Professions

My Legal Ethics Association Dilemma

/ Jack Marshall / 7 Comments
Great. Unethical legal ethicists....

I have gradually discovered, over the past few months, that the association of legal ethics lawyers in which I am a card-carrying member is, in fact, biased, partisan, and not particularly ethical at all.

Membership in the group is considered a credential and an important one, especially since few legal ethics experts have degrees in the field. (My mentor in the area, Michael Daigneault, is one of the few who do.) I don’t belong to the association because of the credential—membership in the ABA ethics section is regarded as a credential too, and that association is crippled by bias, so to hell with it—but because it once seemed like a useful network and because the listserv keeps me relatively informed of major developments in the field.

I knew the group was overwhelmingly left-biased because the whole legal profession is left-biased. Conservative members generally foxhole during discussions that turn political, and they often do. When I have decided to be Popeye (“It’s all I can stand, ‘cuz I can’t stand no more!”) and point out a particularly annoying outbreak, I receive sheepish emails off site from members who tell me that they agree with me. They just don’t have the guts to say so on the site.

Last month, as I have mentioned here, I raised for discussion the difficult problem of how to square the legal profession’s protection of its many (MANY) alcoholic and substance-addicted lawyers with the duties of candor and communication to clients, supposedly a core legal ethics requirement. The group’s reaction was to “circle the wagons,” deny the problem, and attack me. When I responded in words I believed were appropriate to the attacks, I was singled out and threatened by the group’s president, who said that he had received complaints about my “incivility.”

Translation: Non-conforming positions that made some members uncomfortable are not welcome. Shut up, Jack.

I haven’t participated since. I had already been disillusioned twice in the previous weeks, once when the consensus was that ethics lawyer somehow get an exception from the legal ethics duty to report lawyers they know are unfit to practice ( it would take too much time, you see) and that the fact that bar associations, contrary to the public’s belief, not only do a terrible job policing the profession but intentionally make it difficult for the public to flag unethical lawyers. “How dare you!” would be my summary of the group’s reaction to my pointing out that fact.

Today I saw a post on the listserv by an esteemed member whose signature contained this as a feature:

“A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.” —-Declaration of Independence

So now I have to put up with partisan, No Kings, Trump Deranged virtue signaling. I am sorely tempted to drop a note with the coda, “These people are crazy.” —President Donald J. Trump, 2026 State of the Union Message.

I’m sure I would again be the target of censorship, and maybe, finally, banned. On one hand, I still find the listserv a valuable resource. On the other hand, as Captain Hook would say, they are hypocrites and unethical., and somebody ought to tell them.

Now what?

Ethics Dunce, Unethical Judge, and Possible Zombie: Ninth Judicial Circuit Court of Florida Judge Diana Tennis

/ Jack Marshall / 2 Comments

The zombie speculation is because I’m sure I’ve seen that expression on “The Walking Dead” or “World War Z.”

The Florida Supreme Court wants to fine Ninth Judicial Circuit Court of Florida Judge Diana M. Tennis (she’s in Orlando) after she admitted making more than 900 donations to left-leaning political causes, we learn from Law.com.

The Florida Judicial Qualifications Commission discovered last month that Judge Tennis gave nearly $30,000 in more than 900 separate donations to progressive candidates and those aligned with the Democratic Party.

Florida judicial canons explicitly bar judges from making political contributions:

Canon 7

A Judge or Candidate for Judicial Office Shall Refrain From Inappropriate Political Activity

A judge…shall not:

…make a contribution to a political organization or candidate.

Tennis told the commission that she mistakenly thought that the rule only applied to donations to candidates for state office, not federal ones. That means that she can’t read or understand statutes in plain language. Nothing in that rule above limits the restriction to state political activity. This judge is either dishonest or incompetent. Why would the Florida Supreme Court allow such a hack to continue sitting on the bench at all? She’s partisan, conflicted and untrustworthy.

The more I examine the issue, the more I realize that there are an unacceptable number of incompetent and unethical judges rotting our justice system, indeed an unacceptable percentage of bad judges that I fear equals a critical mass. Tennis is far from the worst, and she has no business judging anything more challenging than the state fair apple pie competition.

Then there is that zombie thing…

The Star Spangled Naked Teacher!

/ Jack Marshall / 9 Comments

It’s been a long time since Ethics Alarms had one of its trademark Naked Teacher Principle tales or even one of it’s many variations, like the Nearly Naked Teacher’s Volunteer Principle, the Drag Queen School Principal Principle, the Naked Porn-Performing Political Candidate Principle, and the Too Sexy Firefighter Principle, to name just a few. This one, from Alexander, Georgia, has nothing to do with July Fourth, except that I discovered the story this morning. It is certainly past time for one of these posts: the last one under the tag was here, and it was only about the related Naked Mayor Principle, involving the moronic mayor of Minot, North Dakota who accidentally sent an explicit nude video of himself to the city’s attorney.

