Professions

Ethics Quiz: Investigative Reporting Ethics

/ Jack Marshall / 6 Comments

In this article, (Gift Link) a New York Times investigative reporter explains how he has cultivated a source that he knows is distributing illegal drugs that may be fatal.

He writes in part,

“It was a small-time operation, but one that illuminated a big point for our reporting: A single person, without cartel backing, can order and redistribute potent chemicals.

I wanted to verify his account with others. But I also had to make good on my commitment not to reveal his identity. So I compared the information he was giving me with reporting I’d done with dozens of experts and law enforcement officials who told me what they understood about this market. I also spoke to people in his circle of friends and associates.

All along, I was keenly aware that the drugs Chemical Analyst was selling can be fatal. I asked him about this — as I’d asked other dealers and suppliers — and he professed here to be a libertarian. As a human, I find it terrifying the drugs he sells could kill people. It was painful to watch him use drugs himself, and I often feared for his safety. But as a reporter, I have a responsibility to explain to the public what’s really happening on the drug frontier.”

This is different from most Ethics Quizzes here, because my position is set and unshakable. The reporter’s duty “to make good on [his] commitment not to reveal [the drug pusher’s] identity” must be subordinate to his duty to society as a citizen and responsible human being. Even lawyers are authorized to violate a clients’ confidentiality to prevent death or serious bodily injury to a third party. How many people should die so that the reporter can explain what’s happening on “the drug frontier?” My verdict: none.

The reporter says he’s talked to lawyers and other journalists as well as “experts” and law enforcement officials. I doubt that he has talked with any ethicists.

Your Ethics Alarms Ethics Quiz of the Day(that I have already told you my answer to..) is…

Would it be ethical for the reporter sic the police on this criminal? Could it be ethical not to?

The ABA Wants Lawyers To Report Biased Judges

/ Jack Marshall / 1 Comment

Hmmmm. It can’t be that the notoriously woke ABA is concerned about partisan judges legislating from the bench, can it? Naaah, impossible. What was I thinking?

The American Bar Association Standing Committee on Ethics and Professional Responsibility today released a formal ethics opinion regarding the ethical obligations of lawyers who possess information that could lead to a judge’s disqualification. The opinion declares that a lawyer’s role as an officer of the court requires the disclosure of such information to protect the integrity of the judicial process, provided the disclosure does not violate client confidentiality.

Citing ABA Model Rule of Professional Conduct 8.4(d), otherwise known as the “catch-all rule” that some bar associations (like Virginia) regard as too vague to be meaningful, the ABA concludes that because lawyers are prohibited from engaging in conduct that is “prejudicial to the administration of justice,” when a lawyer knows of information reasonably likely to trigger a judge’s disqualification obligation under the Model Code of Judicial Conduct, the lawyer has a duty to speak up. Lawyers typically would rather not do so in such situations, being afraid of making an enemy in black robes.

Examples of such information not meant to be all-inclusive include prior employment connections (a client of mine couldn’t get a judge to recuse despite his having been a partner in the opposing counsel’s law firm), campaign contributions (the judge knowing that your client, or you, contributed to the judicial candidate who ran against her); a spouse’s law firm’s involvement in the case, and a counsel’s business relationship with a judge’s family member.

Here is the link for ABA Opinion 522.

Update on “Ethics Observations On the Allied Injury Group’s ‘Your Favorite Attorney’ TV Ads”

/ Jack Marshall / 10 Comments

Last year, almost a year ago, I posted this commentary about the Allied Injury Group’s TV ad that embodied all of the horrors the legal profession used for a century to ban lawyer marketing and advertising (thus forgetting about the First Amendment thingy, you know, just like today’s progressives..). In the process, I managed to make an unethical mistake, mislabeling the slimy law firm involved and calling it the Allied Law Group, a non-slimy law firm that was none too pleased. I apologized profusely to the representative of that firm who called to ream me out and made the correction pronto.

The main thrust of the original post was that the ads seemed to present the silly character giving the pitch as a lawyer, and no matter how unlikely that seemed it was a bright line ethics violation as misleading advertising.

This morning I saw the firms’ new add, which dropped at the end of March. That notice, with chase lights running around “not a lawyer,” appeared a few second in.

Good. We ethicists have to take our meager victories, however rare, to maintain our sanity.

On California’s Lawyer Civility Pledge

/ Jack Marshall / 10 Comments

California lawyers in Marin County will soon be required to take a civility pledge as part of their annual renewal oath. The pledge, approved by the State Bar’s Board of Trustees, applies to all 286,000 licensed attorneys and will become mandatory on April 1.

Incredibly, California lawyers, a significant number of them, are objecting. The pledge is “vague,” they say, and could violate First Amendment rights. They also claim that it’s unfiar to change the entrenched courtroom habits of veteran lawyers; in other words, “How dare the bar hinder lawyers who have been successful being assholes?”

The frightening pledge reads simply, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

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Ethics Quote of the Month: Ninth Circuit Judge Kenneth K. Lee

/ Jack Marshall / 15 Comments

“District courts cannot stand athwart, yelling ‘stop’ just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise.”

—Judge Kenneth K. Lee of the Ninth Circuit Court of Appeals, writing  separately as a panel overruled a district court and held that the President had the power to suspend the Refugee Admissions Program.

Of course he did. The law and Constitution is clear on that point, but a woke District Court halted the President’s decision anyway. This was unethical as well as illegal, but, as Prof. Josh Blackman writes,

“President Trump is back in office, progressives still challenge virtually every action he takes, and judges in blue states continue to grant relief. No surprise there. But there is a new dynamic. Now, not only are lower court judges resisting the President, but they are also resisting the Supreme Court. In August, Justice Neil Gorsuch rebuked an attempted . Judge Brian Murphy of the District of Massachusetts managed to get reversed twice by the Supreme Court in the same case. “When this Court issues a decision,” Gorsuch wrote, “it constitutes a precedent that commands respect in lower courts.” Gorsuch added that “[t]his Court’s precedents, however, cannot be so easily circumvented.” 

Remember, it is Trump’s opponents who keep accusing him of breaching “democratic norms,” yet the Axis of Unethical Conduct ( the “resistance,” Democrats and the media that carries on their propaganda) is literally defying the greatest democratic norm of all, the Constitution. Blackman calls this attempted usurpation of power by activist, partisan judges “judicial resistance,” in other words, an abuse of judicial power for partisan objectives. It is—this is me and not the professor saying this—grounds for impeachment. President Trump is not exceeding his Presidential authority as the Trump Deranged scream, but rather the judges and courts that are interfering in the Constitutional hierarchy. Unethical, you think? Damn right.

Blackman:

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Ethics Dunce: Trump’s Justice Department

/ Jack Marshall / 10 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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