Professions

Now Featured In The Left’s Attack On Freedom Of Speech: Doctors Censoring Doctors

/ Jack Marshall / 19 Comments

Gee, why would officious authoritarian egomaniacs who think they are God try to do something like that?

The New York Times reports that medical groups are agitating for state boards to discipline physicians spreading “misinformation.” The Federation of State Medical Boards, which represents the groups that license and discipline doctors, recommended last month that states consider suspending or revoking medical licenses of doctors who share false medical claims.

The American Medical Association says spreading misinformation violates the code of ethics that licensed doctors agree to follow. “”Misinformation” is defined by Ethics Alarms as opinions that do not comport with the majority opinion in the profession, with the added qualification that such non-conforming opinions are considered especially worthy of censorship if they offend the political Left, which is where the AMA hangs its metaphorical hat.

The medical association, like its allies, are increasingly unashamed aspiring totalitarians. In this post from April, I wrote about how the AMA issued a statement that it was “deeply disturbed” and “angered” by a recent Journal of the American Medical Association podcast that “questioned the existence of structural racism.” Though JAMA supposedly has editorial independence from the AMA, the association forced JAMA Editor-in-Chief Howard Bauchner to ask for the resignation of podcast host and deputy editor Dr. Edward Livingston because his statements and tweets were “inconsistent with the policies and views of AMA” and “structural racism in health care and our society exists and it is incumbent on all of us to fix it.”

“Structural racism in health care and our society exists and it is incumbent on all of us to fix it” is what the medical profession now calls a “fact.” What the medical profession’s censors are really after is lockstep ideological conformity, using the power to take away the means of contrarians to earn a living as a bludgeon. The Times article would be amusing it it wasn’t so ominous. How can a doctor or a journalist call anything said about the Wuhan virus and its friends “mis-” or “dis-” information, when so many “facts” have been promoted to the public by health experts and then been retracted, reversed, qualified or otherwise contradicted? Dr. Fauci admitted that he deliberately lied to the public about whether masks protected the public from infection. Do you think any state broad will try to take his license away? No, because he’s one of the good doctors, and his misinformation is a means to a just end.

I am pretty certain that any effort to silence medical professionals who espouse controversial opinions will be struck down even by liberal judges, and that the medical groups advocating censorship know it. What they are really trying to accomplish is prior restraint, intimidating non-conforming doctors into keeping quiet by raising the specter of discipline. It’s the ethical equivalent of extortion.

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Shameless Self-Promotion Dept: “Legal Ethics Serenade”

/ Jack Marshall / 1 Comment

mike-messer

Tomorrow at 9 am, I’ll be launching the latest ProEthics musical CLE (Continuing Legal Education) seminar for the New Jersey State Bar. It’s called “Legal Ethics Serenade,” and is being zoomed. As with my other musical presentations, the great Mike Messer accompanies himself on guitar and occasionally other instruments as he belts out parodies of rock and pop classics retooled to raise complex legal ethics issues. Mike has been my muse for more than a decade. This time, he’ll be doing versions of “I’m a Believer,” “Oh Darling,” “Hello Mary Lou!,” “50 Ways to leave Your Lover,” “I’d Like To Teach The World To Sing,” “Why Don’t We Di It in the Road?,” Elvis’s “Are You Lonesome Tonight?,” “You Were Always On My Mind,” and “Take Good Care of My Baby,” all followed by legal ethics musings by me, and, I hope, lively debate.

If any readers are New Jersey lawyers in search of ethics credits, the information is here.

We now return you to our usual programming…

Evening Ethics, 8/19/2021: Those Were The Days…

/ Jack Marshall / 11 Comments

Ah, those heady days when the U.S. felt ethically justified in toppling governments it didn’t approve of, and “nation building” was still considered practical and virtuous. Today marks the anniversary of the U.S. overthrowing the government of Premier Mohammad Mosaddeq and reinstalling the Shah of Iran in 1953, The Shah was a torturing, oppressive autocrat, but he was our torturing, oppressive autocrat for 26 years, a dependable anti-Communist ally of the United States until a revolution ended his rule in 1979. You should know the rest. Wonder why Iranians aren’t crazy about the U.S.? Today is one big reason. Also on the ethics regrets list is the release of the West Memphis Three on this date in 2011. I wrote about that one here. An excerpt:

