The American Bar Association Has Lost Faith In Professionalism, It Seems.

For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.

Now the American Bar Association has apparently decided that it was all a myth. In  Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.

“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”

The opinion breaks possible personal relationships into three categories:

Continue reading

Sunset Ethics, 9/30/2020: Conflicts Of Interest, Sexual Harassment, Movies And Lies

1. Conflicts of interest on my mind. I narrowly averted a disastrous conflict of interest yesterday out of pure moral luck, so the topic is much on my mind; I’m still distracted by the near miss. Professionally, it was the equivalent of almost being picked off by a bus.

NPR Legal Affairs Correspondent Nina Totenberg reacted to the death of Justice Ginsburg with an essay on her 48-year friendship with RBG, saluting Ginsburg’s “extraordinary character.” That’s funny: Totenberg never told NPR’s listeners, nor did  NPR, that she had a personal relationship with the Justice, despite being charged with covering the Court and critiquing its decisions.  Kelly McBride, NPR’s public editor and senior vice president of the Poynter Institute, threw a metaphorical ethics foul flag,

“In failing to be transparent about Totenberg’s relationship with Ginsburg over the years, NPR missed two opportunities,”she wrote on the NPR website. “First, NPR leaders could have shared the conversations they were having and the precautions they were taking to preserve the newsroom’s independent judgment,” McBride said. “Second, having those conversations in front of the public would have sharpened NPR’s acuity in managing other personal conflicts of interest among its journalists.”

Ginsburg, who officiated at Totenberg’s wedding in 2000. Nonetheless, the correspondent,  who wears her progressive bias on her sleeve as it is, denied that the conflict compromised to her journalism, telling  the Washington Post that NPR’s listeners benefited from ther friendship because it gave her greater insight into and Ginsburg’s  thinking.

And that justifies keeping the relationship secret from listeners how, Nina?

2. From the “When ethics alarms don’t work” files: Lawyer Phillip Malouff Jr. of La Junta, Colorado, was censured for a series of episodes of unprofessional behavior and sexual harassment.

In November 2016, Malouff  winked at a magistrate judge and said, “When you get back from your vacation, I better be able to see your tan lines.” When he visiting the same magistrate’s chambers to discuss scheduling matters, he  said, according to the female judge,: “Ask your husband a question for me when you get home tonight. Ask him what it’s like to have relations with someone who wears the robe. It has always been something I’ve wanted to do, but there have never been any women judges until now.”

Malouff  was informed that his comments were unprofessional and a violation of the Colorado Judicial Department’s anti-harassment policy. Ya think?

In July 2019, Malouff asked a judicial assistant to check whether the mother in a parental rights hearing had an outstanding warrant. When the assistant replied, “She is good.” Malouff  responded, “Her husband told me that she is good.

Wink wink, nudge nudge. Continue reading

Unethical Quote Of The Month: CNN’s Don Lemon

“You know what we’re going to have to do?… You’re going to have to get rid of the electoral college….And if Joe Biden wins, Democrats can stack the courts and they can do that amendment and get it passed.”

—Don Lemon, juvenile CNN host, in another one of his increasingly frequent whiny rants, this one about how unfair the  Electoral College is.

Because Lemon was talking to the dumbest broadcast journalist on television,  Chris Cuomo, and because if Lemon’s colleague realized how ignorant this statement was—never a sure thing when Cuomo is involved—he might have decided that it was better to mislead CNN’s viewers than to point out that Lemon doesn’t know the U.S. Constitution from an anchovy, nobody corrected this howler.

Lemon apparently thinks the Supreme Court “passes” amendments, or something. He clearly doesn’t understand how amendments actually get passed, and why this particular amendment will never, never be passed. Since he doesn’t know what he is talking about, it is incompetent, irresponsible and unprofessional for him to talk about it. Journalists are supposed to enlighten, not make the public more misinformed than it already is, a condition that poses a danger to democracy without being made any worse.

It is also incompetent, irresponsible, nonprofessional, reckless and a breach of duty for CNN to allow someone who couldn’t pass junior high civics to pretend to be able to analyze the nation’s political scene. Continue reading

Ethics Warm-Up, 9/21/2020: The “Waiting To Hear What Democrats Will Threaten Next” Edition.

