Professions

Undercutting the “Nerd Defense”

/ Jack Marshall / 17 Comments

“A killer? Him? Come on, look at him. He couldn’t hurt a fly!”

More than a year ago, Ethics Alarms discussed the ethics of a current criminal defense tactic employed by lawyers with clients accused of violent crimes, putting them in nerdy glasses:

“It’s not a guarantee, but  the Daily News report says that criminal defense lawyers “swear by the gimmick, believing the right spectacles can make a sinister-looking murder suspect seem like a perfect gentleman.” “Glasses soften their appearance so that they don’t look capable of committing a violent crime,” veteran lawyer Harvey Slovis told the paper.”I’ve tried cases where there’s been a tremendous amount of evidence, but my client wore glasses, dressed well and got acquitted.” Cordero, who was represented by Slovis, wore bifocals throughout his trial, but threw them away the moment he was free.”

I’ve quizzed lawyers about the ethics of this tactic in my CLE classes, and they nearly unanimously agree that the tactic crosses no ethical lines that can be drawn with appropriate precision. I’m not so sure. I think it goes beyond merely giving your axe-murderer a shave and a haircut so he doesn’t look like an axe murderer, and edges into the realm of intentional deception. Apparently some courts may agree. Continue reading →

Forget Balancing: Lance Armstrong Is a Villain

/ Jack Marshall / 19 Comments

A constant conundrum faced by every culture is how it should categorize significant individuals whose positive contributions to society and civilization are marred by other acts that range from the unethical to the despicable. How much bad can a great man do and still be called “great”? How much wrong can a good woman engage in and still fairly be remembered as “good”? Can one wonderful act erase a lifetime of bad conduct? Are some bad acts so terrible that nothing can compensate for them? Every real human being is going to yield to some temptations, make some bad choices, be selfish, be cruel, lie, or worse. If we insist that all our heroes have an unblemished record in every aspect of their lives, we simply forfeit our heroes.

One reaction to this persistent dilemma is that we tend to be reluctant to look under the rock of a heroes accomplishments for fear that we will be disillusioned, or once the rock is lifted, we will attempt to rationalize into invisibility the ugly things we find there, or insist that they don’t matter. Of course they matter. It matters that Thomas Jefferson, who gave this nation its beating heart, didn’t pay his debts, cheated his friends and refused to live up to his own ideals. It matters that Clarence Darrow, who saved over a hundred men from execution, was a terrible father and husband and an unethical lawyer. It matters that Arthur Miller, whose plays dramatized the plight of the aging worker and the dangers of political persecution, rejected his mentally-challenged son, leaving him institutionalized and without contact from his father, though he knew who his father was. Charles Lindbergh, Jackie Kennedy, Diane Fossey, Thomas Edison, George Washington, Andrew Jackson, Frank Sinatra, Ted Kennedy, Pete Rose, Lillian Hellman, Walter Cronkite, Hillary Clinton—the list of the great, near-great, lionized and admired who behaved less than admirably or worse in significant ways can circle the globe. In assessing their character, as well as whether their lives deserve to be regarded as positive or negative influences on their society, fellow citizens and civilization, all we can do is apply a complex balancing formula, with factors in their lives weighted according to ethical principles, experience and our own priorities.

The question of how this balance should be applied has been raised in recent weeks in the wake of the final verdict on Lance Armstrong’s cycling career, which was decisively removed from the categories of “alleged misconduct,” “controversies,”and definitely “witch hunts” for all time as mountains of documentation, lab tests, and testimony moved it squarely into the categories of “outrageous cheating’, “criminal activity”, “corruption” and “fraud.” Continue reading →

Comment of the Day: “Unethical Website of the Month: Third Tier Reality”

/ Jack Marshall / 1 Comment

Okay, so you weren’t born on third base like this guy. It doesn’t mean you can’t score.

40 yr. old Gen-Xer delivers a worthy Comment of the Day, leveled at my criticism of the Angry Unemployed Law Grad blog, “Third Tier Reality.”  I think it provides valid perspective, though I also think the post’s characterization of how this issue has been handled on Ethics Alarms is somewhat unfair. (You can read my response under the original article.)