“In an ethical system, prosecutors would have made certain the wrongfully convicted men were freed, without any further adversary action. But this was not an ethical system. Instead, prosecutors insisted on a bizarre plea deal in which the Memphis Three agreed to take an Alford plea, a strange, dishonest and much criticized guilty plea in which a defendant essentially lies to avoid an otherwise unavoidable unjust punishment. With an Alford plea,  the prisoner or defendant asserts he or she is innocent, but acknowledges that the prosecution has sufficient evidence to prove guilt beyond a reasonable doubt, and thus acknowledges legal, though not actual, guilt.   Prosecutors insisted that all three men plead “guilty” in this fashion in order to agree to release them with time served. The judge accepted the deal. Now Echols, Baldwin and Misskelley are free, their lives all but ruined by 18 lost years, thanks to a rotten system. The news media for the most part didn’t bother to explain why the terms of their release was just one more gratuitous assault on their existence by Arkansas legal hacks.”

I’m sorry today reminded me of this case. It still upsets me to think about it.

1. Here’s evidence that the current complaints of antiracism propagandists is a crock: Denzel Washington. I’ve been watching a lot of his movies lately, and a comparison with Sidney Poitier is unavoidable. Poitier was the ground-breaker, the black man who became a genuine movie star in a majority white market, and more than that, did it by holding up the racism and discrimination in American culture for all to see. Nonetheless, he was limited by his race. Poitier always played character’s whose race was central to their roles in the plot. He never played a villain: like many stars, like John Wayne, Cary Grant and Clark Gable, he regarded his career as a continuous work exploring a particular archetype in all of its facets. For Poitier, it was that of the outstanding black man as an outsider in American society. In Poitier’s amazing year of 1967, he was in three hit movies: “In the Heat of the Night,” “Guess Who’s Coming to Dinner?,” and “To Sir, With Love.” All three featured Poitier as a black man thrust into a biased white environment, and gradually earning respect and some measure of equality. Today the #1 black star is Denzel, and he doesn’t have to play such sanctimonious roles. Race plays a part in many of his movies; he has even played black civil rights activists, like Malcolm X and Hurricane Carter. Washington, however, in part because of Poitier’s work, often plays parts that were written for white actors, and nobody cares. He isn’t afraid to play flawed characters and even brutal ones, like in “The Equalizer.” Washington’s success, and the versatility and range he is allowed to explore in his movies, would have been impossible in Poitier’s prime years. His body of work is proof of how far American attitudes toward race have advances and how unfair and dishonest the Black Lives Matter/ Critical Race Theory narrative is holding that the Jim Crow culture still rules America.

Denzel is also better than Poitier, although it is fair to say that Poitier never had the option of being as versatile as Washington. If Sidney Poitier is cinema’s Jackie Robinson, Denzel Washington is its Willie Mays.

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An Old Defense Lawyer Unburdens His Conscience In A Book, And It’s Unethical

/ Jack Marshall / 9 Comments

Pointing-Finger

A shocking story in the New York Times has the legal ethics world buzzing. I just added the issues to an ethics seminar I’m preparing for this month; I wrote a song parody about it, in fact. For some reason, a Times reporter finally found out about a self-published memoir by criminal defense lawyer Peter De Blasio that came out about a year ago. The book, “Let Justice Be Done,” reveals among its other tales of his legal career the truth of his most famous case, and one of his most successful. DeBlasio had convinced a jury to acquit his client, Dominic Byrne, of kidnapping in the sensational Samuel Bronfman Jr. abduction case in 1975, though the evidence pointing to his guilt was overwhelming.

What made DeBlasio’s defense strategy work was the testimony of the mastermind of the kidnapping plot, a spectacularly talented liar named Mel Patrick Lynch. He took the stand and claimed that the 21 year-old Seagrams heir had planned his own kidnapping, and that he, Lynch, was the young man’s gay lover. Lynch was unshakable under cross examination even though his elaborate story made no sense. Realizing that the jury was buying the tale, and that the prosecution was unprepared to discredit it, DeBlasio exploited the story to persuade the jurors that the dimwitted Byrne was innocent of kidnapping, though he would be convicted of extortion. In the end, both Byrne and Lynch served less than four years in prison.

