Category Archives: Professions

Morning Ethics Warm-Up, 1/8/2018: Regrets, “It Rings True,” Bannon The Weasel, And “But It Would Be Wrong…”

Good Morning, everyone!

1 On the other hand, “Bite me!” I find myself feeling bad about a Facebook retort yesterday laying out an old friend, also a former Democratic official’s staff member, for taking a snide shot at my “bias” after my answer to a query about anti-Trump legal ethicist Richard Painter. Painter has been on the “remove Trump by any means possible” bandwagon since the 2016 election, and because he was an ethics advisor to the Bush White House, he has been a favorite go-to source for CNN and MSNBC while authoring bizarre op-eds that distort the Constitution.  My response about Painter was that he has apparently been driven mad by the whole Trump experience, and is now in the process of wrecking a very fine reputation as his colleagues in the field, like me, roll their eyes and weep. (Painter is a Bush family loyalist, and the guessing is that he is following the lead of the two Georges, who hate Trump to pieces.) Yes, Richard was among the first to advocate Plan E, removing Trump because he is “unable” to do the job, so he’s especially hot right now.

I feel bad because I’m a nice guy, but I’ll be damned if I will put up with being called “biased” for correctly pointing out what is dishonest and wrong about the various plots to circumvent the election. It’s not a “bias” to believe that an entire party attempting to undermine an elected President is wrong, and that lawyers and ethicists who pander to that mob have slipped a professional cog. I sent my friend to this website to find any evidence that I am a Trump fan, other than being the apparently rare critic who will give the President credit when he deserves it, and who will defend him against fake news and dishonest accusations. I’m a passionate supporter of U.S. values, the system, our institutions, the Presidency itself and elections. That’s not bias. That’s called being an ethical citizen.

2. Signature significance for a weasel. Five days after his reported quotes in “Fire and Fury” including one accusing Don Jr. of “treason” caused President Trump to slam him on Twitter, former White House aide and Breitbart power Steve Bannon sent an “apology” to Axios, of all places. This is known as ” crawling back.” Bannon, while at the White House, leaked to reporters and played both ends against the middle to further his own agenda, and betrayed the President’s trust and confidence by aiding and abetting sleazy political gossip-monger Michael Wolff.  Now, after Bannon’s split with Trump has obviously cost him support, influence and credibility, the man who chomped on the hand that fed him wants a do-over. Only the worst species of unethical and unprincipled weasel would try something like this. If he genuinely regretted the quotes, he would have  immediately said that they misrepresent him, and repudiated them. Waiting five days makes it clear that Bannon was waiting to see how the episode was playing in the media and public to decide whether to stand by his own words or not. The short version of this is: “Integrity? What’s that?”

Moreover, the text of the “apology” shows that Bannon isn’t very bright. Why bother looking pathetic and weak if you aren’t even going to do it effectively? He doesn’t even apologize:  he says that he regrets his “delay in responding to the inaccurate reporting regarding Don Jr has diverted attention from the president’s historical accomplishments in the first year of his presidency.”

Ha! I bet he does. But this is a Level 10 apology on the Apology Scale:

An insincere and dishonest apology designed to allow the wrongdoer to escape accountability cheaply, and to deceive his or her victims into forgiveness and trust, so they are vulnerable to future wrongdoing.

3. Is expressing “regret” the same as an apology? Let’s look closely at which mainstream media outlets call Bannon’s statement an “apology.” Axios does. When President Obama was making his so-called “apology tour,” as it was dubbed by the Right, journalists rushed to his defense, arguing that saying in multiple nations that he “regretted” the policies of his predecessors and the past actions of the United States was not the same as apologizing for them.

