Category Archives: Professions

Oh, NO! ANOTHER Ethics Story That I Don’t Understand At All! EVERYTHING IS SEEMINGLY SPINNING OUT OF CONTROL!

Emory University Hospital in Georgia had scheduled kidney transplant surgery for a 2-year-old boy to take place on October 3. The organ donor, however, the boy’s father, Anthony Dickerson, violated his parole. Hospital administrators then postponed the surgery until Dickerson could comply with parole requirements for an additional three months.

The boy’s mother, Carmella Burgess, received a letter from the hospital that said Dickerson would be re-evaluated as a donor in January after it receives documentation of his success.

What warped reasoning is going into this decision? The boy’s health care needs are the same. The kidney being donated is the same. The father is still a willing donor. Why would the hospital care whether Dickerson had violated parole or not? Why would anything Dickerson did change the hospital’s medical duty to his son, or warrant postponing life and death surgery? So the father was discovered eating puppies. So he was found to be a convert to Isis. So he is caught saying nice things about Harvey Weinstein, Donald Trump or Satan. In fact, Dickerson violated parole in September and was charged with possession of a gun. So what?

“They’re making this about dad,” Burgess told the Atlanta Journal-Constitution. “It’s not about dad. It’s about our son.”

That seems to be an accurate analysis.

If anyone can explain how this can possibly be ethical conduct by the hospital, please do.

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Morning Ethics Warm-Up, 10/18/2017: Welcome To My World! Special Legal Follies Edition

Good Morning!

1  Oh, let’s begin the day with Roy Moore, the former Alabama judge and present wacko whom Alabama Republicans voted to represent the GOP in the 2018 U.S. Senate election, thus proving that there are a lot of deplorables in the state. As was completely predictable given his record, Moore recently told his drooling followers (after being introduced by Abraham Hamilton, Alexander Lincoln being unavailable),

“Somebody should be talking to the Supreme Court of the United States and say, ‘What gives them a right to declare that two men can get married?. . . Tell the Congress: Impeach these justices that put themselves above the Constitution. They’re judicial supremists and they should be taken off the bench.”

Comments Jonathan Turley,

So Moore believes that he should not have been removed from the bench for putting his personal religious beliefs above the Constitution, but justices should be removed if they interpretation the Constitution in a way that contradicts his religious beliefs.  This, he insisted, would ‘solve the problem….such a view would violate not just fundamental principles of judicial review but it would violate the impeachment clause.  As the last lead counsel in a judicial impeachment case (in defense of Judge Thomas Porteous), Moore’s view is deeply troubling.  As I have previously written, the Good Behavior Clause of Article III was designed to protect the independence of the judiciary and insulate it from political pressures.  It was meant as a guarantee of life tenure against precisely the type of threat that Moore is endorsing. 

But it’s pointless to make genuine legal and historical arguments against someone like Moore. He’s a theocrat, a fanatic, a bigot and a demagogue. The Republican Party should endorse his opposition and campaign against Moore. This fiasco is their fault, and someone like Moore should be kept out Congress at all costs.

2. Now to someone who is, incredible as it seems, somewhat less ridiculous, this gentleman, Christopher Wilson…

 

No, that’s not a botched tattoo on his forehead: the blurry words are “fuck” and “sluts”, making the whole, eloquent message, “I’m a porn star. I fuck teen sluts.” This roughly translates into  “Look at me! I’m an idiot!”  The newspapers that refused to print the blurred words (the police had the mugshot altered) that are essential to the story, meanwhile, are telling us, “We don’t understand our profession.” The story is incomprehensible if the actual words aren’t clear, literally or figuratively.  Fox News and the NY Post, for example, say, “The Cincinnati man has the words “I’m a pornstar” tattooed on his forehead” and “another vulgar message” tattooed below.” Since the issue is whether the message on his FACE is going to prejudice the jury in his trial for sexual assault, this is juvenile coverage omitting key information to avoid “giving offense.”

Ethics Alarms to the news media: Grow up.

Turley (again…he loves the tattoo stories) writes,

“The court will be left with a question of whether the tattoo is too prejudicial or whether it is unavoidable as a personal choice of the defendant….Yet, these tattoos contain an admission to the crime at issue in the trial.  In the end, a judge could legitimately conclude that this falls into the category as bad choices bringing even worse consequences.”

What? First, the defendant is not charged with fucking teen sluts while acting as a porn star. That conduct could well be consensual and legal.  Turley is also wrong that the judge could “legitimately” allow the jury to see his message. In both cases involving a defendant’s prejudicial tattoos, the judges agreed that they had to be made invisible, in one case using make-up… Continue reading

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Wait, WHAT? I Don’t Understand This Case At All: The Louisiana Lawyer’s Betrayal

Robert McCoy (above), facing trial for a triple murder in Louisiana, told his lawyer, Larry English, that he was innocent. Someone else had killed the victims, he insisted. English, however, knew better. He wasn’t buying any of it.

