Professions

Unethical Quote Of The Month (Lawyer Representing A Hypocritical And Unethical Client Division): Keith Wyatt

/ Jack Marshall / 12 Comments

“She lied to her mother so she could have sex with her teacher. She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that?”

—-Lawyer Keith Wyatt, L.A. Unified School District’s trial attorney who successfully defended it in a law suit by the family of a middle school girl who had been engaged in a six month sexual relationship with her math teacher. The girl’s family claimed the district negligently permitted the teacher’s criminal conduct to occur and that the teacher’s exploitation of the girl had caused emotional damage to their daughter. Wyatt also told a radio interviewer that it was a more dangerous for a 14-year-old to cross a street in traffic than to have sex with her middle-school teacher.

Yes, he’s an idiot.

Yeah, those middle school tarts all want it, right, Keith?

Yeah, those middle school tarts all want it, right, Keith?

The school district fired him, disavowing and apologizing for his comments. Yet they were willing to let Wyatt argue in court—on the school’s behalf, remember— that a 14-year-old middle school student was mature enough to consent to having sex with her 28-year-old teacher, and that she shared responsibility for what happened. Wyatt introduced the girl’s sexual history into evidence as proof of his client’s lack of culpability.

There is nothing wrong or unethical about Wyatt’s tactics in the trial itself. State law is weird in this area—this is California, after all, home of Hollywood, Roman Polanski fans, Woody Allen enablers, Miley Cyrus and the Kardashians—for while the age of consent is 18 in criminal cases, two appellate court rulings have held that the argument that a minor can consent to sex with an adult is permissible in civil law suits. He did what the law permitted him to do in defense of his client. That’s not just ethical lawyering, it is at the core of legal ethics. The argument won. Wyatt did what he was trained to do, paid to do, and obligated to do if he agreed to take the case

However, it is a revolting and irresponsible argument for any school or school district to make. Wyatt should have made this clear, and maybe he did (though that quote doesn’t support such a supposition.) Who in their right mind–well, OK, this is L.A.–would send their child to a school system that takes the position that a 14-year-old student is responsible when she is raped by her 28-year-old teacher, and that she’s really not being harmed if he does? The teacher, Elkis Hermida, was convicted of lewd acts against a child and sentenced in July 2011 to three years in state prison.  Continue reading →

Sexism, Feminists, and The Scientist’s Shirt

/ Jack Marshall / 137 Comments

Offensive shirt

The European Space Agency’s probe managed to land on a hurtling comet millions of miles away to collect scientific data, and  has begun sending images from the surface of the body, known as 67P/Churyumov-Gerasimenko. However, Dr. Matt Taylor, one of the scientists responsible for the Rosetta probe mission found himself at the center of a feminist uprising after he appeared on television earlier this week….because of his choice of shirts.

Here’s a good view:

new-gunner-girls. shirt

Taylor, who appears to superficially fit the template of clueless scientific geniuses  presented in the hit comedy “Big Bang Theory,” appeared live wearing a garish Hawaiian-style shirt with a design made up of Heavy Metal comic book images of busty women in various states of undress, carrying guns and generally enacting the fantasies of 14-year-old boys. This somehow managed to overwhelm the astounding scientific achievement he has been part of, and angry feminists attacked:

“No no women are toooootally welcome in our community, just ask the dude in this shirt,” tweeted Atlantic journalist Rose Eveleth. Astrophysicist Katie Mack said, “I don’t care what scientists wear. But a shirt featuring women in lingerie isn’t appropriate for a broadcast if you care about women in science.”

So furious was the reaction of some feminists and others on social media and elsewhere that Taylor felt constrained to apologize, which he did during another televised update regarding the mission, saying, as he choked back tears, “I made a big mistake and I offended many people and I am very sorry about this.”

Then came the backlash from the men. Continue reading →

Unethical Tweet Of The Month: Andrew Barovick

/ Jack Marshall / 4 Comments
"What? Can't you take a joke?"

“What? Can’t you take a joke?”

Lawyer Andrew Barovick  resigned his leadership position with the New York City Bar Association after sending the following tweet about Chemung County Sheriff Christopher Moss, a Republican who had just lost the election and who happened to be black

 “In light of election loss, [Sheriff Moss is] mulling offers to be new spokes model for either Cream of Wheat or Uncle Ben’s rice.”