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Still Not Scared? How About THIS…?

/ Jack Marshall / 25 Comments

During a closed meeting on this week, Attorney General Merrick Garland met with 35 state supreme court chief justices to urge their cooperation on limiting evictions. Garland praised the Michigan Supreme Court for giving tenants more time to apply for rental assistance by directing courts to stay eviction proceedings for up to 45 days. The AG also saluted the Texas Supreme Court for helping tenants facing lawsuits by sending them notices with assistance options.

The 35 justices should not have accepted Garland’s invitation (or was it a command?) Those who did accept should have ostentatiously walked out as soon as his purpose became clear. To call the meeting inappropriate is itself inappropriate: this was a straight up violation of the separation of powers, and a breach of professional ethics for everyone involved. Garland works for the President: he’s part of the executive branch. He’s also a litigant or a potential one in the matter he was discussing. The is an ex parte communication, as he well knows.

For the White House’s agents to strong-arm, or attempt to, members of the judiciary to allow the President’s party to pursue an unconstitutional policy is one more step to undo the structure of American democracy. This is a pure IIPTDXTTNMIAFB (“Imagine if President Trump did X that the news media is accepting from Biden.”). Creeping autocracy! Democrats and their puppet media would scream. Defying democratic traditions and weakening institutions! Except, you see, Donald Trump never did anything like this, and if he did, I assume all those good Democrats and progressives among the justices would have used the opportunity to call for impeachment, and the Republican chief justices, having respect for the Constitution, would refuse to attend.

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Observations On The “567 True-False Question Multiphasic Personality Inventory”

/ Jack Marshall / 19 Comments

Scoring test

The first observation is that I am amazed that I never heard of this thing before very recently. I am pretty certain that I never encountered it in my psychology course in college, nor in my criminal law courses in law school, nor in the ridiculous number of movies and TV shows I have watched that would seem to be natural places for the test to be referenced. The large and seemingly random holes in our knowledge of the world makes each or us less competent to deal with life, and ethics, to a great extent, is a matter of life competence. I should have learned about this a long time ago, and I don’t know why I didn’t.

The 567 True-False Question Minnesota Multiphasic Personality Inventory (MMPI), for those of you who don’t know already, is apparently the most widely used and researched clinical assessment tool used by mental health professionals to help diagnose mental health disorders (above is an excerpt from list of problems it is designed to flag and the number of questions that allegedly identify them). It has been used since the late 1930s, and has been revised and updated several times to improve its validity.

As you review its details here, you will immediately see the relevance to ethics. There are many scales used to evaluate the responses to the test, which takes 30-50 minutes to complete and involves the subject answering “true” or “false” to each of 567 questions. The survey may be used to assess hypochondria, psychosis, depression, obsessive-compulsive disorder, hysteria, sexual identities, paranoia, schizophrenia, introversion, and to identify psychopaths. There are also sub-scales that measure “the test taker’s belief in human goodness, serenity, contentment with life, patience/denial of irritability, and denial of moral flaws.”

I don’t have a lot to say about the test, which more or less speaks for itself. It reminds me of several things, like those trick questions they used to ask you when you checked your luggage at airports before 9/11: “Did anyone pack your suitcase for you? Did you accept anything from a stranger before you came here? Are you carrying any explosives or weapons?” How inept a hijacker did someone have to be to answer “Yes! I mean no! Damn, you caught me!” to that last one? A lot of the questions are like that. They are a bit cleverer, in that the whole reason there are so many questions is that the incriminating ones are randomly hidden among benign and distracting True-False assertions like ” I think I would enjoy the work of a librarian” and “I like poetry.” You’re rolling along for half the test and getting bored and suddenly you get hit with “It does not bother me particularly to see animals suffer.” Dingdingdingdingding!