“I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English stated in a sworn statement. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so….I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

English’s theory was that in the state’s two-phase trail system, he would lose credibility with the jury if he insisted McCoy was wrongly charged in the face of overwhelming evidence He wanted to have the trust of the jurors in the second phase, when he would have to argue that they should spare Mr. McCoy’s life.

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself—So would I— but Judge Jeff Cox refused to let English off the case. So, as promised, English told the jury during his opening statement that his client was a triple murderer. McCoy objected in court, protesting, “I did not murder my family, your honor ! I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

The objection was over-ruled.  McCoy’s lawyer, the judge apparently believed, knew better than his client what his client’s best interests were.

He didn’t though. McCoy was convicted and sentenced to death despite all of that supposed good will, credibility and trust English had built up by throwing his own client under the criminal justice bus.  The victim of this Bizarro World representation appealed the conviction to the Louisiana Supreme Court, saying his lawyer had turned on him. The court ruled against him,  holding that

“Given the circumstances of this crime and the overwhelming evidence incriminating the defendant admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

Now the United States Supreme Court is going to consider the case, McCoy v. Louisiana, and the question of whether a lawyer who disregards a client’s explicit instruction to plead not guilty has breached the Constitutional right to counsel.

I am stunned.  What question? Apparently this is a thing in Louisiana. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” Louisiana’s lawyers  wrote in a brief urging the court to pass on the case. Since 2000, the Louisiana Supreme Court has allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

Good grief. Continue reading

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Filed under Ethics Alarms Award Nominee, Law & Law Enforcement, Professions, Rights

Morning Ethics Warm-Up, 10/16/2017: SNL, NFL, Collusion, Gossip, And Bribery

Good Morning.

1 Why am I only now getting around to today’s Warm-Up? It is because I spent more than 8 hours over the weekend, and three hours this morning, writing a Motion to Dismiss in response to a ridiculous, retaliatory, vindictive lawsuit by a pro se litigant with a grudge. The complaint has no legal cites, because no legal authority supports its claims. I, however, have to cite cases to show why the Complaint is completely without merit. Since the Complaint is a brain-rotting 18 pages, I have to carefully redact it to have a prayer of meeting the 20 page limit for motions. Even then, there is no guarantee that this won’t drag on for months.

No penalty will be exacted on the plaintiff for filing this spurious and groundless law suit. To do so would chill the right of citizens to seek justice and redress for wrongs through the courts. Thus the underlying objective of the suit will be accomplished: to force me to expend time and effort that I have far better uses for. Ethics Alarms readers are affected, my family is effected, my work is affected, my enjoyment of life is affected, and, of course, the system and the taxpayers who fund it are affected. This is an abuse of the system, but one that cannot and must not be impeded.

2. Does anyone have a theory about why the bribery trial of Democratic Senator Bob Menendez has received minimal mainstream media coverage that does not show bias? When Abscam was going on, the trials of the various members of Congress caught in a bribery sting were front page, Evening News headlines for weeks. The only U.S. Senator tried (and convicted) was a Democrat Harrison Williams. Has the news media become that much more partisan since the Reagan Administration?

3. As expected, exiled NFL kneeler (first) and quarterback (second) Colin Kaepernick has filed a grievance accusing NFL teams of colluding to prevent him from getting a contract with any team this season.

We’ve been here before. This is the Barry Bonds scenario all over again. Bonds, the definitive ethics corrupter in Major League Baseball and a flagrant steroid cheat and liar, was not resigned by the San Francisco Giants after the 2007 season. He was 42, but his season had been productive, with a 1.o45 OPS, close to the best in the game. I wrote an article for The Hardball Times arguing that Bonds would not be signed, because doing so would permanently scar any team that accepted him, injure the team’s culture, corrupt its young players, and wound baseball itself. The invective hurled at me and my article by sportswriters and readers was unrelenting. ESPN’s Keith Law said that my essay made anyone who read it stupid. MLB’s satellite channel’s hosts laughed about the idea that teams cared about such matters as integrity. Bonds, however, was not signed, and never played again. While he and his defenders claimed collusion among the owners, no evidence appeared. Continue reading

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That Settles It, If It Wasn’t Obvious Already: Lisa Bloom Is An Unethical Hack (But I Could Be Wrong…)

Now, don’t sue me, Lisa! Remember what it says in the “About” section (above), this is all just my opinion. When I say you are a stunningly unethical lawyer, that’s just my analysis; it’s true I know something about legal ethics, teaching and consulting on it full time, but I can’t assert my opinion as fact. I can’t read your mind or slog through your soul. I don’t know what a bar disciplinary committee would decide, though I know this is a famously gray area in legal ethics, so unethical conduct is unlikely to be punished.  And when I say you’re a hack, remember that “hack” isn’t a description subject to objective proof, any more than, say, “asshole.” Perhaps your definition of “hack’ is different from mine. In fact, I’m sure it is.