4. Somewhere, Dan Rather is smiling...I’m putting this in the Warm-Up because, as you may have noticed, yesterday’s posts were dominated by “the resistance’s” Plan E and the news media’s dutiful assist by hyping “Fire and Fury.” Incredibly—yes, I’m an idiot: the degree to which the news media will abandon core journalism ethics if it means bringing Trump down still surprises me–there was little effort on the news shows yesterday to hide the fact that much of Wolff’s book is unreliable,  and that the author admits it. Nonetheless, they reported on the salacious quotes and accounts, debated in panels whether it “proved” the President is disabled, and generally presented the book to the public as fact, not fiction.

How can journalists possibly justify this? It can’t be justified, but the news media’s anti-Trump bias has made them stupid and incompetent.

For example, CNN MEDIA ETHICIST—I have to place both hands over my head to prevent an explosion when I type that, which means I have to type with my noseBrian Stelter tweeted,

Big picture point: Wolff’s errors are sloppy, but many Trump experts say the book “rings true” overall.

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Comment Of The Day (1): “Public Confidence And Trust (1): Observations On Gallup’s Trust In Occupations Poll”

My post on the Gallup poll on public trust in various occupations and professions strayed into Charles Green’s wheelhouse, and the resulting home run comment enlightened us regarding why nurses keep “winning” the poll as the most trusted year after year after year.

Here is Charlie’s Comment of the Day on the post, Public Confidence And Trust (1): Observations On Gallup’s Trust In Occupations Poll:

Speaking just to the nursing angle: my work on trust has involved a diagnostic tool, the TQ (Trust Quotient), a self-assessment of the four components of trustworthiness in the Trust Equation:
(Credibilty + Reliability + Intimacy) / Self-Orientation.

70,000 people have taken it, and three results stand out above all others.

First, women are more trustworthy than men – a finding confirmed by informal polls in 397 out of 400 groups I’ve presented in front of.

Second, the most powerful factor of the four (defined as the highest coefficient in a regression equation) is Intimacy.

Third, the bulk of women’s outscoring men is their higher score on the Intimacy factor (again, intuitively true to the vast majority of groups I ask).

It’s in this context that I note the Gallup work (and other pollsters) finding of nursing at the top of the heap every year but 2002 (which was, not coincidentally, the year after 9/11 – and a year in which firemen, if only for that one year, took over the top spot.

Nursing is an 89% female profession. I ask my audiences, “Which of the four trustworthiness factors do you think nurses most embody: credibility, reliability, intimacy, or low self-orientation?” Most pick intimacy (with low self-orientation a frequent second).

Add ’em up: female, Intimacy, nursing – it’s a trifecta. Continue reading

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A Vermont State’s Attorney Prosecuted A College Student For An Overheard Phone Call. Why Is She Still Employed?

In October of last year, police charged Wesley Richter, a University of Vermont continuing education student, with disorderly conduct after university officials said he used “explicitly racist and threatening language” against black students and diversity initiatives on campus. Richter was overheard in a phone call with his mother, though exactly what Richter allegedly said has not been made public.unknown. Of course, what he said doesn’t matter, unless he was planning a crime, which he was not. He was talking to his mother, and a student who overheard the discussion took offense at what was said. Richter, through his lawyer, denied saying anything racist, but again, it doesn’t matter. Saying racist things in a phone conversation cannot be a crime. It’s bad manners. It’s disrespectful to those listening. A school may be able to justly find some kind of violation to a reasonable and neutral civility code involving words but not content. But an overheard phone conversation cannot be a crime. It is mere words.

Nevertheless, the University of Vermont, the University of Vermont Police Department and the Chittenden (County) state’s attorney’s office in the person of Sarah George, the State’s Attorney, prosecuted the case against Richter. George is a graduate of the University of Vermont Law School, where presumably they taught constitutional law. There is no excuse for this.

Richter’s lawyer, Ben Luna, argued that George didn’t have probable cause to bring the misdemeanor charge, and Superior Court Judge David Fenster agreed. In a statement, Luna called the dismissal a victory for free speech and the First Amendment. “The court’s ruling reinforces my opinion that this matter should never have been brought,” he said.