The MMPI also reminded me of a bad Elvis Presley movie called “Follow the Dream” that has its climax in a courtroom where Elvis and his con artist father are fighting to keep custody of two twin boys the family adopted. In court, a suspicious psychiatrist gives Elvis’s father a “word association test” to prove whether he would be a fit parent, and the doctor interprets everything he says in the worst context imaginable.

And the test reminds me of what failures the fields of psychiatry and psychology have been since Sigmund Freud was going to save the world a century ago with his new science. If this list is a “primary tool” for metal health professionals, then I have a better understanding of how a Yale psychiatrist could go on MSNBC and insist that Donald Trump should be removed from office based on her assessment of his statements. It also explains how Woody Allen could spend decades in analysis and still be, you know, like Woody Allen.

One final observation, before I leave the rest to you, is that the list suggests that the current “antiracism”/Critical Race Theory/ Black Lives Matters assault on U.S. society and culture may be making African-Americans mentally ill. For example,#71 states, “These days I find it hard not to give up hope of amounting to something.” Being angry is also obviously a marker in the test.

At least now you’ll know about the 567 questions. Here they are:

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As The Previous Post Demonstrates Why We Can No Longer Trust Teachers, Schools And The Agencies That Regulate Them, This Post Shows Why We Cannot Trust Journalists Or Those Who Employ And Train Them…Ever!

/ Jack Marshall / 6 Comments

The newly tenured celebrity journalism professor at Howard University told CBS News, “All journalism is activism.”

Res ipsa loquitur. This statement is signature significance for a fake journalist who understands neither her profession, nor its function in a democracy, nor a professional’s ethical obligations, not just in journalism, but in any profession. No competent, qualified journalist would ever say such a thing out loud. No trustworthy journalist would even think it.

Yet this “journalist” will be teaching aspiring journalists in college that their chosen profession is the antithesis of what it was designed to be.

Oh! Did I forget to mention her name? It is New York Times Magazine reporter Nikole Hannah-Jones. Consider: journalism departments were fighting over who would get her to corrupt their students. She spurned the offer of an academic chair by the University of North Carolina, which we now know places higher priority on wokeness credentials than on, say, competence, to take the post with Howard.

The culprit responsible for the racist and anti-America fake history exercise called the “1619 Project” went on to tell CBS,

“When you look at the model of The Washington Post, right? ‘Democracy dies in darkness,’ that’s not a neutral position. But our methods of reporting have to be objective. We have to try to be fair and accurate. And I don’t know how you can be fair and accurate if you pretend publicly that you have no feelings about something that you clearly do.”

Combined with her statement that journalism is activism, Hannah-Jones provided smoking gun evidence of the staggering number of facts and concepts she doesn’t comprehend. (Again, she is going to be teaching students, and spreading her ignorance as pearls of wisdom.) Let’s see.

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A “Bias Makes Professionals Stupid And Unprofessional” Update

/ Jack Marshall / 7 Comments

Trump photo defaced

Perhaps the saddest aspect of the 2016 Post Election Ethics Train Wreck and the resulting mass effort to bring down Donald Trump was the corruption of virtually all of our society’s professions, and the vast majority of their members. Educators, psychiatrists, teachers, judges— journalists, of course, though they were already pretty far gone; broadcasters, of course. Entertainment professionals and performers, heaven knows (That’s the Dixie Chicks and their clever and subtle political commentary above.) In addition to theater professionals, two more of my professions have disgraced themselves: lawyers and ethicists. The listserv of a legal ethics organization I belong to was virtually cackling with joy over Rudy Giuliani’s partisan and dangerous interim suspension in New York, while the same group has been notably unenthusiastic about criticizing out-of court hyperbole by anti-Trump lawyers like the recently sentenced Michael Avenatti. (I may have missed some more balanced attention because I dropped out of the group for about 18 months in disgust over its bias.) Here is a tweet by a conservative attorney that was just offered to the group for comment on whether it raised issues of professional misconduct:

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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 is 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 bythe 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,” and supposed trustworthiness as members of a profession that is forbidden from lying. It bootstraps its argument by noting that the real purpose of the Rules is 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. It is 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 Giuliani 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 be known at this point that his (or Trump’s) general claim is false. If it 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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