Morning Ethics Warm-Up, 1/30/2021: Oh, The Usual…Race-Baiting, The Pandemic, Betrayals, Journalism

SCOTUS Morning

Late reflections on this morning’s first post:

  • The story of how the only official to be referred for criminal prosecution as a result of the illegal Justice Department machinations to cripple the Trump administration was reported on page A20 of the New York Times front page this morning. Thirty stories were considered more important for Times readers to know about, including the discovery of  200-year-old fort built by indigenous Alaskans.
  • From the Times report: “The Justice Department has said it no longer believes the full range of evidence available to it by the final two extensions met legal standards to invade Mr. Page’s privacy.” This is deceptive: the purpose of the FISA warrant was to surveil the Trump campaign. meaning that the surveillance was illegal. Page was a means to an end, and the end being sought was redolent of the Nixon dirty tricks that spawned Watergate. The Times is burying the significance of what Clinesmith did. Similarly, the headline “Ex-F.B.I. Lawyer Who Altered Email in Russia Case Is Sentenced to Probation” is deliberately deceptive. The objective of the “collusion” claims were to sink the Trump Presidency, not to punish Russia.
  • A single day’s riot that breached the Capitol and had no tangible effects of the government at all is being routinely labelled an “insurrection,” while a two year effort to cripple a Presidential administration using false evidence and involving the Justice Department, the FBI and news media  is reported as an inconsequential legal matter.

1. Finding systemic racism where it wasn’t. Cicely Tyson died at the age of 96. Like Charlton Heston, the African-American actress became an icon by playing iconic roles. She had by any standards an acting career an actress should be proud of, and most performers would envy: she appeared in 29 films; at least 68 television series, mini-series and single episodes; and 15 productions on and off Broadway.  She  was honored with an Oscar, three Emmys, many Emmy nominations, a Screen Actors Guild Award and a Tony, and accomplished it all while being a non-beautiful woman in a profession that values beauty above all, mostly limiting her to character and historical roles.

Yet Times critic Wesley Morris, an African-American who  has a narrative to advance, writes in an appreciation, “Let’s face it: the great parts were always headed to someone whiter anyway… Consider the parts she could have played if the movies were fairer.” This is approximately equivalent to saying, “Imagine the parts Mickey Rooney could have played if the movies were fairer.” Tyson was unique and talented, and the movies were sufficiently fair for her to play major roles in major projects throughout a long career. There are undoubtedly African American actresses who consider it unfair that when a black female character was being cast in a hsitorical film, Tyson was ha the right of first refusal.

Might she have been cast in “The Jagged Edge” in place of Glenn Close? Sure—so could Faye Dunaway. Or Ellen Burstyn. The difference is that those actresses can’t use racism as the reason they weren’t cast.

In addition to her stellar career and reputation, Tyson died with an estate worth at least 10 million dollars. Hollywood has been racially biased for decades, but Cicely Tyson shouldn’t be cited as a victim. Like so many of the individuals she played, she rose above racism by strength of character and ability. Continue reading

End Of Day Ethics Sighs 1/21/2021: Here’s Kamala! Here’s Batwoman! Here’s Your Newsmedia! And “Heeeere’s Johnny!”

sigh

A very good friend who is married to another very good friend posted yesterday that Kamala Harris’s swearing in as Vice-President moved him to tears, and the Facebook post instantly harvested about a hundred “likes” and “loves.” As God is my witness, as Scarlett used to say, I had to fight to restrain my self from writing on his page (since there is no “What the FUCK is the matter with you?” icon to click on), “Why, because she’s a woman with no qualifications to be President or Vice-President? Because she’s the first Indian-Jamaican VP, and you’ve always wanted one of those? Because she’s just the right skin-shade to pretend to be an African-American, when she’s not? Does it choke you up because she slept her way to political power, then locked up a lot of black men for drug crimes, then accused the U.S. of being racist because of “over-incarceration”? Or does any Democrat, even phonies and rank incompetents, getting power make you feel all misty inside and out? Really, I’m curious.”

