From The “Res Ipsa Loquitur” Files, Legal Ethics Section, Zoom Subsection…

Zoome etiquette BIG

It’s a little fuzzy, so I’ll summarize: during a Zoom trial before the Michigan Court of Appeals, this Michigan lawyer held his middle finger up to the camera while his opponent was speaking. When the judges questioned him regarding the gesture, he said, apparently, something like “Not me! I can’t imagine what you are referring to!” even though his actions were recorded.

Mid-Day Ethics Interruptions, 6/4/2021: After the First Item, You May Not Want To Read Any More…

Screamfest

1. When ethics alarms were never installed...The question here is not whether this was unethical. Of course it was. The question is how such an episode could happen anywhere in this country. Eight high school football coaches at McKinley Senior High School in Canton, Ohio have been placed on paid leave after apparently forcing a 17-year-old player, a Hebrew Israelite whose faith forbids the consumption of pork, to eat a pepperoni pizza in front of the team as punishment for skipping a practice. The family is suing the school district for violating the student’s First Amendment rights.

The head football coach, Marcus Wattley, allegedly told the boy that if he didn’t eat the pizza, his team mates would be punished. I don’t comprehend this. How can someone live in the U.S. and think forcing a child to violate his faith is anything but abuse? How does someone like Wattley get hired by a public school and entrusted with the welfare of children? Why would any high school have eight assistant football coaches?

If the facts are confirmed in an investigation, more than the coaches should be fired and, one hopes, prosecuted. The principal and other administrators should also be canned. [Pointer: JutGory]

2. Nah, there’s no mainstream media bias…The dozens of ways the mainstream media warps the news and manipulates public opinion becomes oppressive once you are sensitized to it. The headline in the Times two days ago, for example, was “GOP Challenges Teaching of Racism’s Scope.” That headline presumes as fact that “Critical Race Theory” and the “1619 Project” fairly and accurately convey “racism’s scope.” “GOP Challenges What It Calls Anti-White, Anti-America Indoctrination In the Schools” would be a neutral headline. Later in the same article, the news story refers to President Trump’s “racist comments, ” which is just a continuation of a narrative build on a media-fueled Big Lie. President Trump made many insensitive, provocative and politically incorrect comments. None were “racist.”

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In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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A Scandal That Compels The Question: If This Can Happen, What Other Ethics Rot Lurks In The Justice System?

Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.

You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.

Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.

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The New Fascists Among Us, Part II: The American Medical Association

The tweet above is the smoking gun that proves the attitude toward freedom of thought, opinion and expression in the American Medical Association, a group that most Americans believe is dedicated to the area of expertise of its members: health and medicine. The tell-tale words of the fascist are right there: “harmful podcast and tweet,” because words that challenge the required orthodoxy must not be allowed, and “We are taking steps to ensure this doesn’t happen again,” meaning intimidation, punishment, indoctrination, and censorship. These are the tools of those who fear free speech, and who demand compliance with mandated beliefs.

Once the damning tweet was exposed by, among others, Campus Reform, the American Medical Association took it down. There is no reason to do this unless the group realizes that it reveals too much. This tweet, however remains:

That tweet exposes the AMA for what it is: a political ally of an ambitious rights-repressive regime, and an organization that is abusing its perceived authority and the public trust. As with a similar recent proclamation by the CDC, firearms and the Second Amendment are not the proper concern of the AMA. Using the power of a collective professional organization to lobby publicly or privately for restrictions on American rights unrelated to medicine is an abuse of power and a misrepresentation. (The American Bar Association, and many, many others, engage in the same insidious mission creep. It is why I refuse to belong to the ABA.)

In past posts on this topic, I have noted that if my doctor started questioning me about whether there is a firearm in my home (there is), I would a) end the discussion, b) leave the office and c) find a new doctor, just as I would if he quizzed me about how fast I drove or what kind of dog I owned. Physicians are authoritarian by nature, and I suppose it is to be expected that they would gravitate toward totalitarian government and its methods. Expected, I say, but not tolerated or excused, at least by me.

