Professions

Ethics Dunce: Trump’s Justice Department

/ Jack Marshall / 3 Comments

The Trump administration last week proposed a rule that would shield Department of Justice lawyers from independent ethics investigations and bar discipline from the states and the District of Columbia. My legal ethics lawyer association’s listserv virtually melted down over it. Almost all of the association’s members are Trump Deranged, but in this case they had just cause to flip out.

The proposed rule would violate a federal law known as the McDade Amendment, which holds government lawyers are still subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. In addition to that, the proposed rule makes no sense: the state bars giveth licenses to practice law, and they obviously can taketh them away.

The Office of Professional Responsibility (OPR) came into being as a compromise measure long ago when politically motivated state bar ethics boards were applying different standards to government lawyers based on partisan interpretations of the ethics rules. OPR has never been as zealous in enforcing ethical standards as local bar associations, and the bars aren’t particularly zealous either. The D.C. bar has had several high-profile spats with OPR over the years, insisting, and rightly so, that it shouldn’t be required to ratify an OPR hall pass for unethical conduct.

I assume, and hope, that the clearly impractical rule change is DOA, and like so many other proposals and floated options from the Trump Administration, it is more of a negotiating ploy than a serious proposal. The truth is that virtually all of the bar associations are dominated by progressives and Democrats, and consider a lawyer being willing to work for the Trump Administration as strong evidence of inherently unethical character. It is also true, as I have discovered to my horror over the past year, that many of the bar associations are untrustworthy and corrupt. This was revealed to me in part when the D.C. bar, whose legal ethics CLE I had been prominently and successfully teaching for three decades, fired me after I tried to open a legal ethics can of worms—the bar’s unique non-lawyer partner option—that would reveal a gross and wriggling failure on the bar’s part to police its members, resulting in nation-wide fraud and harm to tort victims.

A New York Times op-ed about the unethical proposed rule deceptively (and risibly) asserts,

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Once Again, “The View” Raises the Issue of Whether There Needs to Be a “Stupidity Rule” For Professions

/ Jack Marshall / 6 Comments

Back in 2024, I posited, only half in jest, that “The View’s” resident lawyer on the all-female idiot panel, Sunny Hostin, had made such a stupid assertion on the program that it should trigger legal ethics Rule 8.3, which mandates that a lawyer who has knowledge of another lawyer’s conduct that substantially calls into question that individual’s fitness to practice law must—must—report that unfit lawyer to bar authorities for professional discipline. Hostin had surmised that “climate change” causes earthquakes and eclipses, and stated this cretinous conclusion on national television, on an ABC News program, which is what “The View” purports to be.

I wrote in part (and in disgust):

“[S]ome people with law licenses are demonstrably too stupid to be trusted by clients. Hostin is screaming proof of the validity of this conclusion, yet there is nothing in the disciplinary rules governing the minimal ethics requirements of lawyers that mentions basic, personal intellectual competence as a mandatory component of professional, legal competence.

There should be. One would think that the challenge of graduating from law school and passing the bar exam would be sufficient to ensure that a lawyer is at least smart enough to come in out of the rain, but in extreme cases like Sunny, one would be wrong….believing that climate change causes solar eclipses is signature significance. You can’t come to such an idiotic conclusion and not be an idiot. This delusion [shows] a crippling deficit in critical thinking skills. One cannot be a trustworthy lawyer without minimal critical thinking skills. When a lawyer demonstrates such a deficit beyond a shadow of a doubt, that ought to be considered a legitimate reason for disbarment.”

Remember, professionals are special members of society whose important roles require that they be trustworthy. True professionals include the clergy, doctors, lawyers, judges, law enforcement officials, military leaders, public servants, accountants, psychiatrists, and teachers, and though it sounds absurd today, journalists. Really, really stupid people are not trustworthy, in fact it is dangerous to trust them. If they are sufficiently stupid, they should not hold any of those societal roles and positions.