Here is the Comment of the Day, on the post, “Unethical Website of the Month: Third Tier Reality”:

“My point is that the situation Nando is railing about is more complex than the scenario of a bunch of disgruntled youth, unwilling to “work hard”, whining for a hand-out. Nando may pour it on thick with name calling and scatological imagery; fair enough. However, to dismiss the underlying message is overly simplistic, dismissive of people’s good-faith effort and ignores the real economic hardship that many face. Continue reading →

Unethical Website of the Month: Third Tier Reality

/ Jack Marshall / 119 Comments

Mr. Furious, of the Mystery Men

Third Tier Reality is one of many blogs recently founded by disappointed law graduates who somehow labored under the misconception that a law school degree guaranteed that they would get 6 figure offers from big law firms and then live the life of Denny Crane until they could retire to a Caribbean island at the age of 55. A depressing number of these deluded souls managed to get themselves in hock up to their eyeballs, and when the recession hit and law firms cut back, felt first, like fools, second, angry and desperate, and third, that it was everyone else’s fault. Thus was born the “law school scam” conspiracy theory. Third Tier Reality, like the others of its breed, maintains that law schools intentionally misled scores of trusting students to pay their obscenely high tuitions,  knowing that they were pumping out more lawyers than the legal market would bear.

To the extent that the site tries to educate would-be law students that there is no guaranteed gravy-train at the end of three years of law school, the website is, at worst, harmless. “My goal is to inform potential law school students and applicants of the ugly realities of attending law school,” he writes. His message: Do not seek a law degree unless…

“(1) YOU GET INTO A TOP 8 LAW SCHOOL; (2) YOU GET A FULL-TUITION SCHOLARSHIP TO ATTEND; (3) YOU HAVE EMPLOYMENT AS AN ATTORNEY SECURED THROUGH A RELATIVE OR CLOSE FRIEND; OR (4) YOU ARE FULLY AWARE BEFOREHAND THAT YOUR HUGE INVESTMENT IN TIME, ENERGY, AND MONEY DOES NOT, IN ANY WAY, GUARANTEE A JOB AS AN ATTORNEY OR IN THE LEGAL INDUSTRY.”

That’s all good advice, though it presumes that more people get law degrees under the delusion alluded to in (4) than I believe is true. Nobody ever told me that a law degree guaranteed a high-paying job as an attorney, and if we understood that decades ago when law was booming, I don’t see where the confusion set in. I worked in the administration of Georgetown Law Center, and that school never made such a representation. In addition, Third Tier Reality goes further, as its brethren blogs do, to insist that a law degree from less than a “First Tier” school is actually an impediment in the job market. I hate to kick this particular hornets nest again, but this is a self-serving rationalization for failure. Continue reading →

Incompetent Elected Official of the Week: Georgia Rep. Paul Broun

/ Jack Marshall / 25 Comments

Paul! See that guy holding the sign that says, “Atheists Go Back to Your Apes”? YOU COULD BE THAT GUY, PAUL!

An ignoramus and proud of it, Rep. Paul Broun (R-GA.) is apparently serving in Congress while waiting for a juicy role as one of the fanatically religious townspeople in “Inherit the Wind,” should a local production materialize. For it was good people like Broun, with his level of education, certitude and Godly conviction, who occupied the town of Dayton, Tennessee during the Scopes “Monkey Trial,” the famous legal battle over the teaching of evolution that inspired the fictional stage adaptation of the event authored by Jerome Lawrence and Robert E. Lee, perhaps the best high school drama club play that ever graced Broadway.

Those science-hating, God-loving people of Dayton’s  imaginary stand-in, “happy Hillsboro,” get to do a lot of revival meeting singing, and scream “Praise God” and “Read your Bible!,” and join in choral renditions of “We’ll hang Bert Cates from a Sour Apple Tree,” a reference to the play’s junior high science teacher, who, like the real John Scopes, dares to defy Tennessee law and teaches his students that the world isn’t only 9,000 years old, that Adam didn’t ride around on a triceratops and that mankind evolved from more primitive primates. Broun would be terrific at the singing and screaming, I’m sure. Continue reading →

ARRGH! “The Good Wife” Did It AGAIN!

/ Jack Marshall / 5 Comments

For God’s sake, Will! A) You just got off one suspension for unethical conduct—what are you DOING? B) They had to have taught you better than this at Georgetown Law!

“It” is misleading Americans who may be in litigation requiring settlement and who don’t know that lawyers cannot, must not and largely do not agree to financial settlement terms without getting the approval of their clients. I have dubbed this “The Hollywood Lawyer Fallacy,” and Will (Josh Charles) just did it again.

