Professions

Friday Ethics “Kung Fu” Reflections, 9/13/2019: “Seek Not To Know The Answers, But To Understand The Questions.”

/ Jack Marshall / 15 Comments

Welcome, Ethics Grasshoppers!

Come to think of it, grasshoppers are not particularly ethical. Does anyone even recognize references to “Kung Fu” and Master Po any more?  It had a Caucasian actor (David Carradine) playing an Asian hero, so I guess it’s considered racist now.

Never mind.

I need a drink…

1. One more note about last night’s debate...I was listening to NPR’s efforts to spin the debate this morning. A Democratic consultant, who hardly could have been surprised by the question, was asked “Who won?” He paused, stammered and said, unconvincingly, “The Democratic Party?”  Exactly! As conservative wag Stephen Kruiser wrote today,

They don’t want you armed and able to protect yourself.

They don’t want you taking care of your children.

They don’t want you making your own decisions about your healthcare.

They want you to pay more in taxes for the privilege of losing your freedoms.

What’s not to like?

2.  The new book “She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement” reveals more details about the efforts by lawyers David Boies and Lisa Bloom (the victims advocate and daughter of Gloria Allred) to protect Harvey Weinstein from having his predations on women revealed. In one memorable memo the book shows to the world, Lisa Bloom wrote to Weinstein in December 2016 laying out a multistep playbook on how to intimidate accusers or represent them as liars. Regarding actress Rose McGowan, who claims to have been raped by Weinstein and who has since become a visible activist regarding his conduct and that of other Hollywood figures, Bloom wrote,

“I feel equipped to help you against the Roses of the world, because I have represented so many of them….We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”

Not surprisingly, McGowan is furious, and said of Bloom, “Her email is staggering. Staggering! …This woman should never work again. Lisa Bloom should be disbarred. So should David Boies.” Continue reading →

Visual Bias Ethics

/ Jack Marshall / 11 Comments

Let’s see: Hack, hack, probably a hack, and hack.

One aspect of broadcast journalism ethics that the Old Guard—Murrow, Cronkite, Brinkley, Huntley, Thomas and the rest— observed and respected was a neutral demeanor. They knew (and today’s hacks know as well, but with different results), that tone of delivery, body language and facial expressions can convey a journalist’s personal views and biases as clearly as a direct statement. Their practice, therefore, was to maintain a poker face and a matter-of-fact delivery. When Walter Cronkite brushed away a tear while announcing JFK’s death in 1963, it was considered newsworthy because Walter did not bring his own feelings into the news. The consensus was that hee could be forgiven this one time.

If that professional practice is taught in journalism classes any more, it is ignored. Now broadcast journalists and reporters deliberately use every tool at their disposal to signal to viewers what they think, and thus what the viewers should think as well. The election of Donald Trump represented a full-on, industry wide rejection of objectivity by the broadcast media, as many reporters allowed themselves to appear in mourning, or close to tears.  Unlike the assassination of JFK, however, this  was not an excusable exception, or, as we have learned, an exception at all.

Look at the faces of last night’s CNN panel reporting on what had been built up as a bellweather election in North Carolina that, should a Democrat have won, would be string sign that President Trump and Republicans were in trouble nationwide. Is there any doubt who they were rooting for?

This is not only unethical journalism, it’s incompetent journalism.

But that’s the way it is.

The Scourge Of Technologically Ignorant Judges

/ Jack Marshall / 7 Comments

The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either.  There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.

Judges, however, often make lawyers look like  cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files.  The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk. Continue reading →

The ABA’s Guidance For Judges With Potentially Conflicting Relationships

/ Jack Marshall / 5 Comments

“Now now, your Honor—that’s the Plaintiff!”

This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.

American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes,  we are enlightened that  “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”
 Continue reading →

From The Ethics Alarms “I Don’t Understand This At All” Files: The Persecution Of Curtis Flowers

/ Jack Marshall / 14 Comments

The Mississippi Supreme Court yesterday threw out the murder conviction of Curtis Flowers—again. Two months ago,  the U.S. Supreme Court ruled that the prosecutor, Doug Evans, methodically kept blacks  off the jury, a clear violation of Flowers’ rights by SCOTUS precedent. Evans is white, Flowers is black, and he has now been tried six times for the same crime, the 1996 murders of four people in a Winona, Mississippi furniture store. Every trial has ended in a mistrial or a conviction that was subsequently overturned on appeal because of prosecutorial conduct.

Just pause and take all of that in for a moment. Continue reading →

Shameless Self-Promotion Dept.: My Upcoming Smithsonian Program on Cross-Examination

/ Jack Marshall / 4 Comments

I don’t know how many Ethics Alarms readers live in the vicinity of Washington, D.C.—I suspect quite a few—but if you do and are interested in seeing me and my sister present a lively two-hour program exploring many of the legal ethics issues that I have tackled here, along with plenty of history, popular culture and trial technique (and are willing to pay $45 for the privilege as well as some take-home materials),  maybe I can meet you on the evening of October 21st.

The event is called “Courtroom Drama: The Art of Cross-Examination,” and here’s description: Continue reading →

Will The “Woke” American Bar Association Endorse Reject “Innocent Until Proven Guilty” In Sexual Assault Cases?

/ Jack Marshall / 14 Comments

Sadly, I wouldn’t be surprised.

This is the main reason that I am no longer a member of the ABA, which has become more political and partisan with each passing year. I have often presented ethics courses for ABA sections in the past, and will probably do so in the future.  But the legal profession is one of many that has lost its ethical bearings of late, and the resolution its largest and most prestigious association will consider this week (the ABA’s annual convention begins today) is proof.