Ethics Alarms, as those of you who have read the commenting rules here know, has among its provisions that the moderator, that’s me, may at his discretion ban a commenter who has demonstrated to my dissatisfaction that said commenter is too intellectually deficient to contribute substantively to the discussions. I believe that I have only had to invoke it twice.

Which brings me back to “The View”…

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The Founders Agree: Of Course Operation Epic Fury Is Legal

/ Jack Marshall / 17 Comments

Rod Martin is a conservative pundit; he also, unlike most pundits, has actually accomplished things in his life other than producing hot air. He was the founder and CEO of Martin Capital and helped start PayPal, and can justly call himself a futurist and tech entrepreneur. Now he writes a substack when the spirit moves him, and he just authored a marvelous Shut-Up-You-Don’t-Know-What-You’re Talking-About historical review for the Axis knee-jerks and my Trump Deranged Facebook Friends (and, I suspect, yours) who are calling the President’s action in Iran “illegal.”

They should be embarrassed, but won’t be; I am embarrassed. As someone who prides himself on being informed reagarding American Presidential history, I knew Trump’s latest FAFO move was supported by precedent, but only looked as far back as Barack Obama’s administration, more for its ethics estoppel value to all of the President’s current critics who were silent as Obama bombed Libya without Congressional authorization and gleefully droned-to-death American citizens abroad because he deemed them a threat to the Republic.

I’m a moron. There is a much stronger case to be made, indeed an irrefutable one, that President Trump was well within his powers and the boundaries of the Constitution. As I read Martin’s essay, once again, as has been happening frequently of late, the image of my beloved but diabolical Jack Russell Terrier Dickens came to mind, madly shaking something in my face to prove a point. I’m Dickens, and the Trump Deranged are my face.

Martin begins by pointing out that the base of the Iwo Jima Memorial, just a few miles from my home, contains more than a giant iconic statue depicting a critical moment in World War II. It also includes a list of America’s foreign conflicts. “Many are declared wars or battles in them; many are not,” he writes. “But one sticks out in my mind during the current debate over the constitutionality of Donald Trump’s military actions: the French Naval War of 1798-1800, more commonly known as “the Undeclared Naval War with France.”

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Catching Up With “The Lincoln Lawyer” Part 2

/ Jack Marshall / 1 Comment

In this limited series of as yet undetermined length, I’ll be examining the legal ethics issues raised by the Netflix limited series of as yet undetermined length based on the Michael Connelly character, fed through the filter of the ubiquitous David Kelley.

I’m not going in strict order chronological order because why should I? This issue is a rich one, and arrived in Season 3 of the show. A prostitute whom Mickey had advised and had testified to help a client in Season 2 turned up dead, and he agreed to represent the man, her cyber pimp, accused of killing her before he realized she was the victim. Mickey liked and sympathized with the victim; whether he was officially her lawyer is a bit vague, but she seemed to think of him that way.

Can a lawyer represent a defendant accused of killing a lawyer’s client? Sure enough, this has happened; there’s even a Supreme Court case about it.

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Catching Up With “The Lincoln Lawyer” Part 1

/ Jack Marshall / 14 Comments

Netflix’s “The Lincoln Lawyer” series has dropped its fourth season. This gave me an excuse to revisit the first three seasons of the legal show, based on the Matthew McConaughey film, itself based on Michael Connelly novels, about sketchy a Los Angeles criminal defense attorney whose office usthe backseat of a chauffeur-driven Lincoln town car. The series—it’s Netflix after all—has DEI’ed the movie, with Micky Haller, the central character, being transformed into a Mexican-American who speaks Spanish frequently (though not as often as Bad Bunny) and is played by Manuel Garcia-Rulfo, a Mexican actor who only plays Hispanic roles when he appears in U.S. movies and TV shows. He was, for example, the gratuitous Hispanic father in the ostentatiously “diverse” “Jurassic World” franchise addition last year (the worst of them all, in my opinion). That is not to say he isn’t an appealing, intelligent, entertaining leading man in “The Lincoln Lawyer.”