That said, your conduct is a professional disgrace. I think. Who knows? I may be wrong.

In an interview with BuzzFeed News published this weekend, Bloom, speaking of her recently terminated representation of Harvey Weinstein, said

“I can see that my just being associated with this was a mistake. All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

Bloom added that she will no longer represent men accused of sexual misconduct, “even those who convincingly tell me they are innocent….I will just make the best choices I can out of every situation. I have clearly not been successful. I think anybody who does big bold things fails. And I definitely failed on this one.”

What Bloom has failed at is called “being a trustworthy and competent lawyer.”

The next day, during an appearance on Good Morning America, Bloom even more explicitly threw her former client under the metaphorical bus:

“It’s gross, yeah,” Bloom told GMA. “I’m working with a guy who has behaved badly over the years, who is genuinely remorseful, who says, you know, ‘I have caused a lot of pain.’”

Did Bloom actually graduate from law school, or did she just apprentice in her mother’s office (she is Gloria Allred’s daughter) and somehow get an honorary license? Did she never learn about the a lawyer’s duties of loyalty and confidentiality? She obviously didn’t know about conflicts of interest, since she represented Weinstein while agreeing to let him turn her book into a TV miniseries.

Ethics Alarms has previously criticized lawyers who have publicly undermined their former clients. The most recent example  was last year, when a former Trump lawyer used his experiences while representing the future Presidential candidate decades earlier to write a scathing mid-campaign attack on his former client in the Huffington Post. I wrote,

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

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Here’s Something The News Media Hasn’t Explained Regarding The Weinstein Scandal: Those Victim Confidentiality Agreements Are Unethical, And Maybe Illegal

Rose McGowan, the new Sexual Harassment Fury on social media, says she was raped by Weinstein and had to accept a $100,000 settlement with a confidentiality agreement as a condition of the deal. That means that if she subsequently told her story and accused Weinstein, she would be liable for damages, and would have to return the money. Right?

Not exactly. Most of the accounts in this sordid series of events make it seem like confidentiality agreements are iron clad and enforceable. Often they are neither. McGowan’s almost certainly wasn’t.

Debra Katz, an attorney specializing in sexual harassment law suits, recently explained that if employees or former employees came forward with information about Weinstein participating in criminal misconduct, their non-disclosure agreements or confidentiality agreements would probably be unenforceable, saying,

“These kind of very broad NDAs or confidentiality agreements typically violate public policy. Employees have to have the legal ability to discuss any concerns about unlawful behavior in the workplace … These broad provisions that would effectively silo people, make them feel like they can’t speak about this, are simply an instrument to put fear in people.”

My position has always been that lawyers who construct such agreements, knowing that they are unenforceable, are committing sanctionable ethical misconduct. The lawyer for the employee being silenced, moreover, has an obligation to let the client know that the requirement is unconscionable. Of course, it’s the client’s decision whether she wants to take the money.  It is also unethical to make an agreement you have no intention of honoring. Continue reading

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Morning Ethics Warm-Up, 10/13/17: All Aboard The Weinstein Ethics Train Wreck!

Good Morning, Hollywood!

I’m sorry to bombard you with this ugly topic again first thing, but I’d like to stop having to think about it as soon as possible.

1 My sister, a committed Democrat who naturally prefers that damning stories about her favorite politicians go down the memory hole as soon as possible, complained yesterday that she didn’t understand why Harvey’s demise was such a long-running story. He’s a pig, we’ve seen it before, he’s fired, big deal, she protested. There are more important things going on.

There are undoubtedly more important things going on, but from an ethics perspective, the importance of the Harvey Weinstein Ethics Train Wreck and who boards it (and who has been riding it for decades) is as significant and chock full of lessons as a story can get. The Penn State-Jerry Sandusky-Joe Paterno scandal was important for some of the same reasons. It exposed the tendency of organizations to become corrupted when non-ethical considerations, usually money, freeze the clappers on multiple ethics alarms. It showed how “virtuous” people with power and influence can betray their values, admirers and supporters in the pursuit of personal or organizational goals. It showed how even usually complacent and biased journalists will suddenly become responsible when the details are juicy enough…and how some won’t. The Sandusky saga also was one more clue to how inherently warped an entire industry’s culture—in that case, big time college football—was (and is).