The court’s ruling also reinforces my opinion that Sarah George should be disciplined by the bar and fired.

Right at the start, Vermont’s Rule 3.8, as in every other state, makes it clear that prosecutors must not charge anyone with a crime without probable cause:

Rule 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

The Comments to the rule say in part,

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.

The First Amendment makes it beyond argument that the government may not punish or seek to punish citizens for the content of their speech. Since the only evidence that George had that a misdemeanor had been committed was a third party complaint about the content of Richter’s speech in a conversation over the phone with his mother, she did not have legal or sufficient evidence to charge or prosecute Richter. As a lawyer and a prosecutor she had to know that. If she knew it, she was knowingly abusing her power, and should be suspended from the practice of law.

If she didn’t know it, then she is incompetent and not fit to practice. She should be fired.

Incredibly, George said she thought the case was strong, but that it was also “a learning experience.” “It’s disappointing, but it’s also good for us to know. It’s a really great decision for us in terms of case law and reasoning, so we know now what this court expects of us,” George said.

Yeah, the court expects you to follow the Constitution. If you have to learn that at this late stage in your legal career, Sarah, you need to go back to the drawing board. Maybe you can sell maple syrup.

She wasn’t through. “What we allege he did, we still allege he did,” she continued.  “It just didn’t rise to the level of a hate crime.”

A phone conversation cannot be a “hate crime.” Speech cannot be a hate crime. “Hate speech” is not a legal designation.

Why is this woman a state prosecutor? Fire her.

If she is not fired, then this totalitarian, illegal, abusive and intimidating prosecution chills free speech, not just on the University of Vermont campus, but in the whole state. A citizen should not have to wait two months, as Richter did, for a judge to declare that the state cannot persecute him for what he is overheard saying, whatever it is.

Fire

Her. Continue reading

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Morning Ethics Warm-Up, 1/4/2018: A Frivolous Lawsuit, An Unscripted Actress, A Lesson In Assuming, And Fake News

Good Morning!

1 On feminist integrity. The reader poll on the post about the interesting silence of US women’s rights organizations and their component feminists as their Iranian sisters protest oppression in Iran has already had more participation that the last four Ethics Alarms polls combined. Why is that? In more news related to that post, some determined spinners here claimed that the feminists have been burning up the blogs and websites with supportive essays and blog posts, so the radio silence is a myth. No, THAT was a myth: there is nothing on those sites, or if there is, it didn’t surface when I checked Ms., Jezebel, NOW and four prominent blogs. (Update: Reader Humble Talent has checked two more. Also nothing.)

Please don’t make up stuff or assume facts you haven’t checked when you don’t want to accept reality, friends. It’s not fair, and it’s not ethical debating practice. Because I trust and respect the commenter in question, I just assumed she was right, because I assumed she had checked. No, it appears she had assumed, and was not right.  And you know what Felix Unger proved happens when you assume..

2. This is why they give actors scripts. I enjoy actress Meryl Streep as an artist, but for me she is fast entering Alec Baldwin territory, a performer whose personal character deficits are becoming so overpowering that even her undeniable talent can’t make watching the performer on screen endurable. Streep is in a deep hole she keeps digging. Being a Harvey Weinstein acolyte and beneficiary for years (and a Roman Polanski apologist), she is denying culpability as an enabler of his serial sexual predation because, she says, she didn’t know. Almost nobody finds her denial credible. Yesterday the Times published a joint interview with Streep and her “The Post” co-star, Tom Hanks. Told by the interviewer that in light of the doubts about what she knew, the public wants to hear more from her, she responded,

“I don’t want to hear about the silence of me. I want to hear about the silence of Melania Trump. I want to hear from her. She has so much that’s valuable to say. And so does Ivanka. I want her to speak now.”