Oh, nice. Continue reading →

Stop Labeling The Sixth Circuit’s Approval Of Gay Marriage Bans As “Right Wing”

/ Jack Marshall / 87 Comments

prop-8People who don’t (or can’t) read court decisions—and in this very large group I include most pundits and journalists—are prone to dismiss careful thought out and reasoned judicial arguments that took careful research and consideration as the product of political bias rather than what they (usually) are: sincere, honest, intelligent dissections of issues that are far more complex than advocates for opposing sides care to admit.

The Sixth Circuit just triggered an almost certain U.S. Supreme Court review of state same-sex marriage bans by upholding such bans in several states. Immediately, pro-gay marriage advocates and pundits attacked the decision as “right wing,” as if the court reached the decision from a starting point hostile to gays and homosexuality generally. The implication of this interpretation is that judges do not follow the law, legal principles and standards of jurisprudence and construction, but merely decide what result they wish to reach based on ideological and partisan biases, and then write essays of advocacy disguised as objective analysis.

The presumption is both ignorant, unfair, and convenient. It is ignorant because it assumes that the judicial profession and those in that profession ignore the primary ethical requirements of being a judge, standards that have stood unchanged and unchallenged for centuries and that every jurist swears to uphold. The first two Canons of the ABA Model Judicial Code state those standards clearly: Continue reading →

Let’s Play “Pick The Most Unethical Lawsuit!”

/ Jack Marshall / 11 Comments

Bad suits

Hello, hello, hello, Game Show fans! My, what a great crowd we have today. I’m your host, Wink Marshall, and today our contestants are going to compete for Most Unethical Law Suit. As always, you, our home audience, will decide who get the prize, a lifetime supply of extremely expensive boloney, courtesy of our sponsor, Oscar Meyer. Are you ready? Then, let’s meet our contestants! First, heeeere’s…

Andrew Rector!

You remember Andrew, right? In June, I wrote…

ESPN cameras caught Andrew Rector sleeping in his seat in the fourth inning of  the April 13 Boston Red Sox-New York Yankees game. In the time-honored tradition of TV play-by-play when something funny, weird or, most especially, sexy is spied in the stands, ESPN commentators Dan Shulman and John Kruk  began making fun of him. The clip ended up on YouTube, naturally, and thus on various sports websites, followed by the various idiotic, cruel, gratuitously mean-spirited insults, usually composed by brave anonymous commenters. …Let me say for the record that picking fans out of the crowd at sporting events and making fun of them, whatever they are doing, is generally a rotten thing to do. I know: it’s public, you know you might be on camera, and the fine print on the ticket stub puts you on notice. Unless, however, the conduct involved is actually newsworthy or despicable (as in instances where an adult has snatched a baseball from a child), the Golden Rule applies. …Unfortunately, Rector, whose name was unknown and whose sleeping form would have been quickly forgotten, decided that his humiliation was so great that he needed to sue…for $10, 000,000. Rector filed the suit against ESPN, Shulman, Kruk, the New York Yankees and Major League Baseball…and asks for damages for defamation and intentional infliction of emotional distress, citing malicious and false statements said about him,including that Rector is “a fatty cow” that represents a “symbol of failure.” …None of the defendants actually said any of these things (“fatty cow”?). Rector’s suit is apparently making the creative legal argument that ESPN’s mild mockery seeded the vicious mockery elsewhere on the web.

Welcome back to Ethics Alarms, Andrew, old friend!  Try to sta awake, now! Has the Streisand Effect kicked in yet? We’re doing what we can to help!

Now let’s meet someone completely new to Ethics Alarms, Contestant #2, Continue reading →

“The Firm” Ethics: Mitch Should Have Known What He Was Getting Into

/ Jack Marshall / 9 Comments

I was just watching “The Firm” again after many years—my old friend and the terrific actor, the late Bart Whiteman, played “Dutch”—to get the ick of “Cabin Fever 3” out of my head. (It was part of last night’s Halloween triple feature at my house.)

Pay attention, Tom...