The show makes a point of highlighting legal ethics dilemmas, as Mickey habitually tightropes along ethical lines to zealously represent his clients. A fellow legal ethicist thinks the show is unusually good in this realm. I’m not quite so enthusiastic. I will examine some of the legal ethics dilemmas that surfaced in the first two seasons over the next couple days.

Today’s featured problem:

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Ethics Quote of the Week: Stanford Student Elsa Johnson

/ Jack Marshall / 3 Comments

“This should be the real message of the story: Stanford must reform its disability accommodation system so it is fair, helping only those who need it most. At the same time, the university should encourage students to live up to the greatest human attributes: hard work, honesty, perseverance and excellence. As things stand, it’s teaching us the worst lesson of all: cheaters always prosper while the good get punished.”

—Elsa Johnson, the Stanford student who wrote about how students there contrive “disabilities” to gain advantageous accommodations from the school.

This was the conclusion of “I exposed Stanford’s disability racket. I was stunned by the reaction on campus.” Ethics Alarms discussed Johnson’s original essay here. In her follow-up, she claims that the reaction to her “whistle-blowing” article (my term, not hers) were generally positive, that her fellow students were glad she exposed a culture on campus that encouraged students to cheat. She wrote in part,

“I braced for the worst — but when the story broke, I was floored.The piece did go viral, but the response was overwhelmingly positive. I was flooded with messages of support. “Was that your article on disability at Stanford?” a recent grad from Stanford’s Business School texted me. “THANK YOU for writing it and the courage to include your own story among the examples. I came straight from the army to Stanford and was initially deeply uncomfortable with the ‘gaming’ of the system I saw, for disabilities and other issues. And by the time I graduated two years later, I found myself playing some of those games. I didn’t know if I had lost a part of myself and my integrity, or if this was simply the real world I had to navigate.”

I am considerably cheered by that response, if indeed it was the general response and not one cherry-picked to make an interesting follow-up. I confess that I have my doubts.

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I Am Increasingly Reaching The Conclusion That We Can’t Trust Anyone, “Experts,” Researchers and Scientists Included: My Dan Ariely Disillusionment

/ Jack Marshall / 28 Comments

We’ve had some interesting discussions here about “experts” here of late, notably this post. I am rapidly reaching the point where anyone who appeals to authority to justify his or her position, particularly if the authority is a study, a report, an “expert” or a scientist, immediately inspires my skepticism and even suspicion. Now what?

Once again, Duke professor and researcher Dan Ariely is in the news, and not in a good way. Ariely, professor of business administration in the Fuqua School of Business is named 636 times in the more than 3 million additional Epstein files released on January 30. He may be innocent of any wrong-doing and he and Epstein may have just played in a Fantasy Baseball league together, but the problem this creates for me is that I have been using Ariely’s work as authority in my ethics seminars for as long as I can remember.

For more than a decade, I told incoming members of the D.C. Bar as part of their mandatory ethics training that such sessions as mine were essential to making their ethics alarms ring. To support that thesis, I related the finding of research performed by Dan Ariely when he was at M.I.T. Ariely created an experiment that was the most publicized part of his best-selling book “Predictably Irrational,” giving Harvard Business School students a test that had an obvious way to cheat built into it and offering small rewarde for the students who got the highest scores. He tracked how many students, with that (small) incentive to be unethical, cheated. He also varied the experiment by asking some students to do simple tasks before they took the test: name five baseball teams, or state capitals, or U.S. Presidents.

None of these pre-test questions had any effect on the students’ likelihood of cheating, except for one question, which had a dramatic effect.  He discovered that students who were asked to recite a few of the Ten Commandments, unlike any of the other groups, never cheated at all. Never. None of them. Ariely told an NPR interviewer that he had periodically repeated the experiment elsewhere, with the same results. No individual who was asked to search his memory for a few of the Ten Commandments has ever cheated on Ariely’s test, though the percentage of cheaters among the rest of the testees is consistently in double figures. This result has held true, he said, regardless of the individual’s faith, ethnic background, or even whether they could name one Commandment correctly.