Here is the resolution (emphasis mine):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

This is essentially the same standard that the Obama administration forced upon colleges and universities with its infamous “Dear Colleague” letter, resulting in many male students being persecuted, punished, suspended, or expelled without due process, based on an institutionalized bias in favor of female accusers.

The National Association of Criminal Defense Lawyers effectively expressed how sinister the resolution is in a statement issued on July 25, stating in part,

The criminal defense lawyer association notes elsewhere in its letter that this definition would necessarily undermine the Fifth Amendment right to remain silent, since “[t]he resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

The NACDL also points out that the American Law Institute proposed revising its l Model Penal Code to include an affirmative consent standard. The ALI’s membership  rejected that proposal, as it should have, and did so decisively.

The ABA membership is more politically diverse—and principled—that the official posturings of the association itself suggests. I suspect, and hope, that this abomination of a resolution, which would be a disgrace for any legal organization to endorse, will fail. The fact that such a resolution would even make it to the voting stage is one more ominous piece of evidence that the progressive forces seeking to weaken the Bill of Rights are infiltrating all of our professions and institutions.

Morning Ethics Warm-Up, 7/31/2019: Some Ethics Notes As I Run Out The Door…

/ Jack Marshall / 30 Comments

Hello, I must be going…

I got my prep done faster than expected, so I have time for a shorter than usual warm-up…

1.  “When will they ever learn? When will they ever learn?” It’s going to take a while for me to go through last night’s debate, which the Red Sox saved me from having to watch live. I can say this right now, however: responsible parties should not permit completely unqualified, publicity-seeking wackos like Marianne Williamson (and, as I argued in 2015 and 2016, Donald Trump) to enter primaries and participate in debates. This is how you get “A Face in the Crowd”; this is how you set up democracy to fail. There will always be a critical number of idiots in the electorate, and parties have a duty to fulfill a critical gate-keeper function to prevent the grifters, con artists, cult leaders and amateurs from using them to warp elections and the government.

Williamson was babbling about “dark psychic forces” and “emotional imbalance” last night.  Democrats should ding her right now, and tell her she is welcome to run under the banner of the Crystal Party, or something similar. Continue reading →

How Ironic! An Anti-Clinton Conservative Lawyer Plays The “Vast Left-Wing Conspiracy” Card

/ Jack Marshall / 7 Comments

Attorney Larry Klayman was familiar presence during the Clinton administration.  The founder of Freedom Watch and Judicial Watch and conservative gadfly  helped bring dozens of cases against Bill Clinton, the White House, and various staff members and agencies, uncovered some damning documents in FOIA requests, filed government ethics complaints, and continued to champion conservative causes after he left Judicial Watch in other hands. He  represented  former Arizona Sheriff Joe Arpaio and  state’s rights activist rancher Cliven Bundy, among other clients. Now the District of Columbia Court of Appeals Board on Professional Responsibility Ad Hoc Hearing Committee has handed down a 183-page report finding that Klayman breached the D.C. professional ethics rules, recommending that he be suspended from the practice of law for 33 months, and have  he prove his rehabilitation and fitness to gain reinstatement.

According to the report, Klayman represented Elham Sataki, whom he helped file a 2010 sexual harassment suit against her employer, Voice of America.  Klayman persuaded Sataki to move to Los Angeles and offered to pay her housing and living expenses, telling Sataki she could later reimburse him. She took him up on the offer, but when  Sataki rejected Klayman’s overtures for a romantic relationship,  the findings state, the lawyer raised his fee demands to continue representing her sexual harassment claim. As a result, the report concludes, Sataki did not pursue her case. Continue reading →

Sunday Morning Ethics Warm-Up, 7/29/19: A Meme, A Sub-Heading, And A Risky Tradition

/ Jack Marshall / 26 Comments

Let’s pray for a more ethical culture…

1. Unethical meme of the last couple hours or so...Esteemed Ethics Alarms commenter Curmie (Where have you gone Curmie? Ethics Alarms turns its lonely eyes to you… Oo-oo-oo…) posted this on Facebook, I assume in a tongue in cheek mood, since I know that he has a brain:

Sadly, it was greeted with cheers from the Facebook Borg as if the message was profound. This is a good illustration, however, of the intellectual rigor of the open borders crowd, which, please note, includes almost all of the Democratic Presidential hopefuls. How can you argue seriously with people this silly and shallow?

2. And an unethical sub-heading! Socialist propaganda turns up where you least expect it, which I guess is the idea. It’s insidious, and works on young brains like that bug Ricardo Montalban put in Chekhov’s ear in “The Wrath of Kahn.”

In this Sunday’s “Social Q’s” column, a weekly trove of ethics insight and blunders, a teacher complains about moving to a region where teacher salaries are much lower than what he is used to.  The culture shock was required in order to accommodate his wife’s career opportunity to achieve her “dream job.” He says that he is obsessing about earning so much less, and even though he says he did not get into teaching for the money, and that his wife has the primary income in the family, he’s wondering if he will still be motivated to do his job at the drastically reduced salary.

Columnist Phillip Gallane’s answer is far too kind. What I would have said is that if your motivation to do the job you have contracted to do in your chosen profession is based on your compensation,  you are in the wrong field, and you are letting non-ethical considerations dominate ethical ones to te detriment of those who have to trust you.

There’s nothing quite like making a sacrifice for a loved one and then being bitter about it afterwards. Gallanes does point out that since the teacher’s salary clearly isn’t crucial, he shouldn’t “stress about it” and should take satisfaction from allowing his wife to get her “dream job.”

The sub-heading for this segment in column: “It’s almost as if Capitalism is…broken?” Continue reading →