Streep locks up the 2018 Whataboutism of the Year title with that one, along with adding a ridiculous sentence into my personal collection of statements that deserve note because they had never been said before in the history of the English language. I started my collection decades ago at a family Thanksgiving dinner, when my sister said, “You know, the fish looks so good, I think I’ll wear my bra on my head.” And a collection was born.

“I don’t want to hear about the silence of me” has an elegant simplicity about it. In addition to being a strange sentiment, Streep also misses the whole concept of an interview—surprising, since she has done so many of them. See, Meryl, these questions are about what the public wants to hear about, not what you want to hear about. Was that really unclear to you until now? This was not an open invitation to announce all the things you’d like to hear about that have absolutely nothing to do with Harvey Weinstein. This is “Look! Squirrel!” carried to a demented extreme. Streep revealed herself as seriously Trump Deranged, as she thinks that the way out of every personal crisis is to declare, “But what about TRUMP????”

Looks like I won’t be watching “The River Wild” again. Pity. (I won’t watch “The Dear Hunter” again either, but then you never could have made me watch that thing a second time, not under torture or extortion.)

3. Now THIS is a frivolous law suit.  From CNN:
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Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading

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From The Ethics Alarms “Deceit Is Lying, And Stop Saying It’s Not!” Files: Baseball Commissioner Rob Manfred Is An Ethics Dunce, So Is Craig Calcaterra, And Since They Are Both Lawyers, They Should Know Better

My goals are modest. Before I die, I would like to be able to say that my cyber-output on ethics accomplished a few basic things. One of them is a greater public understanding that deceitful statements—you know, like “I did not have sex with that woman,” or my recent favorite, knife-murderer O.J. Simpson saying  at his parole hearing, “I’m in no danger to pull a gun on anybody. I’ve never been accused of it. Nobody has ever accused me of pulling any weapon on them”—are lies. Not “technically true,” not “lawyerly phrasing,” but lies. Yesterday one lawyer who should know better incorrectly told his readers than another lawyer who engaged in deceit wasn’t lying. I’m sick of this.

I’m sure most of you don’t know or care, but the sad Miami Marlins, the National League baseball team recently taken over by a group headed by former Yankee shortstop Derek Jeter, has been selling and trading off its best players to pare expenses to the bone. This is a long-term strategy called “tanking,” in which a team rebuilds by playing horribly and getting high draft choices for a few years, eventually building up a young, cheap talent base of a winning team. A team’s fans tend to despise this approach, and Marlins fans more than most, since this is the third mass sell-off in the team’s short and ugly history.

MLB commissioner Rob Manfred appeared on Dan LeBatard’s ESPN radio show yesterday to discuss the most recent recent Miami fire sale.  LeBatard asked Manfred directly if he was “aware of Jeter’s plan to trade players and slash payroll.” Manfred ducked and weaved, and said, “We do not approve operating decisions by ownership, new ownership, current owners or not, and as a result the answer to that question is no.”

LeBatard called  this a lie, responding, “You can’t tell me you’re not aware of this…were you aware of this?”  Manfred then said, “No, we did not have player-specific plans from the Miami Marlins or any other team . . .” He also said that the league did not see a payroll plan from the Marlins “until two days ago.”

Yet  the Miami Herald reported after the interview:

A source directly involved in the Marlins sales process, after hearing the Le Batard interview, said, via text: “Commissioner said was not aware of [Jeter] plan to slash payroll. Absolutely not true. They request and receive the operating plan from all bidders. Project Wolverine [the name for Jeter’s plan] called on his group to reduce payroll to $85 million. This was vetted and approved by MLB prior to approval by MLB. Every [Jeter] investor and non investor has the Wolverine financial plan of slashing payroll to $85 million. Widely circulated.”

Here NBC baseball blogger Craig Calcaterra, formerly a practicing attorney, and thus accorded some credibility on such topics, wrote, Continue reading

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The Unprepared Judicial Nominee [Updated]

 

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading

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