Professions

Down The Slippery Slope To Lawyer Censorship: First Giuliani, And Now This

/ Jack Marshall / 5 Comments

silence

Rudy Giuliani, as discussed here, was just suspended from the practice of law on the basis of out of courts statements that the New York bar disagrees with, while representing a client they hate (Donald Trump), using a standard that has never been applied to a lawyer before.

Yet what was just done to South Carolina lawyer David Paul Traywick by the state Supreme Court was even worse, and more ominous. The Court ordered his suspension from the practice of law based on social media posts that were pure opinion, and that had no connection to the practice of law at all. Traywick lost his license for six months. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by “re-education” authorities.

The Court felt justified punishing him after the South Carolina Office of Disciplinary Counsel received complaints from 46 people about Traywick’s Facebook posts. The posts were accessible to the public, and his profile identified himself as a lawyer while mentioning his law firm his law firm.

The Court found twelve posts by Traywick “troubling.”I will interject here that an individual’s statement on social media are none of a court’s business, indeed none of its damn business, unless they are libelous or criminal, or evidence in a case before it. None of the posts fit into those categories. Two of the posts nonetheless triggered the suspension:

  • On April 5, 2020, Traywick posted what the Court calls “an offensive comment regarding tattoos,” apparently so offensive the the opinion won’t even enlighten us to what it was. After whatever it was he was saying about tattoos, which could have only been an opinion, he  challenged his readers, “Prove me wrong. Pro tip: you can’t.” In a subsequent post in response to a comment, he wrote, “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!”
  • On June 3, 2020, at the peak of the George Floyd Freakout, they lawyer posted, also on Facebook,  “Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.“

By no stretch of the imagination or the Rules of Professional Conduct do those statements justify suspending a lawyer’s right to practice law. It is protected speech under the First Amendment. It does not involve the practice of law. The comments are profane, but profanity is not grounds for discipline out of a legal context. They are vulgar, but the same hold with those. They may offend readers, but nobody is forcing readers to follow this jerk. The lawyer appears, based on his comments, to be an asshole, but being an asshole is not a disqualification for practicing law. It is often an asset, some might say. He may have been lying, but not in any way that could be linked to his trustworthiness as a lawyer, and lies are also protected speech unless they constitute fraud or perjury.

Yet the Court wrote,

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Re Rudy Giuliani’s “Interim Suspension”

/ Jack Marshall / 24 Comments

rudy_giuliani_ap

New York’s Supreme Court took the draconian step of suspending Rudy Giuliani, former federal prosecutor, former mayor of New York City, and counsel to former President Trump, from practicing law based on his statements, allegation and, in some cases, presentations in court and court documents, regarding the 2020 election and his clients claims that it had been “stolen.” From the opinion:

“For the reasons that follow, we conclude that there is uncontroverted evidence
that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC
or Committee).”

Note that Giuliani has been suspended before the completion of an investigation of the claims against him, or a hearing, based on a conclusion that the public is literally endangered by the possibility of his continuing to make the same claims that former President Trump and many others are making in public every day. The stated justification for the extremely rare interim suspension never explicitly made clear: exactly what is the danger to the public that justifies this? The Supreme Court of the State of New York is simply continuing the false narrative that there was a “violent insurrection” by misguided members of the public on January 6 caused by the insistence of the President and others that the election was “stolen” by the Democrats, and Trump was really elected. Indeed, the Court writes,

“One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”

I shouldn’t have to point out that neither Trump nor any non-lawyers making the “stolen election” claim have been or can be punished by the the Courts or the government, but the New York Bar’s Rules of Professional Conduct can be used to do just that to Giuliani for serving a client the judges don’t like (they are all Democrats). To justify this, the opinion uses the fact that a lawyers’ speech is more subject to regulation than normal citizens because of their “persuasiveness,” supposed trustworthiness as members of a profession that is forbidden from lying, and bootstraps its argument by noting that the real purpose of the Rules us not to punish lawyers, but to protect the public. That is true, but the purpose is to protect the public from being represented by bad and untrustworthy lawyers, or substantively harmed by lawyers assisting criminal or predatory clients, not to muzzle lawyers from making controversial statements in the public square.

This case has been the subject of much debate by my legal ethicist colleagues of late, with a depressing near-consensus that Rudy is getting what he deserves. This is because, I detect, the vast majority of lawyers cannot see through their political biases and Trump hate. At the most simple level, the ruling is premature because contrary to the Court’s certitude, all of the evidence is not in, though the claim that there was widespread election fraud and that the election was “stolen” has for many months been pronounced “a lie” by Democrats and the mainstream media with suspicious vigor. While the opinion makes a convincing case that many of Giuliani’s statements, including some made to courts and government bodies, were careless, sloppy, badly sourced, unprofessional and wrong, it cannot know at this point that his (or Trump’s) general claim is false. If its is not false, then raising doubts among the public cannot be called dangerous to the public. It is more dangerous to keep opinions, arguments and ideas from the public’s awareness “for their own good.”