Well, he’s a nice, good-hearted guy who has the political sophistication of a cheese, so I just shut up. However, his reaction is just incomprehensible to me.

1. Oh, look, now there’s black Batwoman. Yay. Isn’t this a little cliched and formulaic by now? Will every fictional character eventually have to be made black or have his or her race switched, and every male character get virtual transexual transitioning, to satisfy the Woke and Wonderful? Mikey (who liked Life cereal), is now a girl. Jake from State Farm is now black. Perry Mason’s Paul Drake in the new reboot is black. Inspection Lestrade, Sherlock Holmes’ ally, is black on the Netflix Holmes spin-off. (Watson became female in the TV show “Elementary.” And Asian!) A really bad movie made Ralph Kramden from “The Honeymooners” black; Norton too. On Broadway, when there was a Broadway, Alexander Hamilton and Aaron Burr were black, and they aren’t even fictional. Of course.The whole Ghostbusters team was turned female for the reboot (but still had only one black member). There is much, much more. Isn’t this lazy? Isn’t this boring? Don’t women, blacks and other minorities want to have their own popular and iconic characters rather than just taking over white or male ones? Why isn’t such fake “diversity” an insult? Aren’t hand-me-down characters like hand-me-down clothes?

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Tales Of The Great Stupid: Wow…Who Could Have Seen THIS Coming?

Children are being bombarded by media and social media propaganda asserting that a vast number of people are trapped in bodies having the “wrong” sex organs, and celebrating the “T’s in the LGBTQ+ interest-group-of-convenience as the cool new martyrs. Thus an increasing number of these children convince their woke and irresponsible parents, and doctors who would rather be politically correct than “do no harm,” to divert their fates from the natural biological path to something else, because everybody is doing it, or everybody is saying it’s the right thing to do. It shouldn’t take much to figure out this is a terrible trend based on terrible reasoning, but there are so many such trends and ideas flourishing now that it’s hard to bat them all away.

And so we have the case of 23-year-old Keira Bell in Great Britain, who is suing a National Health Service gender clinic that she says should have challenged her decision to transition to male as a teenager. A tomboy as a child, Keira says her determination to switch gender gradually built up as she found out more about transitioning online, and “one step led to another.”

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Last Gasp Ethics, New Year’s Eve 2020

Happy New Year, Everybody!

1. A late entry in the “Most Unethical Lawyer of 2020” competition! McGinnis E. Hatfield was stripped of his license to practice law by the West Virginia Supreme Court. What did he do? Well, this section of a transcript of his conversation with a female client explains things pretty well:

Female: “I thought like when we first started out, I was just going to pay you. I didn’t know that you wanted sex out of the whole thing.”

Hatfield: “Well, I’d have to charge you like $1,500 bucks. You don’t have $1,500, do you?”

Female: “No.”

Hatfield “So come on out here. Just come. What time do you want to come?… [I]t’s just not going to work unless you do what I say.”

Female: “What do you want me to do?”

Hatfield: “… “Well, I want you to let me eat your pussy, and then I want you to let – I want you to suck my dick, and then, you know, I just have to – I’m as straightforward as I can be. And if you don’t want to do that, then fine. I don’t have any- I like you. And if you don’t want to do that, then we’ll just have to call it off.”

Female: “Is that not – all right. That’s fine. Whatever.”

Hatfield: “Is that okay?”

Female: “I mean no, not really because I’m not a whore.”

Hatfield: ” … And like I said, if you won’t want to do that, then that’s fine by me. I wish you luck. And if you don’t want to do that, then I’m not going to try to represent you. So that’s a benefit for you. And I’ll give you some money, too[.]”… You know, I’m shooting straight with you. I told you from the beginning that sex was important to me. I want some now. Nobody’s tried to trick you. And it would be safe, too. But anyway, if you don’t want to do it, that’s fine by me, honey, but you’ll have to get somebody to help you with your divorce, too.”