Does anyone else find it remarkable that Democratic Party leaders aren’t the least concerned with how reasonable Americans might react to them talking like mobsters and thugs? Yesterday, Nancy Pelosi seemed to say that they might impeach the President if he nominates a judge to replace Justice Ginsburg. I suppose it’s comforting that the party is finally being open about the fact that it now regards impeachment as a pure partisan weapon, but how do you you threaten impeachment if a President fulfills his constitutional duties? For that matter, how can Democrats scream that the late Justice’s “dying wish” must be respected when it would require contradicting her statement about final year SCOTUS nominations: “The President is elected for four years, not three. So the powers that he has in year three continues into year four… and that’s how it should be”?

Well, it’s a rhetorical question, of course. Democrats have abandoned any pretense of consistency and integrity in their destructive anti-Trump mania. I thought this arch tweet was on point, but incomplete:

The list is much longer.

1. Love it. Princeton, engaged in BLM suck-up grandstanding, confessed that systemic racism is embedded there, so the Department of Education asked if Princeton doesn’t discriminate on the basis of race, as must be the case to continue recieveing federal funding.  The Education Department’s demand for an explanation got full huminahumina treatment in the statement Princeton issued in response. The excuse is that they aren’t at fault for the racism, since “everybody’s been doing it,” and at least Princeton acknowledges the problem.

Weak. Continue reading

On The Bright Side, At Least This Esteemed Journalism Professor Doesn’t Deny Bias…

This is three years old—the numbers are much worse for journalists now. And rightly so…

He celebrates it!

Stanford Communications Professor Emeritus Ted Glasser, in an interview with The Stanford Daily, asserts that objectivity is an impediment to good journalism. The profession, he said, must “free itself from this notion of objectivity to develop a sense of social justice.”  Instead, of objective reporters of events and facts to be then used by the publlic to make their own decisions and come to their own opinions. Glasser sees “journalists as activists because journalism at its best — and indeed history at its best — is all about morality…Journalists need to be overt and candid advocates for social justice, and it’s hard to do that under the constraints of objectivity.”

Yes, a veteran journalism professor actually believes that, openly admits it, and presumably has been teaching that to journalism students all these years.

It would strain credulity and chance to think he was alone in this approach, especially the way our current journalistic establishment behaves. Bolstering my confidence that Glasser is not an anomaly was Wesley Lowery,  an African-American journalist who has been a reporter with the LA Times, CBS News, and currently CNN (what a surprise!).   In a tweet, Lowery declared “American view-from-nowhere, “objectivity”-obsessed, both-sides journalism is a failed experiment…The old way must go. We need to rebuild our industry as one that operates from a place of moral clarity.”

Let me be clear. Since objectivity and the absence of bias are the very foundation of journalism ethics, the positions of Glasser and Lowery (and, I would guess, the majority of American journalists who may not be as candid, self-righteous and arrogant as them) would remove journalism from the ranks of professions, which all have defining ethical mandates designed to make them trustworthy. For a journalist, or worse, a journalism professor, to hold that it should be the objective of journalists to decide what to report and how to report it according to their own ideological objectives based on their personal interpretation of “morality” is a rejection of journalism and an endorsement of  the role of propagandist, which is the antithesis of ethical journalism. Continue reading

Monday Musical Ethics , 8/31/2020: A Number From Today’s Seminar!

Good afternoon!

We ran out of time and had to dash through our last number on today’s version of Ethics Rock (By the way, Mike Messer really looks like the logo, which was designed before we found him), so I’ll let the legal ethics whizzes here (and everyone else: non-layers often do better on these quizzes than lawyers do—take a shot at the questions…Are you ready? “NJSBA” means “New Jersey State Bar Association,” you stress the “J” to make it scan.

“The Day My Ethics Died”

[A ProEthics legal ethics parody to the melody of “American Pie” by Don McLean]

A long, long, time ago,
I can still remember
Legal practice used to make me smile
And I knew if I could get my shot
I’d win my cases, like as not,
And then I could drink Chivas for a while.

But ethics rulings made me nauseous
I’m no good when over-cautious.
Clients give a cruel look
When they see you check the rule book.

I can’t remember if I cried
When I finally knew my brain was fried…
I took the rules and looked inside,
The day my ethics died.

So, hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Oh, I’m the king of slip and falls
My suits make safer lawns and halls
(At least my wallet tells me so.)

My client, Mick, is lame and sore
Since he hit his head on a banker’s floor
And his injury has left him kinda slow.

Now his father has me change his will
To take out Mick and give him nil;
I know its Dad’s estate—
But doing this to Mick I hate!

Then there’s the day when Mick pulls out his gun
And points to strangers in the sun
He says, “I’d like to shoot them, one by one!”

The day my ethics died.

And I am singing,

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Crying, lying, everything I’m trying
But Mick is nuts, there’s no denying
I do what he says and we’re dead.

This guy hears commands from Outer Space
And that strange expression on his face
Tells me something has pulled loose inside his head.

He’s pushing theories that won’t fly
And making arguments that I
Would never use in court…
Perhaps I should abort!

Or instead, before his fate is sealed
A guardian can make him yield;
I should have found a better field
Before my ethics died.

So now I’m singing,

Hey, hey, Mister VSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Then, surprise! Just as I’m feeling sick
A settlement is offered Mick…
A deal like this won’t come again…
So come on Mick, be prudent, don’t be slow!

Drop the claim and take the dough
I’m sayin’, as your lawyer and your friend!

But Mick says no, it’s not enough
I argue, beg, and then get tough:
“You take it, or I’m through!
I’ll quit unless you do!”

Then as a last resort, I shout out, “Hey!”
“The Space Lords dictate what I say!”
And Mick says, “Really?! Then okay!”
The day my ethics died.

So I was singing

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

When the check arrived for Mick to take
He admitted that his pain was fake,
And I just groaned and turned away.

I tried to learn from CLE
But I fell asleep so rapidly
Though the man there gave me credit anyway.

And in the court the judges screamed
The juries drooled and the clients schemed
But nothing really mattered
My ethics all were shattered.

And the three things that inspired me
Justice,
Love, and a
Giant fee
Just seemed to be a mockery
The day my ethics died.

We started singing…

Hey, hey, NJSBA

Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

[SING ALONG!]

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”

Questions… Continue reading

Ethics Warm-Up, 8/26/2020: Impending Zoom

This, as some of you might recall, is the logo for the old PBS kids series, the lively cast members of which are now middle-aged and arthritic. i don’t like to think about it…

Ugh.

I’m hoping to get this posted while I’m simultaneously preparing for a three-hour legal ethics seminar for CLE credit sponsored by the D.C. Bar. Zoom seminars are grueling, and they remove my major asset, which is facilitating lively discussions about various ethical dilemmas.  Participants just don’t talk, and for all I know they are watching porn.

Incidentally, if you haven’t seen “Host,” you should. It’s a horror film about a Zoom meeting that goes really, really wrong. And its less than half as long as the seminar I’m about to do.

1. And speaking of horrorWhat the hell?

This is D.C. Comic’s new, politically correct, non-sexually objectified, woke Wonder Woman. Why can’t a plus sized woman in mom jeans be a super-hero, the artist asks.  Well of course she can, just as a fat ,flabby, bald , half-shaven, acne-suffering man can be Spiderman, if he gets bitten by the right arachnid. There is nothing wrong with idealized heroes, however. No matter how much the feminists try to brainwash little girls, Fat Barbie is never going to be a thing.

I hate to be conspiracy-minded, but chunky, A-cup Diana Prince reeks of Maoist cultural brain-washing. It’s suicidal virtue-signaling by D.C., who are deliberately alienating WW’s teenage  male fans, who will not get excited about a Wonder Woman movie starring Rosie O’Donnell, no matter how progressive that is. Continue reading

Mid-Day Ethics Madness, 8/19/2020: Susan B., Fauxahontas, Utah…And “Gordie”

When I was looking through the 2012 posts yesterday, ultimately stumbling upon the long discourse about Barack Obama’s disastrous Presidency, I was struck by how, even in an election year, so many non-political ethics issues were discussed here. This is something that was already driving me crazy about 2020. Thanks to the pandemic, there is virtually no popular culture news. Legal ethics news is drastically reduced, as are reports from other sectors of society and culture. In this warped environment, politics spreads like kudzu, or killer bees, or snakeheads—you can choose your favorite invasive species or opportunistic organism analogy. I’m trying, I swear, but my over-all impression looking back on 2012 is that writing, and I presume reading, an ethics commentary blog was a lot more fun.