Thus this is a First Amendment problem. Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. The Court’s focus is almost entirely on Giuliani’s public statements on the radio, in podcasts, on TV shows and news interviews. Alan Dershowitz, along with Jonathan Turley among the very few well-known lawyers (and Democrats) who have managed to maintain their integrity during the nearly five-year attack on Donald Trump, reacted to the interim suspension by telling Breitbart (which I will not link to after being burned to many times),

“I taught legal ethics for, I don’t know, 35 years at Harvard Law school. I think of myself as a leading expert on legal ethics. I’ve never ever seen a case where a lawyer was essentially disbarred … without a hearing. The most basic concept of due process is you don’t deprive somebody of his living, of his freedom, of his ability to work without a hearing. And then the criteria under which they suspended his law license is so vague. It says in the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. In other words, if he goes on your show, or he goes on my podcast, or he goes on Fox or anywhere else, and he makes a statement which turns out to be false, and he had reason to believe it was false, he could be disbarred. Do you know how many lawyers we’d have left if we applied that standard across the board? … We have case after case after case where prosecutors, defense attorneys, lawyers of every kind, have made statements … which turn out to be untrue, and they’re never disbarred. And certainly not without a hearing. And so, this is a first. …The atmosphere is such today that if you defended President Trump in any way, they’re out to get you. And they’re certainly out to get Rudy Giuliani.”

In other words, the suspension is a politically motivated silencing. I strongly suspect that anti-Trump bias was at the heart of this slap at Giuliani, as Dershowitz says. Turley, in a piece for The Hill, expressed similar concerns:

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America Last: Good News And Bad News At The Same Time

/ Jack Marshall / 10 Comments

Reuters-Survey-Trust-In-Media-June-2021

As you can see in the chart above, a report released by the Reuters Institute for the Study of Journalism at Oxford and the University of Oxford found that out of 46 nations surveyed the US public ranks last in its trust of the news media at 29%. The study surveyed 92,000 news consumers in those countries. Finland finished first with a trust rate of 65%.

I doubt that Finland’s journalists deserve that much more trust, which is one reason the report is good news for the United States. I think it is highly likely that the journalists everywhere else suffer from the same arrogance, relative lack of intellectual depth, and hive-mind leanings as U.S. journalists. I think that the U.S. public’s lack of trust shows growing and essential understanding of the true nature of what has become a corrupt and dangerous false profession that does not serve the interests of the people as it is pledged to according to journalistic ethics, but its own. Nor do I believe the U.S. has the worst and most unethical journalists in the world—far from it, I suspect. The U.S. has the journalists with the most freedom, making it especially easy to do their job as dishonestly as they do; yet unlike in many of those nations, their government isn’t forcing American journalists to substitute spin, distortion and propaganda for the truth.

The U.S. public has, finally, had its blinders ripped off, and is no longer under the delusion that they are being informed by altruistic and dedicated pros who only seek to reveal the facts necessary for us to live our lives as we choose to. Knowledge is power, and while our news media is wielding their control over knowledge to transfer power to their political allies, the public, at least most of it, has acquired crucial knowledge to neutralize it: the knowledge that that are not trustworthy.

Unfortunately, the bad news aspect of the study’s finding is arguably worse than the good news is encouraging. Democracy cannot function without a trustworthy news media, or as the Founders called it, “press.” Journalism rot is an existential threat.

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No Good Guys Or Innocent Victims In The Tucker Carlson-New York Times Spat

/ Jack Marshall / 8 Comments

Carlson 3

Apparently the New York Times got tired of Tucker Carlson’s two faces, so media reporter Ben Smith did a hit piece on the Fox News star. He revealed that Tucker, despite his oft-expressed disdain for the mainstream media and its reporters, “spends his time when he’s not denouncing the liberal media trading gossip with them. He’s the go-to guy for sometimes-unflattering stories about Donald J. Trump and for coverage of the internal politics of Fox News (not to mention stories about Mr. Carlson himself).” Smith adds, “I won’t talk here about any off-the-record conversations I may have had with him. But 16 other journalists (none from The Times; it would put my colleagues in a weird position if I asked them) told me on background that he has been, as three of them put it, ‘a great source.’”