The classic moral rules, he concluded, reminded the students to consider right and wrong. It wasn’t the content of the Commandments that affected them, but what they represent: being good, or one culture’s formula for doing good. The phenomenon is called priming, and Ariely’s research eventually made me decide to start “The Ethics Scoreboard” and later this ethics blog.

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On The Limitations Of Expertise

/ Jack Marshall / 5 Comments

Guest Column by Sarah B.

[From your Host: This excellent essay arrived on an Open Forum, and as I sometimes do, has been elevated from Comment of the Day status to a Guest Column. I’ll even forgive Sarah for making me look bad in comparison to such thoughtful, eloquent and perceptive work.]

***

“The embarrassment is that chemistry was treated as a mere technicality rather than the foundation of the entire conclusion. The embarrassment is that skepticism—real skepticism, the disciplined refusal to accept claims without robust evidence—was framed as denial rather than diligence.”

This is, in my opinion, the money quote from The Brain, Microplastics, and the Collapse of Scientific Restraint. 

This particular article discusses the extraordinary claim that our brains contain a huge amount of microplastics.  The problem with this claim is that the study has a fatal methodological flaw.  The study relies on spectroscopy and detecting signatures of chemicals to determine a sample’s composition.  However, the fats in the brain break down into similar compounds as polyethylene, which means without further differentiation methods, there is no way to tell if the “microplastics” the study detected were actually just normal lipids found in the brain.  The whole article is worth reading, as it does an excellent job of explaining the issue. 

I recently saw a post on Facebook that decried the idea that experts could be challenged by some novice watching a few YouTube Videos and reading a few scientific papers.  This led to a long discussion in the comments, which was unfortunately extremely one-sided.  Most everyone agreed that trying to correct an expert in their field was utter hubris.

“Take something you are good at, like maybe changing transmissions.  Imagine someone who has watched a few YouTube videos comes up and tells you that you are doing it all wrong.  How would you respond?”

The main problem with this is that, in terms of changing a transmission, we can obviously see who is right and who is wrong.  The car will run, or the car will not.  Indeed, if you truly are an expert in changing transmissions, you can step up and, in simple terms, explain why your process is the correct one, what is wrong with the YouTube watcher’s process, and even perhaps teach your skeptic how to do it correctly. 

With any field of expertise, we have to remember that experts are people too, and all humans have flaws.  Experts can be tempted by money, power, prestige, and politics.  There are also limitations that even experts struggle to overcome.  For example, in many branches of research, there are serious problems (often ethical in nature) in creating a good control group. 

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Ethics Alarms #&%@ed-Up. Again. Abject Apology Follows…

/ Jack Marshall / 7 Comments

Why not start off the day with a humiliating confession? Nothing else has been working lately…

Back in May, I wrote about that ad above in which a goofy pitchman for the Allied Injury Group nicked or squashed a couple of legal ethics rules in the course of exactly the kind of lawyer advertising the profession was afraid would result when it had to eliminate the unconstitutional ban on the practice. It was a harsh post and should have been. I wrote in part,

“…the spokesperson calling himself “Your Favorite Attorney” is an actor, indeed a stand-up comic named Shaun Jones. All of the jurisdictions prohibit lawyer advertising in any form that is misleading or that includes false information. A sole practitioner can’t call her firm “X & Associates,” for example, if she’s the only lawyer in the firm. Putting a non-lawyer in front of a camera and calling having him call himself an attorney is an undeniable violation, and an intentional one… Jones also says that if the client doesn’t make money, “I” don’t make money. That is deceit. The firm will argue that the actor is only saying that if the firm doesn’t win its cases, the actor won’t get paid. But his statement is intended to refer to contingent fees for attorneys, and he isn’t one. “

Having done my duty to flag these hacks, I then proceeded to put the wrong law firm name in the headline! I have a typo and proofreading problem, as even casual visitors here know; I’ve gotten better, but the fact that these posts are usually written in fits and starts while I try to complete actual income-relating work [Thank you, by the way, to those of you who sent me generous contributions or gifts over the holidays, or kind words of encouragement that I appreciated just as much.] means that I sometimes miss glaring errors. That’s not an excuse. But it’s true.