Above is Maris Nichols, 25, a married Georgia high school teacher, who really likes having sex with students: she’s been indicted for showing at least six students the sweet mysteries of life in her classroom, at a golf course, and in a closet). Two of the teenagers were younger than 16. What puts Maris into the Naked Teacher Principle category is that she is a very provocative OnlyFans performer, and was being blackmailed by some of her students—it is unclear if they were among the one she was boinking—for better grades. They had discovered the OnlyFans channel she owns, operates, and uses to display her excellent Linda Lovelace impression, among other things.

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Supreme Court Ethics 1: Birthright Citizenship Is Here To Stay

/ Jack Marshall / 37 Comments

I didn’t venture an opinion on whether President Trump’s executive order banning birthright citizenship would fly with the Supreme Court (I did post about Justice Jackson making a fool of herself during oral argument), but I would have been surprise if today’s decision had turned out differently than it did.

The Supreme Court ruled today that President Donald Trump’s executive order was unconstitutional. The ruling was announced just as I was preparing commentary on earlier decisions this week: that post will arrive later today.

Chief Justice Roberts wrote the majority opinion in the 6-3 ruling. “If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design,” Roberts wrote. Justice Brett Kavanaugh concurred in the result but dissented on the reasoning. Such concurring opinions are for professors and geeks, to be cited in law review articles and wild-hair judicial opinion dicta.

Justice Samuel Alito made some interesting points in his dissent about how birthright citizenship has very different, and potentially perilous implications today that never occurred to the Founders, writing,

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Logic, Common Sense and Legal Ethics: The Pro Se Divorcing Lawyer Problem

/ Jack Marshall / 8 Comments

I know these technical legal ethics issues don’t interest a lot of readers, but it is my field, and this one is an all-time oldie-but-goodies.

A lawyer is in the midst of a divorce. He represents himself (a “pro se” representation); his wife has a lawyer. In all jurisdictions, Rule 4.2 or its equivalent declares that a lawyer may not meet with an adverse party in a matter without that party’s attorney present unless that counsel has been alerted and consents. The self-representing lawyer meets with his wife, whose attorney hasn’t learned about the meeting.

Is the lawyer-husband violating the rule?

The Supreme Court of Texas held last week that Rule 4.2 (Texas 4.02) does not prohibit a pro se lawyer from communicating directly with opposing party in a divorce . Ruth v Commission on Lawyer Discipline, 2026 WL 1699920. But in Missouri, the recent opinion regarding the exact same issue was the opposite. Here is that whole opinion, Informal Opinion Number: 2026-02, April 21, 2026:

Question:  Lawyer is divorcing Spouse.  Lawyer is pro se in the dissolution.   Spouse is represented by counsel.  Lawyer and Spouse had reached an informal agreement about the division of property before filing the dissolution action.  Lawyer and Spouse continue to reside together while the dissolution is ongoing.   Spouse discussed with Lawyer repairs needed at the marital home and payment for the repairs.  Spouse initiated the conversation.  After Lawyer spoke with Spouse regarding the repairs, Spouse’s lawyer advised Lawyer that all communications concerning the dissolution should be made through Spouse’s lawyer.  As a party, Lawyer believes Lawyer has a right to communicate directly with spouse.  Lawyer bases this belief upon a reading of Rule 4 dash–4.2 and Comment [4] to the Rule.  Rule 4 dash–4.2 prohibits a lawyer who “is representing a client” from directly communicating about the subject of the representation with any other represented party.  Comment [4] to the Rule provides that parties may communicate directly with each other.

  1. Is Lawyer correct in the interpretation of the rule and its comment?  
  2. Is the interpretation the same, regardless of whether Lawyer is pro se or Lawyer has engaged counsel to represent Lawyer?

Answer 1:  No, Lawyer’s interpretation is incorrect.  Interpretation of the Rule and Comment [4] require consideration of both the Rule’s plain language and the policy purposes behind the Rule.  The Rule protects a represented person against overreaching by other lawyers, interference with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.  See Comment [1] to Rule 4 dash–4.2.  Direct communications between a represented party and a pro se lawyer create the same risks that Rule 4 dash–4.2 was designed to prevent.  So, the pro se Lawyer is considered “self-representing” or, i.e., “representing a client,” and direct communication with the spouse regarding the dissolution is prohibited.  See Informal Opinion 2011 dash–03.  This is true even if Spouse initiated or consented to the communication.  See Comment [3] to Rule 4 dash–4.2.

Answer 2: The same risks exist with direct communications for the represented party regardless of whether Lawyer is pro se or has counsel. Consequently, Rule 4 dash–4.2 prohibits direct communication between the parties unless counsel for the parties consent to direct communications or the communication is authorized by law or court order.

