ Jack Marshall / 23 Comments

“Now that you are all grown up, I want to tell you about the Duffs, and you can decide what to do…”

And you think you have rotten neighbors! Meet the Duffs.

Scott and Roxanne Duff of Leechburg, Pennsylvania found their neighbor’s Golden Retriever and new Rottweiler puppy  wandering in their yard. They called the police, who said to describe the dogs and hand them over to a local animal shelter. They finally returned the Golden to the owners, who lived on the same street, but told the police and the owners that the puppy had run away. Actually, the Duffs were in the process of trying to sell the Rotty on Craig’s List.

The next day, the owner of the dogs called police to say he had heard that the puppy was still at the Duffs’ house, as someone reported seeing it in their yard. Police inquired, only to be told, “Puppy? What puppy?”  Eventually the Dastardly Duffs confessed to selling the dog for $50. The puppy was duly retrieved from a Pittsburgh woman who police said was unaware of the theft, and reunited with its owner. Continue reading →

Prosecutor, Prosecute Thyself!

/ Jack Marshall / 5 Comments

The New York Times revealed this week that more than 300 district attorneys’ offices engage in a practice that is a clear violation of legal ethics and probably illegal as well.  These prosecutors partner with debt collecting agencies, which sent thousands of threatening letters to people across the country who have bounced checks, threatening them with harsh penalties and imprisonment. The letters bear the seal and signature of the local district attorney’s office, which gives them extra persuasive power.The companies also try to sell the check-writers  on budgeting and financial responsibility classes, and if they sign up, the district attorneys’ offices get a commission, in addition to a fee from the firms. It’s all in the interest of more efficient law enforcement, prosecutors argue; the partnerships free them to work on more serious crimes. Continue reading →