Female: “Okay, That’s fine.

Of course, it’s not fine. Lawyers are prohibited from having sex with clients in most jurisdictions. Lawyers cannot encourage individuals, including clients, to commit a crime. Mr. Hatfield compounded his problems when he flunked the easiest part of a disciplinary inquiry, telling the judge who asked Hatfield whether in retrospect, he found his behavior inappropriate or unethical,

“I think my conduct in this whole situation is human. And that’s the only defense I’m offering. Lord knows, we all need that. So that’s as far as I’ll go with that.”

The judge tried again, asking, “Are you remorseful?” Hatfield replied, “No. I have no remorse. I feel like I’ve been victimized.”

What an idiot.

It put me in mind of the Steven Wright line, “How did the fool and his money get together in the first place?”

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Merry Christmas, Everyone! And Here Is the Final Chapter of “Miracle On 34th Street,”An Ethics Companion, As Kris Kringle Gets His Day In Court [Updated]

It could be argued that the hearing (it’s not a trial) that serves as the dramatic climax to “Miracle on 34th Street” is the most memorable courtroom scene in movie history. That tells us something, though I’m not sure what. A more legally and ethically absurd spectacle would be difficult to imagine.

When we last saw Kris Kringle—if that indeed is his name—he was preparing to go to a hearing in which his sanity would be determined by a judge. (Insert Marx Brothers “Sanity Clause” joke here.) Lawyer Fred Gailey actually quits his law firm to take on the case, which he is handling pro bono. The hearing will he presided over by a judge played by Gene Lockhart, who has impeccable Christmas movie credentials, having played Bob Cratchit in one of the adaptations of “A Christmas Carol.”

The logical, legal and ethical aspects of the story go off the rails quickly, never to return. Mr. Macy orders Sawyer to have the case dropped, which makes no sense: if Sawyer were suing Kris for assault and battery, of if Macy’s had pressed criminal charges, Macy would have some say. But this is the state of New York saying that Kris is a threat to himself and others because he’s deluded. It’s a state matter now.

Sawyer goes to Fred and tries to get him to drop the case, saying “I represent Mr. Macy.” What, he’s a lawyer now? Not only does Macy have no role in this matter, Fred’s defending Kris, not prosecuting the case.

When Sawyer mentions that Macy’s wants to avoid publicity, Fred sees a little light bulb go on in his skull. “Very interesting,” he says out loud. “Publicity. Hmm. That’s not a bad idea! If I’m going to win this case… I’ll have to have plenty of public opinion!” Except that’s unethical. From New York’s Code of Professional Conduct, which wasn’t in force when the film was made but the principles were:

DR 7-107 [1200.38] Trial Publicity.
A. A lawyer participating in or associated with a criminal or civil matter, or associated in a law firm or government agency with a lawyer participating in or associated with a criminal or civil matter, shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in that matter….

Saying that one’s client will need publicity to influence public opinion is a clear statement of intent to violate the spirit if not the letter of the ethics rules. Fred breaches the rules again when he goes to see the judge to persuade him not to sign Kris’s commitment papers. In an adversary proceeding, a lawyer must not meet with a judge without opposing counsel present; that an ex parte communication, and strictly forbidden. Of course, it’s also unethical for the judge to let him do it.

That’s not all in the realm of judicial ethics. After suggesting that the fact that Kris says he’s Santa Claus makes his insanity a forgone conclusion, Judge Harper, who is apparently an elected judge (a situation I regard as a “pre-unethical condition”) is visited by his campaign manager, Charlie, an old pol played by none other than William Frawley, now immortal for co-starring in “I Love Lucy” as Fred Mertz. He suggest that Harper withdraw from the case:

“This Kringle case is dynamite. Let some judge handle it that isn’t coming up for reelection..I’m no legal brain trust. I don’t know a habeas from a corpus. But I do know politics. That’s my racket. I got you elected, didn’t I? And I’m gonna try to get you reelected….You’re a Pontius Pilate the minute you start!”