The consensus among legal ethicists is that the Texas approach makes sense and the Missouri version does not. A spouse in the midst of a divorce should not be prohibited from talking things out with his partner if she consents just because he happens to have a law degree. The non-lawyer party can always say refuse the meeting. I would add, however, that best practice is for the pro se lawyer to advise his spouse to check with her attorney before agreeing to the meeting.

Are you with Texas or Missouri, or me?

Alcoholic Lawyer Ethics: An Inconvenient Truth

/ Jack Marshall / 13 Comments

[That’s Paul Newman above, playing the alcoholic trial lawyer in “The Verdict.”]

I recently caused consternation (again) on the listserv of the Association of Professional Responsibility Lawyers (APRL), the organization that brings together most of the lawyers who concentrate on the contentious field of legal ethics as ethics partners, professors, state bar disciplinary counsel, CLE trainers, consultants, and just interested lawyers. I had been considering dropping this metaphorical bomb on the group for some time. My thesis: lawyers who are alcoholics, “recovering” or not, are ethically obligated to inform their clients of that ongoing and incurable malady. I see no way out of this ethical obligation, but the legal profession has been scrupulously avoiding confronting reality for centuries.

Alcoholism was once the secret meaning of “moral turpitude” in state bar associations’ requirements for admission: if you were guilty of moral turpitude, you couldn’t get a law license because of a presumed character deficit. When alcoholism was finally recognized as the illness it is, being an alcoholic was no longer a basis for bar exclusion or discipline. Bar associations all established “Lawyer Assistance Programs” as the alternative to punishment for lawyers with alcohol or substance abuse problems. That’s nice. However, none of the measures currently employed deal with the inconvenient facts of alcoholism.

Based on my knowledge and extensive experience with friends, family and associates, all alcoholics are untrustworthy by definition. They have a strong tendency to lie, for example (and they will admit that, if pressed) to conceal their addiction as well as the often disastrous results of it. No one, including the alcoholic himself or herself, can know when a relapse will occur or what will trigger it. A binge alcoholic can seem healthy and dependable for months or years, and suddenly go on a bender that incapacitates him. My late wife, a brilliant and capable woman who struggled courageously with the illness her whole life and ran our business and finances (or, should I say, said she was and made a good show of it) would have sudden unpredictable relapses that she covered up with consummate skill. She was what is called a maintenance-level alcoholic. She had a degree of intoxication she needed to maintain to function well and appear sober; below that level of alcohol consumption she suffered from withdrawal symptoms. One drink over that set-point, however, and she was physically and mentally incapacitated. Many maintenance level alcoholics successfully hide their addictions while actually being drunk every day in highly challenging jobs…until they can’t. Alcoholism is a progressive disease. Over time, alcoholics’ ability to control their addiction deteriorates along with their over-all health and mental state.

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Now THIS Is An Unethical Judge!

/ Jack Marshall / 9 Comments

U.S. District Judge Eleanor Ross of the Northern District of Georgia had a habit of having noisy sex with a police commander in her chambers during office hours. This resulted in a “chambers workplace that was extremely uncomfortable and troubling for clerks,” a judicial panel concluded.

Gee, ya think?

Ross was nominated to the bench in the Northern District of Georgia in 2014 by President Obama. Of course she was. She’s a Democrat, she’s black, she’s arrogant, and she’s unqualified to be a judge. A special committee released damning findings of misconduct in a report two weeks ago. Ross was found to have lied about having sexual intercourse in her chambers—judges aren’t supposed to lie either—but inexplicably, the Eleventh Circuit and Judicial Conference Committee on Judicial Conduct and Disability decided sufficient punishment was to bar Ross from serving as a chief judge and require her to write apology letters to her clerks. Other than that, she only received a private reprimand. The disciplinary report signaled a whitewash by stating, “Although the special committee is deeply troubled by the conduct in which the judge engaged, the subject judge has demonstrated a strong propensity for rehabilitation and continued diligent service to the judiciary.” She lied to investigators! She was screwing around during work hours. That’s “diligent service to the judiciary”?

The lack of serious sanctions is indefensible. Ross shattered the following Canons in the Federal Judicial Code of Ethics:

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The ABA Issues An Ethics Opinion To Help Lawyers, Not Clients

/ Jack Marshall / 3 Comments

 The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 523 titled “Engagement Agreements Allowing a Lawyer to Withdraw When the Client Fails Substantially to Fulfill an Obligation Regarding the Lawyer’s Services.” 

The opinion’s summary:

“Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal’s permission to do so, when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client’s truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the Rules, other law (including court rules), or public policy. A client’s persistent failure to fulfill obligations regarding the lawyer’s services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are met. Further, the lawyer’s engagement agreement may put the client on notice of permissible grounds for withdrawal under Rule 1.16(a) and (b), including the client’s failure to fulfill obligations regarding the lawyer’s services. However, the engagement agreement may not expand on the grounds for withdrawal set forth in Rule 1.16 or purport to alter or amend the grounds for withdrawal or the process for withdrawal required by the Rule.”