Nobody else should tolerate or excuse it either.

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Morning Ethics Warm-Up, 3/23/2021: Shots

This morning served as a perfect example of how the news is now automatically politicized and prioritized for partisan ends. On CNN, a panel was discussing the mass shooting in Boulder. Colorado, and instantly transforming the segment into gun-control mass rant. On Fox, the crisis of the day was the chaos at the border, where the virtual open-borders policies everyone—including those planning to be illegal immigrants—knew would come in along with the Biden administration is having the predictable effects. That segment was a diatribe against the wink-wink, nudge-nudge Democratic enabling of uncontrolled immigration.

CNN wins in the closely contested dubious ethics category by having “contributor” Andrew McCabe on the panel. McCabe epitomized the FBI’s corrupt and partisan efforts to injure the Trump Administration from within; he leaked information to the media and lied about it; he was fired, and deserved to be. McCabe’s high-profile anti-Trump conduct was sufficient to get him a gig on CNN, where being part of “the resistance” is all one needs to endear oneself to the Trump Deranged.

McCabe should have lost his law license, as any attorney who leaks confidential information should, and personally, I wouldn’t trust him to walk my dog.

1. You want to be paid $15 an hour for doing a job this poorly? This morning, having been forced to get up and move my car at 7 am, I decided to drive to the local McDoanld’s for my favorite guilty morning pleasure, a sausage biscuit and some hash browns. For once I could understand the heavily accented woman on the intercom, and I made a clear and distinct order. But given false security by this unusual development, for the first time in a long while I didn’t check the bag—this McDonald’s bats about .500 in getting orders right—and sure enough, when I arrived home, I found an Egg McMuffin instead of a sausage biscuit. I hate Egg McMuffins.

This isn’t brain surgery. I know it’s a crummy job, but it is what they are being paid for. Don’t tell me someone who is that inattentive deserves “a living wage.” Pay them for not working, if you foolishly want to treat them as charity cases; at least then they aren’t getting rewarded for doing a job badly.

2. Why can’t McDonald’s work this efficiently? My experience getting my first Wuhan virus vaccination (in Alexandria, Virginia) was excellent. The elaborate process, staged at a middle school about five minutes from my home, was well-planned, cheerful, and quick, even on a Saturday with long lines. I must have personally thanked ten volunteers.

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Perhaps The Strangest Unethical Prosecutor Story Yet

doordash

I have written about over-zealous prosecutors and incompetent prosecutors. I have written about a prosecutor who moonlighted as a dominatrix and another who moonlighted as an NFL cheerleader; a prosecutor who helped his drug-dealing prepare nickel bags, and a prosecutor who faked sleeping during trials to distract the jury from a defense attorney’s closing argument. However, I never thought I would see this.

Greg Shore, the first assistant district attorney in Bucks County, Pennsylvania, not only moonlighted as a delivery driver for the online food ordering company DoorDash, he did so during his work hours as a prosecutor. As in, “I’m sorry, I can’t work on my closing argument right now, I have to get this Chinese food order across town, stat.” Or “Hey, thanks for the barbecue delivery–wait! Aren’t you the guy prosecuting the man who raped my wife?

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Ethics Dunce: The Florida Bar. Again.

The reluctance of the legal profession to acknowledge that members of the public are as qualified to recognize metaphors, puffery and hyperbole in the marketing of the legal services as they are when they are buying cupcakes or hiring plumbers continues to astound. Many state bar associations still have, and enforce, ethics rules that make the kind of obvious analogies routine in TV, online and print advertising violations because they are deemed “misleading or deceptive.” Florida has long been one of the most notable laggards in applying common sense to lawyer advertising. In contrast, the District of Columbia, with the largest bar in the nation, has largely eliminated such rules. except in conduct constituting outright lies. Just a few days ago, I told a client that the other bars were slowly moving in D.C.’s direction. I did not expect Florida’s bar to again embarrass itself and its lawyers–AND MY DOG—again, after making itself the butt of jokes over a decade ago with virtually the same complaint it made against a lawyer’s ads more than a decade ago. I thought the Florida Bar had learned. I thought eleven years was more than enough time for it to accept the basic concept of advertising…and to learn about dogs.