I know—every lawyer TV drama skips this part, as does virtually every movie about lawyers. Yes, I know it is done for pacing and dramatic purposes, that having a scene where the lawyers asks her client, “They’ve offered this amount, and I think we should take it, OK?” and the client says, “Sounds great!” just slows things down. But here is what repeatedly watching this inaccurate portrayal of  lawyers breaking one of the cardinal rules of the profession does: it sets up clients of incompetent lawyers to be misled, manipulated, and cheated. As I wrote the last time the otherwise ethically astute CBS drama did this while I was watching:  Continue reading →

Unethical Quote of the Week: CNN Morning Anchor Carol Costello

/ Jack Marshall / 5 Comments

“There was criticism when Jim Lehrer was initially named to be a moderator. People said: ‘oh, another white guy; he’s too old to be doing this; we live in a new world — we don’t need an old-fashioned journalist doing these things any longer.’”

—-CNN Morning host Carol Costello, communing with PBS head Paula Kerger over Mitt Romney’s (obviously correct) assertion that public support for PBS has got to go, and joining in the despicable Democratic spin that President Obama’s less-than-stellar performance in the first debate was moderator Jim Lehrer’s fault.

Worst of the worst? I mean, if you don’t count MSNBC?

Carol Costello, Soledad O’Brien; Soledad O’Brien Carol Costello. Who is the most biased, smug, unethical news host not on MSNBC? Just when I think O’Brien has locked up the prize, Costello comes roaring back with something like this.

She ought to be fired. It’s as simple as that. Her statement is racist and ageist in the worst sense or the words; her implication is an unforgivable insult to a veteran newsman infinitely her superior, and her the content of her statement is proof of a deficient mind. Fire her. The AARP should demand it; the Republican should demand it; the Democrats should demand it, and CNN should see it as essential to maintaining whatever shred of credibility and integrity it has left. Continue reading →

One For The “Innocent Until Proven Guilty” Crowd

/ Jack Marshall / 14 Comments

Stop scaring my dog!

A commenter recently pulled out the hoary and almost always misused “innocent until proven guilty” line, which reliably makes me scream, frightening the dog and the neighbors. Thus I was happy to see this September 28 ruling by the Louisiana Supreme Court, which found that Philip Pilie, a 2007 University of Georgia School of Law  who passed the bar examination in 2009, lacked the character and fitness to be admitted to practice in the state, despite the fact that he was not convicted of the crime that resulted in his disqualification.

Why? Because he did it, that’s why. Pilie contacted what he thought was a 15-year-old girl online and arranged to have sex. She was, unfortunately for Pilie, really a big, hairy, middle-aged man looking for predators who like to have sex with under-age girls. Pilie  was arrested at the planned rendezvous and charged with two  felonies,  computer-aided solicitation of a minor and attempted indecent behavior with a minor.

Pilie negotiated a deal with the district attorney to avoid prosecution. He completed a pre-trial diversion program including counseling, and all charges  were dropped. Pilie took and passed the bar exam, but was informed  in March 2009 that he lacked the character and fitness for admission to practice, because he trolled on computers for young girls to have sex with, by his own admission. His appeal to Louisiana’s highest court failed, twice.

In the latest decision, the court said that Pilie’s lack of a criminal conviction made no difference in its reasoning. “Had petitioner been a practicing attorney at the time of his misconduct, it is very likely he would have been permanently disbarred,” it wrote. “Given this fact, we can conceive of no circumstance under which we would ever admit petitioner to the practice of law.” Pilie was permanently barred from ever again seeking admission, without ever being “convicted in a court of law.” Continue reading →

“And Now We Welcome You To Another Episode of “As The Media Shrugs”! Elizabeth Faces Exposure As a Dishonest and Unlicensed Lawyer…Will She Finally Reveal The Truth? Will Voters Care?”

/ Jack Marshall / 13 Comments

“Nope, no way to Texas; can’t get to New Jersey…maybe I should just bite the bullet and get a Massachusetts law license? Nawww, who’s going to care?”

No major newspapers or broadcast news outlets seem to care, but what was originally dismissed as a partisan blogger’s over-reaching accusation has been bolstered by more than one smoking gun, proving Elizabeth Warren’s untrustworthiness and lack of fitness for high office.

Robert Eno of Red Mass Group, who joins Prof. William Jacobson as a blogger doing dogged and necessary research on the Massachusetts Senate candidate, has convincingly shown that Warren’s justification of her practice in Massachusetts, sans law license, doesn’t work, because what she says can’t possibly be true.