I’m sorry.

1. Today’s rejected Ethics Alarms comment comes from “Gordie,” was opining on the post on Ellen De Generis’s late hit accuser. He wrote,

Ellen was an a$$ to this boy and shes paying for it now. All you lip huggers need to wake TFU and rejoice when you hear truth no matter how unsavory or unpalatable you find it. Be a bully, get bullied. Dont you all see that Karma train pullin up? And with enough hands to slap every butt as it goes on by toot toot

Observations:

  • Welcome to my world. This is why so few new voices are added to the commentariat here.
  • Does anyone know what a “lip-hugger” is?
  • Tells in the comment that let us know the writer can’t tell an ethics from fuzzy slipper: mentioning “karma,” and the statement, “Be a bully, get bullied.”

2. Here is some non-political legal ethics news, and it’s important, if technical.

Before this week, only the District of Columbia, where I am licensed, allows non-lawyers to be partners in law firms. The majority position in the profession is that non-lawyers inevitably have a different alignment of values from the legally trained, and thus are not likely to be as sensitive to duties to clients, like confidentiality, and conflicts of interest. Pure “investors” are also banned from buying a share of law firm profits, because they are deemed likely to be governed by financial needs and motives rather than the best interests of clients.

When the D.C. bar decided to break the mold decades ago, everyone assumed that other jurisdictions would follow its lead, and soon doctors, engineers, scholars and accountants, among others, would be joining firms and allowing them to add new services. (Europe and Australia already allow  such “multidisciplinary firms.”) It didn’t happen.

Now, however, the dominoes might be starting to fall.  From the ABA Journal: Continue reading

From The “Res Ipsa Loquitur” Files: The Presidential Ranking Survey

One of the more depressing developments during the Post 2016 Election Ethics Train Wreck has been how virtually all of our professions have proven unable to remain objective and trustworthy, instead descending into bias and submitting to peer pressure—exactly the kind of behavior professionals are supposed to have the training and integrity to avoid. Journalists have been the worst in this respect of course, with politicians close behind. However, judges, lawyers, educators, academics, psychiatrists, health officials, performers and, yes, ethicists have also disgraced themselves, among others.

One persistent example of a corrupted profession is historians, and a useful measure of their ethics rot has been Presidential rankings. Here’s one I missed from 2018, when “172 professional historians” were asked to rank the POTUSes from first to last, using a 1-100 scale. A Jimmy Kimmel writer who ran out of current Trump-bashing material circulated this on Twitter, and it is, as they say, “trending.”

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“The Great Stupid” Chronicles: Dumb Tweet, Unintelligent “Intelligencer”

Richard Spoor, he tells us, is a public interest lawyer with a special interest in land reform, mines and communities and compensation for occupational diseases, and a “militant non-racialist,” whatever that means. His tweet is addled in so many ways:

  • The fate of these two lawyers turned terrorists is no more “sad” than any story of previously law-abiding citizens whose ethics alarms stop working as they knowingly break the law.
  • The fact that they are “young” makes it no more sad than if they were older, like 50. They’re not kids: both are over 30. They cannot claim immaturity or lack of experience. My son nearly ruined his life with a terrible, spur of the moment decision that could have killed him and others, but he was a teenaged male. He was also lucky.  Truly young people like he was wreck their lives with bad decisions every day. That’s sad. Adults doing it is something else.
  • Participating in a riot and throwing a Molotov cocktail is not the act of an “idealistic” person by definition. Breaking the law, engaging in violence, and trying to destroy property for no good reason does not embody “ideals.” They embody the opposite of ideals. If the two lawyers  were really idealistic, this wouldn’t have happened.
  • They didn’t “get wrapped up” in BLM’s racist movement, they joined it. It isn’t something that just happened to them.
  • “Moment of madness” is another version of Rationalization #19, The Perfection Diversion, or “Nobody’s Perfect!” and “Everybody makes mistakes!” People don’t suddenly throw Molotov cocktails and go “Ooopsie! What was I thinking?” That’s not “a mistake,” it is the culmination of many intentional acts leading up to a serious crime.

Continue reading