Then the judge’s grandchildren make a convenient entrance, and snub him because he’s being mean to Santa. Later, when the hearing somehow is turned into a referendum on whether Santa is real, Charlie returns with a dire warning:

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Saturday Morning Ethics: Christmas Countdown Edition

The story of that Christmas classic, Bing’s last holiday hit and also the last popular Christmas song that references its religious origins, is here.

I almost called this post the Clinton Impeachment Anniversary Edition, but decided to be more upbeat. It was on this date that William Jefferson Clinton became the second U.S. President to be impeached. Like the first, the unfortunate Andrew Johnson, Clinton was acquitted in the Senate. Also like Johnson, Clinton was impeached for genuine reasons consistent with the Constitution’s requirements. The next impeachment—did you notice how Democrats never mentioned it during the 2020 campaign?—-was very different: the Democratic House just decided it wanted to impeach President Trump and contrived an excuse to do it after three years of searching.

As veteran readers here know, it was the near complete absence of ethical analysis from the news media during Monica Madness and the mountain of rationalizations and obfuscations employed by Clinton’s defenders that prompted me to launch The Ethics Scoreboard, which in due course led to Ethics Alarms.

1. A bar exam ethics train wreck in California. The ABA Journal reports that more than 3,000 law school grads who sat for the State Bar of California’s remote October exam had their proctoring videos flagged for review, and dozens report receiving violation notices from the agency’s office of admissions. The issues flagged appear to be largely technology-based, and many claim they had no indication of a problem until they received violation notices. The flagging will create serious problems for those involved. A Chapter 6 Notice, as it is called, allows an applicant to respond in writing before any finding is made. If there is a determination that a test-taker violated procedures, bar actions could include warnings, a score of zero for the flagged sessions or the entire exam and negative marks on character and fitness evaluations, endangering the applicant’s prospects of receiving a license.

An individual can challenge the office’s determination and request an administrative hearing, and an unfavorable outcome can be appealed with the Committee of Bar Examiners and the California Supreme Court. However, those applicants’ October bar exam scores will be in limbo while hearings and appeals are resolved, and they will not be able to take the February 2021 exam when determinations of previous scores are pending.

The violations cited include examinees’ eyes being intermittently out of view of their webcams, audio not working; and test-takers not being present behind their computers during the exam. In other words, this is another disaster created by pandemic hysteria and technology unsuited to the challenge of providing an adequate alternative to in-person activity.

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“My Cousin Vinny” Meets Zoom

vinny

Once again I have to say “I don’t understand this story at all.

If you recall “My Cousin Vinny,” as almost all lawyers do (and fondly), Joe Pesci’s fish-out-of-water defense lawyer annoyed imposing Southern judge Fred Gwynn by first appearing in court wearing a leather jacket, and then showing up in the suit above because it was the only one he could acquire at short notice.

At least he tried.

While Ethics Alarms has taken the unalterable position that when children are forced to attend school via Zoom, what may appear in their homes are not, in fact, “in school,” a lawyer who appears before a judge via Zoom is still, in fact, “in court” and before a judge. Why? Because the judge says so, that’s why. And as Vinnie soon learned, when a judge says “Jump!” the only responsible response is “How high, Your Honor?”

Perhaps a Delaware lawyer named Weisbrot has never seen the movie. He complained to Delaware Vice Chancellor Joseph R. Slights III i ex parte “that [the court] would not consider an application from him because he “was not wearing a tie.” The Vice Chancellor responded, “That is true, as the record reflects.” BUT…

What the record also reflects is that Mr. Weisbrot appeared in court for trial (via Zoom) on Tuesday in either a printed tee-shirt or pajamas (it was difficult to discern).

In other words, “It’s true you weren’t wearing a tie, but a greater problem is THAT YOU WERE WEARING FREAKING PAJAMAS!”