Earlier this week, Warren tried to rebut Jacobson’s allegations by explaining, “I haven’t practiced any law since 2010 since I went down to do the Consumer Financial Protection Bureau. I’ve been a member of the bar in Texas for all of my career, in the Supreme Court bar, and until a few weeks ago the bar in New Jersey.” Warren and her defenders also argued that Jacobson’s claim that she was operating a regular law office out of her Harvard faculty office, which would make her an unlicensed Massachusetts practitioner, was inaccurate. Warren periodically was involved in cases in Federal court, which did not require a  Massachusetts license, they said. All that was necessary for Warren to appear before various Federal Courts was for her to be duly licensed in a state or territory, and file a statutory request to the court to appear.

Warren’s problem: it is beginning to appear that she may not have been properly authorized to practice law anywhere, or, if she was, she had to be using her Harvard office as a regular law office, meaning that she was practicing Massachusetts law. Without a license.

Here is what Eno discovered:

1.  Warren says she has been a continuous member of the Texas bar,which is technically true but misleading. After following her constantly changing spin while explaining her undocumented status as an affirmative action beneficiary, I believe misleading us is her intent. Yes, she has been a member of the Texas bar during her whole career, but during most of that period she was not allowed to practice Texas law, which was the topic under discussion when Warren cited her membership. Kim Davey the Public Information Officer for the State Bar of Texas told Eno that Warren has been on inactive status in Texas since June 1, 1992. Inactive status means a lawyer is not authorized to practice law. Warren says that she only stopped practicing law (while living and working  in Massachusetts) in 2010, which means that she could not rely on her Texas license while she was at Harvard.

2. Thus it must have been her New Jersey law license that made Warren eligible to appear in Federal Court. But there’s a problem there, too. New Jersey rules hold that a lawyer can only be a licensed attorney in good standing in New Jersey if that lawyer maintains a bona fide office for the practice of law. The office can be in any state, but it must qualify as a law office, or New Jersey’s license to practice law is no longer valid.

This means that Warren is mired in a Catch 22. If, as her defenders and Warren have maintained, she was not engaged in the practice of law because her Harvard office did not constitute  “a systematic and continuous presence in Massachusetts for the practice of law” (because Warren was just a typical Harvard law professor who now and then helped write a few briefs for the U.S. Supreme Court and out-of-state federal courts), then she could not meet New Jersey’s licensing requirements, and was practicing law without any valid law license in any state once she went on inactive status in Texas. If, in the alternative, her Harvard office was a bona fide office for the practice of law, rather than a place where she just “dabbled,” then she was practicing in Massachusetts without a Massachusetts license. Continue reading →

More Revelations Regarding Elizabeth Warren’s Alleged Unauthorized Practice of Law, and Why This Matters

/ Jack Marshall / 36 Comments

Prof Jacobson, on his blog Legal Insurrection, is in line for an Ethics Hero award with his tenacity regarding Elizabeth Warren’s dubious qualifications to engage in the practice of law in  Massachusetts. The overwhelming reaction by his colleagues in legal academia, and mine in the legal ethics community, has been to airily dismiss his arguments as trivial, far-fetched and thinly disguised political warfare, since Jacobson is an unapologetic conservative blogger (and a distinguished one.) Meanwhile, the mainstream media has, I think it is fair to say, completely ignored the story.

Part of this is undoubtedly because of the ignorance of most journalists regarding the importance of the legal ethics rules in question. Part of it is probably due to the accurate assessment by editors and TV news producers that the average American’s brain would switch off right around the time the story mentions Massachusetts Rule of Professional Conduct Rule 5.5 Subsection (c), and will start wondering about how Blair from “The Facts of Life” is going to do on “Survivor.” And part of it, infuriatingly, is because most journalists are willing to forgo the ethical duties of their profession in order  to ensure that a Democrat wins back Ted Kennedy’s Senate seat, and character be damned.

The rude brush off Prof. Jacobson is getting in this wagon-circling exercise is wrong in every way, and does injustice to every person and institution involved, including the Massachusetts legal establishment, the legal profession, ethical lawyers (which, believe it or not, the vast majority of them are), Senator Brown, the U.S. Senate, Massachusetts voters, and the American public. Bar associations across the country regularly punish ordinary lawyers who practice law without proper authorization, and there is a reason: a lawyer who won’t or can’t obey the most basic requirement of the profession—be sure you are practicing law legally—should not be trusted to handle the important transactions and controversies of their clients’ lives. Continue reading →