Pay attention, Tom…

In an early scene in the film, Harvard Law student Mitch McDeere (Tom Cruise) is being courted by big law firms offering perks and cash. Then a small Memphis firm he never heard of —later, he learns that it is run by the Mob— blows him away with an offer he can’t refuse. The firms partners tell him that they wanted him so much, they bribed the clerk at Harvard’s placement office to learn what salaries the other firms had offered Mitch, then matched it plus 20% more. Tom is impressed, and flattered, and greedy, and takes the offer, even though the firm had openly revealed itself as unethical and proud of it.

He should have seen this as signature significance of a dangerously unethical culture in a profession with high ethical obligations, and walked out the door. A young lawyer with well-maintained ethics alarms would have. Who knows? Maybe this was a test the corrupt firm used to weed out ethical associates.

I always thought Mitch was just unlucky, but in the film, at least, he ended up in a bad firm because an ethics alarm wasn’t working.

 

Cowardice, Censorship And Betrayal At Maiden (N.C.) High

/ Jack Marshall / 22 Comments

Almost Maine

Here is a strong candidate for teacher/blogger Rick Jones’ annual Curmie Awards on his blog Curmudgeon Central. He recognizes the most despicable conduct by teachers and school administrators, and while this year’s award may go to some fourth grade teacher who sets autistic kids on fire, I know he will share my disgust at this story.

The theater club at Maiden High School in North Carolina was in production of John Cariani’s newly-popular stage dramedy “Almost, Maine,” a series of vignettes about bittersweet love and romance. A brief scene touches on a budding same-sex relationship, and this so worried school administrators that before green-lighting the production, Principal Rob Bliss and Catawba County Schools Superintendent Dan Brigman decreed that every student wishing to audition or assist with the production must turn in signed parental permission letters. Only one student was prevented from auditioning through this screening process, and production commenced. The club to reserved the rights, rented the scripts, cast the parts and began rehearsals.  The local churches learned that that the show contained (Ewww!) gay people, and the school abruptly reversed course, cancelling the production. Principle Bliss issued this weasel-worthy statement:

“In regards to the request for students to perform the play “Almost Maine,” careful review and consideration was given to the contents of this play. The play contained sexually-explicit overtones and multiple sexual innuendos that are not aligned with our mission and educational objectives. As principal of Maiden High School, I have an obligation to ensure that all material, including drama performances is appropriate and educationally sound for students of all ages.”

He did not mention that the production had already been approved, and that he and the school caved to community censorship by right-wing bullies, intolerant religious jerks, or local jerks who didn’t have the resources to go to New York City and picket “The Death of Klinghoffer.” He had one, and exactly one, response available to him once complaints began rolling in from anti-gay, anti-same sex marriage citizens of fair Maiden. It would be this... Continue reading →

Ebola in Dallas: No Excuses For the CDC

/ Jack Marshall / 32 Comments

doctor_stooges_2

The statement by the nurses union in Dallas describing the Three Stooges level breaches in safety protocols surrounding the treatment of Thomas Duncan, the nation’s first Ebola fatality is shocking, but it should be no surprise, ironically. By now, Americans should be used to being told that our benevolent overseers in the government have matters well in hand, our best interests at heart, and the expertise and resources to do the job governments are supposed to do.  They are also used to discovering, especially lately, that the expensive systems and professionals we have been instructed to trust are in truth lazily administered, incompetently run, staffed with too many sluggards just waiting for a paid retirement, and most of all, well aware that failure carries little or no accountability.  In the recent past it has been the Secret Service, the Veterans Administration, the State Department, Homeland Security, the IRS, HHS and our military that have shown deficits in management, oversight, planning, professionalism and common sense undermining our trust. Now it is the Center for Disease Control. Continue reading →

Three Republican Candidates: Gaffes, Disqualifications, Or Something Else?

/ Jack Marshall / 7 Comments

shooting-yourself-in-the-footI felt badly about piling up three posts recently on unethical female Democrats running for office, and was inspired by the Washington Post’s Greg Sargent to do some analysis of Republican candidates who, at least according to Sargent, deserve equivalent criticism to what has been leveled at Alison Lundergan Grimes for refusing to say whether she voted for President Obama. [She did it again last night in her debate with Sen. McConnell.]