Mr. Wiesbrot responded by channeling his inner (and outer) Vinnie by, in his next appearance via Zoom before the same judge, in something less than the kind of attire he had to know the judge expected:

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From The “Bias Makes You Stupid” Files! Ethics Dunce: Legal Ethicist Steven Gillers

A depressing theme throughout the Trump years has been the corruption of various professions as members once justifiably regarded as trustworthy abandoned their ethical obligations to become “resistance” allies. The professions thus tainted include judges, scientists, doctors and health professionals, lawyers, psychiatrists, historians, teachers and professors, university administrators, and of course the worst offenders, politicians and journalists. Maybe I’ve missed a few. One more profession that has to be included on the list, I’m ashamed to say, is legal ethicists.

In a post in 2017, I discussed the disgraceful filing of a frivolous and politically motivated bar complaint against then-Trump aide Kellyanne Conway by a group of law professors, some of whom are ethics specialists, and a few of whom I knew and respected. I wrote in part,

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Daybreak Ethics Warm-Up,12/4/2020: An Ancient Judge, A Non-Binary Actor, An Idiotic Team, An Icky Teacher, And An Absurd Columnist Walk Into An Ethics Bar…

1. Political, not logical, honest or competent…Actress Ellen Page, 33, best known for her performance as the pregnant teen in “Juno,” announced this week that she was “non-binary” trans. “My pronouns are he/they and my name is Elliot. I feel lucky to be writing this. To be here. To have arrived at this place in my life,” she wrote. Immediately, Netflix began changing Ellen Page’s name to Elliot in the credits all Netflix movies and series she had participated in. Now, for example, the IMDb page for the Netflix original series “The Umbrella Academy” says Elliot Page was in the cast. This is being called an “update.” It isn’t an update. It’s a lie, and airbrushing history.

When Al Hedison starred as “The Fly” in the original horror movie, that’s who he was. Later, Al changed his name to David Hedison for some reason, and that was the actor we watched in “Voyage to the Bottom of the Sea,” Irwin Allen’s wonderfully cheesy Sixties TV sci-fi series, and as one of the many Felix Leiters in the James Bond films. They didn’t change his credit on “The Fly.” Nor do you see the name Jack Palance in the credits as the evil gunslinger in “Shane” In that film, the actor we now know as Jack was going by “Walter.” And that’s who he was…then.

Identities are not retroactive. Actress Linda Day had a substantial career in television before she met and married actor Christopher George in 1970. Thereafter, she performed under the name of Linda Day George, but no one changed her credits on the shows she had previously performed in as Linda Day, because Christoper George was barely a twinkle in her eye then. This isn’t hard. Netflix is rushing to retroactively alter history not because doing so is accurate or true, but to demonstrate that the company is “woke,” and thus supporting Page as well as trans people everywhere. It’s virtue-signaling, and a particularly dumb and misleading version of it.

Oh, I should mention that Olympic athlete Bruce Jenner was not Caitlyn Jenner when he won his Gold medals in male events. Olympic records were not changed to claim a falsehood and an impossibility.

2. “Was that wrong? Should I not have done that?” The New York Daily News reports that a Staten Island high school teacher, so far unnamed, was seen naked and masturbating during a Zoom conference this week.

Apparently he tried to invoke Rationalization #3, The Unethical Role Model: “He/She would have done the same thing,” pointing out that “Jeffrey Toobin did it!” (Kidding!)

As with Toobin, I don’t understand the thought process, if you could call it that, that could produce such conduct. I also don’t understand the various statements in the aftermath of the Staten Island incident as described in the story. It wasn’t clear if the teacher intentionally exposed himself or if the video call involved students, the Daily News noted. So what? The conduct is nuts and requires firing for cause either way. I suppose intentionally behaving like this on Zoom is a crime, or more likely, evidence of mental illness.

I also enjoyed the Captain Obvious aspect of the statement by the school:

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2020 Election Ethics Train Wreck Update: Well THIS Doesn’t Bode Well…

spelling problem

That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”

Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.

Observations:

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