In other words, Carlson is a hypocritical double agent. condemning the mainstream media on his TV show and doing favors for them behind the scenes. One especially nauseating tale is how Tucker related a private conversation with President Trump that made Carlson look good and Trump look foolish for an coming book by the Wall Street Journal reporter Michael Bender, “Frankly, We Did Win This Election: The Inside Story of How Trump Lost.” Since only two people were on the line, and Trump didn’t reveal it, Carlson is the only possible source. But the whole article is nauseating, including the casual way all the participants excuse such “double games” as business as usual. Everybody does it, you see, so it’s OK. “It’s so unknown in the general public how much he plays both sides,” one reporter for a prominent publication who gets dirt from Carlson regularly told Smith. Another Washington journalist explained how Carlson benefits by assisting the same reporters he says he “hates,” saying, “If you open yourself up as a resource to mainstream media reporters, you don’t even have to ask them to go soft on you.”

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Unethical Quote Of The Month: American Bar Association President Patricia Lee Rufo

/ Jack Marshall / 18 Comments

Rufo

 

“The American Bar Association is deeply troubled by the recent proliferation of hate speech directed against members of the Jewish faith and at LGBTQ, Asian American and Muslim communities. Such hateful behavior, coming in the wake of attacks on African Americans and other groups, have serious consequences as studies show a correlation between exposure to hate speech and the increase in hate crimes. Hate speech also serves to legitimize intolerance, reinforce stereotypes and further discrimination. We must not let any messages of hatred be normalized if we hope to advance the rule of law to achieve an inclusive society.“

Patricia Lee Rufo, the 2021 president of the American Bar Association, in an official statement last week.

This is disgraceful, and in so many ways. Imagine: the head of the largest lawyers’ association in the country authored that collection of vagaries, buzz words and wokisms in a naked virtue-signaling exercise with no substantive value at all, but with significant sinister potential. Worse, nobody at the ABA had the guts or integrity to tell her, “Uh, Patricia, that’s just plain embarrassing. We can’t put our name on that!” Also…

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Morning Ethics Warm-Up, 6/21/2021: Happy Birthday U.S. Constitution! [Corrected]

/ Jack Marshall / 10 Comments

Constitution signing

On this day in 1788, habitually cantankerous New Hampshire became the ninth and last required state to ratify the Constitution of the United States and make it the law of the land. December 7 of 1787 had seen Delaware, New Jersey, Pennsylvania, Georgia and Connecticut quickly signed the document. But Congress had voted that at least 9 of the 13 former colonies had to sign on before the document was considered adopted. New Hampshire, Massachusetts and the remaining states opposed the document, as it failed to reserve sufficient powers to the states and did not protect individual rights like freedom of speech, religion,the press, and the right to bear arms. In February of 1788, New Hampshire, Massachusetts and other states agreed to ratify the document with the promise that necessary amendments would be developed and proposed. The Constitution was ratified based on the compromise by Massachusetts, Maryland and South Carolina, making 8. New Hampshire made nine. The first Congress under the new Constitution adopted 10 amendments, the Bill of Rights, and sent them to the states for ratification. Rhode Island, which opposed federal control of currency and was critical of compromise on slavery, was the last hold-out; the U.S. government had to threaten to sever commercial relations with the state to force it to sign on. Finally, on May 29, 1790, Rhode Island voted to become the last of the original 13 colonies to join the United States of America.

Today the U.S. Constitution is the oldest written constitution in operation in the world, and the only one predicated on ethical principles, thanks to the Bill of Rights.

I would have preferred to see Constitution Day made a national holiday over “Juneteenth,” since it was the principles laid out in the Constitution, along with the Declaration of Independence, that eventually led to the elimination of slavery, and the document has been the backbone of our republic’s epic success in other respects as well.

1. “Larry Vaughn Day”? I regret not noting yesterday that it was the anniversary of the release of “Jaws,” a milestone in American cultural history. It is also an ethics movie, and one that pops into my mind often, since the irresponsible conduct of the weaselly mayor of Amity, Larry Vaughn (Played by Murray Hamilton, who made a career of portraying human weasels), remains SOP for so many elected officials, locally and nationally, and also the leadership of corporations, associations, industries, sports, universities and <cough> religious organizations. Ethics Alarms has a Larry Vaughn tag, and I should have used it in dozens more articles than I have. He is the perfect symbol of leadership that, in the words of Matt Hooper (Richard Dreyfuss) will always “ignore this particular problem until it swims up and bites you in the ass.”

The U.S. could benefit greatly from a “Larry Vaughn Day” on June 20 in which every elected official and organizational leader be required to watch “Jaws.”

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

/ Jack Marshall / 11 Comments

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…

/ Jack Marshall / 22 Comments

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

/ Jack Marshall / 1 Comment

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?

/ Jack Marshall / 3 Comments

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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