Guess not.

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Saturday Ethics Diversions, 3/6/21…And Remember The Alamo!

Alamo morning

On this March date in 1836, after a 13 day siege, the Battle of the Alamo ended when a pre-dawn attack by the much larger Mexican force slaughtered the 200 (or more) Texan defenders, creating many legends—the line in the sand, Jim Bowie’s desperate fight from his sickbed, Davy Crockett battling on as the Mexicans poured over the walls of the fort— and an iconic symbol of American bravery, sacrifice, and resistance of tyranny. The final minutes of the defenders were spent in desperate hand-to-hand combat with knives, swords and clubs.

Thirteen days earlier, on February 23, Mexican General Antonio Lopez de Santa Anna ordered a siege of the Alamo Mission, near present-day San Antonio. It was occupied by rebel Texas forces. They spent the next two week ducking shells during the night and repairing the fort during the day. On the night of the 5th, however, there was no shelling. The exhausted men of the Alamo finally had a chance to sleep, and the Mexicans were almost inside the walls before they awakened. The bloody battle was over in less than 30 minutes. Several Texans reportedly surrendered, but Santa Anna ordered all prisoners executed, as he had promised when William Barrett Travis refused to surrender at the outset of the seige. Historians estimate that the battle cost Santa Anna between 400 and 600 soldiers, a high price for a fort with little strategic value. On April 21, 1836, Texas and Mexico fought again at the Battle of San Jacinto. This time it was the Mexicans who were surprised, and the rout won independence from Mexico and brought the Texas Revolution to an end.

I’ll be watching the 1960 John Wayne movie tonight. It is historically inaccurate in almost every way, but if there was ever an event in our history when the legend was more important than the reality, it is the battle of the Alamo.

1. It’s great to see that the news media and others have adopted a more fair and forgiving sta… Oh. Oh, right. “It’s amazing. Indian-descent Americans are taking over the country: you, my vice president, my speechwriter,” President Biden told Swati Mohan, NASA’s guidance and controls operations lead for the Mars Perseverance rover landing. Imagine the reaction from Democrats and pundits had the previous President said that. It would have been a story for weeks. The episode would have been cited any time one of the Trump Deranged was asked to defend the hardy Big Lie that Trump was a racist. Now that Joe Biden is President, the office is back to having the benefit of a presumption of good will, which is necessary for any President to do his job. About the only people mentioning Joe’s latest—read his quote with Jews or “blacks” in place of “Indian-descent Americans”—are bitter conservative pundits, and people like me, who foolishly believe that the same standards should be applied regardless of race, creed, gender or political affiliation.

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Ethics Dunce: Plastic Surgeon Dr. Costanza, I Mean Scott Green

Dr. Scott Green, a plastic surgeon, tried to appear before a judge during a remote video-conferenced traffic trial last week from his operating room, while he was working on a patient. This was not a reality show stunt: Green really attempted to do this. Saved time, you know. Busy, busy, busy. Sacramento Superior Court Commissioner Gary Link, presiding over a virtual courtroom at the Carol Miller Justice Center, couldn’t believe what he was seeing: a defendant in surgical scrubs, with his patient just out of view.

“Hello, Mr. Green? Are you available for trial?” asked a courtroom clerk. “It kind of looks like you’re in an operating room right now?” “I am, sir,” Green replied. “Yes, I’m in an operating room right now. I’m available for trial. Go right ahead.” The doctor had his head down, talking as he replaced a nose, pumped up some breasts, or something. Link was dumbstruck.

“So unless I’m mistaken, I’m seeing a defendant that’s in the middle of an operating room appearing to be actively engaged in providing services to a patient. Is that correct, Mr. Green? Or should I say Dr. Green?” Link asked. The video is on YouTube, and one can hear the sounds of medical devices at work, pumping and beeping.

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