The ABA is being coy. Traditionally, because, you know, we lawyers are professionals and are not in it for the money but rather for the good of society, lawyers aren’t automatically allowed to drop deadbeat clients because they have stopped paying. It is not unusual for a judge to refuse to allow an attorney to withdraw for that reason, and there is another Catch 22: the confidentiality rules in most states forbid a lawyer from telling a judge that a client isn’t paying his or her legal bills, or can’t.

One coded message that some jurisdictions wink at is “Your honor, I request to withdraw because Mr. Green is unavailable at this time.” Of course, coded violations of confidentiality are still violations. Now the American Bar Association is saying that “the client’s failure to fulfill obligations regarding the lawyer’s services” makes dropping that client reasonable and ethical. This is supposed to be a profession. But for most lawyers out there, it’s all about the money.

The ABA’s pronouncements aren’t binding on anyone, remember.

The full opinion here. 

Comment of the Day: “What Exactly Are California’s ‘Values’? Can Anybody Explain?

/ Jack Marshall / 3 Comments

Sarah B, not to be confused with the other eminent commenter here with a similar handle, put together a two-part comment that provides an overview of the growing problem of sexual predator teachers. Ethics Alarms has done a lot on this topic, but not lately, perhaps because there are so many other things wrong with our education system. This may have been the most recent; I should have had a tag for “predator teachers.”

I should shut up now: it’s a long piece, and worth reading, Here is Sarah B’s Comment of the Day on the post, “What Exactly Are California’s “Values”? Can Anybody Explain?”

***

As much as I hate to defend California, this is hardly unique.  Wyoming has similar policies and we are about as red as they come.  A previous principal in my town harassed/seduced teachers and students who reached the age of 18.  Because all of his predations were of adults (even if only technically), he remained at his job for nearly a dozen years before enough complaints and the loss of too many teachers forced the school board to finally let him go.  Just this last couple of years, a special education teacher was arrested after sexually abusing lots of kids just a few towns over from us.  He had been skirting the edges of the law for years, but finally crossed enough lines that he could be arrested and fired, after abusing at least a handful of kids.

The other stories I know of are teachers who abuse students in other ways, not sexually, but I personally do not see much of a difference between a teacher who sexually harasses students and a teacher who beats students up, since children should be safe and unharmed in the school system if it were any good.  Therefore, I’m picking on a favorite story of mine involving my cousin, since I know many of the particulars that I might otherwise not know in detail.  He worked in one town and was fired for wrestling his students and put a few too many in headlocks.  After being fired for this, he was transferred to another town, where he rug-burnt a few handfuls of his students.  He got fired again, and was hired as the youth pastor at the local Baptist church.  He wrestled a few more kids harshly and is currently not allowed to be the only adult present when the youth group meets. 

Frankly, if one looks at the data, 38% of all students in 7th-12th grade receive sexual harassment/abuse in the public school system from adults, according to some studies in 2017.  I caution that these studies have broad definitions of sexual abuse/harassment, including things ranging from rape to cat-calling to inappropriate jokes and sexual comments.  Of course, the more minor offenses of inappropriate comments and commentary are far more common than the more serious ones.  Grooming behavior is reported separately, but is very common.  The adults also range from teachers to coaches, bus drivers to lunch ladies to janitors, and everything in between.  However, 63% of the behavior nationwide comes from teachers.

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Ethics Dunce: D.C. Bar Senior Assistant Disciplinary Counsel Jack Metzler

/ Jack Marshall / 3 Comments

As I often say (or think) in such situations, “Yikes!”

I’m going to send you to a thorough exposé over at Signal, a conservative website, which means its thorough coverage of this example of irresponsible conduct in a position of trust as well as a stunning “bias makes you stupid” display will be brushed off by some as just a partisan attack. I’m certain some ideological hostility helped prompt the piece, but it is accurate, which means that Signal has flagged a genuine ethics problem. Good for Signal.

D.C. Bar Senior Assistant Disciplinary Counsel Jack Metzler has posted dozens of inflammatory, openly partisan, politically-motivated comments on social media for years,. He has mocked, insulted and attacked conservative Supreme Court Justices (but never the liberal minority). He has reposted with favor attacks on Donald Trump and Elon Musk (for his conservative views.) It appears someone finally told him, “Hey, moron, what are you doing?” and he’s taken down the worst of the tweets. The internet is forever, though. And Metzler has moved to BlueSky, the Twitter/”X” alternative for progressives who can’t tolerate people and opinions that don’t toe the woke line. I regard that as signature significance for Trump Derangement and partisan indoctrination.

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