Sometimes finding Republican candidates who deserve an Ethics Alarms slap is hard, unless they say something bat wacky like, say, Richard Mourdock. If a Democrat is flagged by The Daily Beast or the Post, I can be pretty sure there was something said or done that was objectively troubling, because the mainstream media will bury anything from a Democrat that is vaguely defensible. A Republican, however, might be accused of certified insanity for a statement that offends progressive cant. Fox and many of the right wing websites, meanwhile, will ignore any Republican whose pronouncements don’t rise to “I am the Lizard Queen!” level of derangement, and will find fault with Democratic candidates on dubious grounds. Here are the GOP candidates for today’s ethics audit: Joni Ernst (U.S. Senate in Iowa); Tom Cotton (U.S. Senate in Arkansas); and Greg Abbott  (Texas Governor race): Continue reading →

“CSI” Ethics: Now THAT Was An Unethical Fictional Lawyer…

/ Jack Marshall / 3 Comments

CSIWow. That was one unethical lawyer on CBS’s “CSI” last night, and I mean even before we found out that he had stolen a vile of an Ebola-like virus and used it to murder a doctor, almost setting off a viral epidemic in Las Vegas. (Gee, I wonder where the writers got the idea for that story? See, we don’t have to argue about politicians causing panic over Ebola: the entertainment media is way, way ahead of them.) Among the lawyer’s ethical transgressions:

1. He set out to use his law degree to gain access, through employment, to a company he blamed for allowing a deadly virus to wipe out his family in South America. Needless to say, this is a blatant conflict of interest, indeed, the worst one for a lawyer I have ever heard of in fact or fiction. He wanted to represent a corporate client so he could destroy it.  This is a clear breach of Model Rule 1.7:

(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is a significant risk that the representation of one or more clients will be materially limited by… a personal interest of the lawyer.

Now, that conflict could be waived if the client were fully informed of the fact that its lawyer wanted to destroy it, and the client didn’t mind. That seems unlikely to me.

2. When it looked like his murder was going to set off a deadly epidemic, the lawyer decided to let CSI know that his client the biotech firm had lied about none of its supply of the virus being missing. He knew it was missing, because he had stolen it. The failure of a lawyer to remedy a client’s lie to police about a crime isn’t unethical in a criminal defense setting, but it is unethical if the lawyer would be aiding in another crime by doing so, which was the case here. Moreover, he is involved in the crime, unknown to his client. This would be a disqualifying conflict even if the one described above didn’t exist.

3, He also has an obligation under the ethics rules (Model Rule 1.4) to inform his client about matters relevant to the representation that the client needs to know, like “By the way, about that missing vial of deadly hemorrhagic virus you don’t want to tell the police about? I took it.”

4. THEN, he surreptitiously taped an employee and representative of the company who thought he was also representing her (if he wasn’t, he has an ethical obligation to make that clear—it’s called a “corporate Miranda warning.”) While it is legal in Nevada to secretly tape a conversation you are participating in, it is virtually never ethical for  a lawyer to do this with a client (That’s misrepresentation, violating Rule 8.4 in Nevada) , who is assured that her communications with her lawyer will be privileged, and held in strictest confidence under the attorney-client relationship.

5. Now, if the reason for the lawyer making the recording and handing it over to Ted Danson had been what CSI first assumed it was—that he was trying to save lives in imminent danger and deemed the revelation of a client confidence the only way to prevent it—he would have some support in the ethics rules, for there is an exception to the duty of confidentiality that can justify that.*  That wasn’t his motive, however, at least not all of it. He was also trying to make sure that the company—his client, which he was trying to destroy in revenge for his family’s deaths—was blamed for the virus that he had released. He had no justification for violating Rule 1.6, which says that a lawyer must keep client confidences.

6. Also, since he was representing both the employee he secretly taped and the company itself, he would have been obligated to report what she told him—evidence of a crime implicating the company–to his corporate client before reporting it to authorities, so the corporate client could report the lost vial itself, or at least have that option. If the attorney was going to exercise the “death or serious bodily injury” exception, he needed to tell the client that, too.

Yes, this was a very unethical lawyer.

Then there was that killing part…

* There was no reason to make the recording at all. This was a lame plot manipulation by “CSI.” Danson and his team used the biological residue on the recorder to prove that the same person who made the recording also stole the vial. But the lawyer could have just told the police about what his client admitted regarding the missing vial. No recording was necessary.