The Weinstein Train Wreck is worse, however, and also more significant. Weinstein is typical—extreme, perhaps, but typical—of  a popular and glamorous industry that has abused power to debase and exploit women for a century. The trade-offs and incentives turned many of the abused women into accessories of future crimes against other women, while some women, too powerful to have to fear the consequences of doing the obviously right thing, chose to protect the community and the industry rather than human beings. That they, and complicit men in the industry as well, did this while spending the past six years making angry public speeches about the sexist and misogynist attitude of Republicans flagged the kind of hypocrisy that demands substantive consequences.

It also demands reform. Anyone who  thinks Hollywood is going to retire the casting couch because of one especially disgusting and prolific predator is kidding themselves. Sexual harassment and gender discrimination is rampant at every level of the performing arts, from high school theater up through Broadway, and on to Hollywood. I question whether that culture will ever change significantly. At least this episode might educate the public that if they take moral grandstanding from the likes of John Legend, Meryl Streep and Jimmy Kimmel seriously, they are asking to be betrayed and disillusioned.

And that doesn’t even reach the political hypocrisy exhibited by the Democratic Party and progressives, which embraced and celebrated a sexual predator from Hollywood because he gave them money, just as they have been giving a sexual predator from Arkansas the King’s Pass on similar conduct because he gave them power. As long as the only voices calling attention to this are from the Right,  count on progressives to ignore or minimize the issue. After all, conservatives and Republicans accepted the devil’s bargain in allying themselves with Roger Ailes. Still, the criticism of the party and predator enablers like Hillary Clinton needs to come from the Left to do any lasting good. So far there has been some criticism from that direction, but not nearly enough.

2. Weinstein’s contract with The Weinstein Company  included a clause that allowed  his sexual harassment as long as he paid the costs of settlements out of his own pocket, TMZ reported yesterday. So much for the sham posture that the company was shocked and disgusted at his conduct. Poor Donna Brazile, desperately trying to join the futile virtue signalling by hypocrites who have been cheering on Hillary and her husband for decades, tweeted her admiration for the TWC board thusly

…only to have to delete the tweet later. Did Donna really believe that the TWC board, including Harvey’s brother, didn’t know what Weinstein was doing? Is she that stupid?

3. A lot of contentious debate on this topic at Ethics Alarms has arisen regarding the complicity and obligations of various Hollywood actresses. There are different categories, and conflating them only leads to confusion. Here are the categories and subcategories:

A. The powerless victims of harassment These are the young, aspiring actresses who were propositioned or assaulted by Weinstein, and convinced, rightly or not, that they would never have a chance if they complained

These are the equivalents of Bill Cosby’s victims, who only came forward after their abuser was wounded and vulnerable.

A 1. Powerless victims who accepted cash settlements. This means that since other remedies were unavailable to them, they at least triggered some kind of punishment and compensation. This required, however, allowing future victims to go unwarned, since the pay-offs were accompanied by confidentiality agreements.

B. Victims who were not powerless, due to connections in the industry. I place actresses like Ashley Judd, Angelina Jolie and Gwyneth Paltrow in this category.

C. Victims who, over time, became powerful, wealthy, popular and influential enough that they could have exposed Weinstein, if they chose, but didn’t.

C 1 Victims who received cash settlements when powerless but whose careers  progressed to the point that they could forfeit the cash and accept any legal consequences of breaking the contractual agreements.

D. Rape victims. Sexual harassment is a civil offense; rape is a crime. Many rapes can be substantiated by medical examinations, and rapists are dangerous. Accepting a cash settlement for not reporting one’s rape when the rape could have been substantiated—this is what Rose McGowan did—is a breach of multiple civic duties.

E. Women in the industry who became aware of Weinstein’s conduct and did nothing about it.

F. Women in the industry who became aware of Weinstein’s conduct,  did nothing about it, and continued to praise him in public.

G. Actresses who accepted Weinstein’s proffered bargain, and exchanged sexual favors for roles and contracts, turning what is laughably regarded a a meritocracy into sexual commerce. We don’t know who these women are, but it strains credulity to think there were none.

Of course, many male Hollywood figures also fall into categories E and F.

Categories C, EF and G are the most unethical categories. D is problematic as well.

4. Jane Fonda revealed to Christiane Amanpour that she is in category E. She “found out about Harvey about a year ago,” said the certified Hollywood royalty, outspoken feminist and progressive champion.  “I’m ashamed that I didn’t say anything right then,” Fonda said. 

Well, that’s nice. As long as she is ashamed.

We can proclaim our principles and values all our lives, but if we don’t act according to them when the lives of others are at stake, all of what went before is meaningless. How many women suffered at Weinstein’s hands after Jane knew? Continue reading

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