This one was a doozy, made worse by my obstinate habit of proofing everything but the headlines. And so it was that The Allied Law Group, a distinguished and, based on my research, an impeccably professional and trustworthy firm that specializes in civil appellate law, media and First Amendment law, open government laws, regulatory litigation, legislation and general litigation, but not personal injury law, was unjustly and wrongly impugned.

That firm’s clients include lawyers, public interest groups, trade associations and media organizations. Their website is impressive and professional; I would even say, as one who is often asked to review the content of lawyer websites for ethics violations, exemplary.

So this was a really bad mistake on my part, and I could not be more sorry, embarrassed, contrite and remorseful. I apologize to the firm, its lawyers, its staff and clients. The post has been corrected, and let us never speak of it again.

I want to note that the firm attorney I spoke with was thoroughly civil, respectful, and, frankly, nicer than I might have been in a similar situation. She did not threaten me, as many lawyers are wont to do. She did inform me of the undeserved abuse that her firm has been getting—even death threats!—from people who have confused the firm with Allied Injury Group. People want to kill unethical lawyers now? I did not see that coming. I do have a hard time believing that anyone inclined to send death threats reads an ethics blog, but never mind: I accept responsibility for contributing to the confusion.

The Allied Law Group’s representative also didn’t make any demands during our conversation, because before she finished her second sentence I said: “I’ll fix that post immediately.” Nor did not instruct me to post this: I told her that I would compose an apology and get it up as soon as possible, because that’s my policy when I screw up.

Finally, I want to thank commenter Ric, who sent in a comment flagging the error last November. As Herman Kahn said, unlikely disasters occur when there’s a 1% confluence of bad management and bad luck. I try to read all reader comments. I missed that one.

Thus endeth the grovel.

Now to proof read the headline…

It’s “Unprofessional Nurse Day” on Ethics Alarms! And When You Combine Unprofessional Nurses With Trump Derangement, You Get…

/ Jack Marshall / 22 Comments

..this despicable individual, ex-nurse Alexis ‘Lexie’ Lawler.

Lexie was canned by Baptist Health Boca Raton Regional Hospital after announcing in a TikTok video, “As a labor and delivery nurse, it gives me great joy to wish Karoline Leavitt a fourth-degree tear. I hope that you fucking rip from bow to stern and never shit normally again, you cunt.” 

Leavitt, President Trump’s extremely competent paid liar, announced last month that she was expecting her second child. The injury Lawler wished on Leavitt requires immediate surgery and can cause long-term chronic pain.  The vicious and hateful post received many “likes” and “loves,” because these are really irredeemable people.

The Daily Mail says that it “led supporters of President Donald Trump to call for her firing.” Wait: wouldn’t all decent people call for the firing of a “labor and delivery nurse” who made such a statement? This is one of those stories I want to shake in the faces of my Trump Deranged Facebook friends. much like Dickens, my late, great Jack Russell Terrier, killing a rat.

What monsters they consort with! What monsters they have become….

A spokesperson for Baptist Health confirmed to that this unprofessional ethics villain is no longer employed at the Boca Raton hospital.

But she does have a professional hairdo!

“The comments made in a social media video by a nurse at one of our facilities do not reflect our values or the standards we expect of healthcare professionals,” the hospital’s spokesperson said. “Following a prompt review, the individual is no longer employed by our health system.”

Please note: these are the kinds of people who polls say will prevail in this year’s elections. Gina?

But there needs to be a a strong, competent, effective response beyond just being afraid.

[Note: I want to apologize to Gina Davis, whose clip from “The Fly” is one of the most frequently used on Ethics Alarms, yet I somehow hadn’t included it in the Hollywood Ethics Clip archive until just now. The number of clips is up to 45. Check it out here.]