Professions

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.”
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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 →

Policing Ethics, Part Two: When Those Expected To Stand Up For The Law Can’t Stand Up For Themselves

/ Jack Marshall / 11 Comments

Cellphone videos of New York City police officers being doused with water while trying to do their jobs became an internet sensation this week, and an unsettling (but inevitable) controversy for New York City.  The officers were trying to disperse rowdy groups at fire hydrants during a three-day heat wave, and allowed themselves to be assaulted and humiliated while  crowds cheered the attackers on.

The police arrested three men who were caught on video hurling water at police in two incidents. This also caused controversy. “Why is a man facing more severe punishment for dousing a police officer than Officer Daniel Pantaleo is for choking Eric Garner?” asked a Times article. That shouldn’t be a difficult question, but you know—the Times. Eric Garner was a petty criminal resisting arrest. The officers were doing their jobs, and Garner died as the result of an accident, in great part because of his own actions in defying the police. The police were also trying to do their jobs when they were doused with water, in an act that threatens the peace and order of the community.

The Police Department’s highest-ranking uniformed officer, Terence Monahan, the police chief, lit the fuse on a larger controversy, saying,

“Any cop who thinks that’s all right, that they can walk away from something like that, maybe should reconsider whether or not this is the profession for them.We don’t take that.”

But they did take that, and the Mayor of New York wants them to take that, because the whole idea of law enforcement is now, and has often been, anathema to progressive ideology. Continue reading →

Policing Ethics, Part One: Firing The Faint Of Heart

/ Jack Marshall / 3 Comments

The Las Vegas Metropolitan Police Department this week fired Officer Cordell Hendrex for “freezing” (it’s all on video) as a deranged sniper  fired hundreds of rounds into a crowd of county music fans below the Mandalay Bay hotel in Las Vegas in 2017. “I’m inside the Mandalay Bay on the 31st floor,” Hendrex said into his radio as he hid behind a wall. “I can hear the automatic fire coming from one floor ahead, one floor above us.”

As Hendrex stayed there in terror (by his own testimony), the gunman continued to fire, eventually killing 58 people and wounding more than 800 in the deadliest mass shooting in modern American history.  His lawyers are  appealing the decision. His defense? He was scared, that’s all. It’s unreasonable for the public to expect  police officers to rise to heroic standards and place their lives in jeopardy in a public safety crisis. The Las Vegas department’s training didn’t prepare Hendrex for storming the hotel room. He’s been a terrific cop, as long as he didn’t have to put his life on the line.

Oh. Continue reading →

Robert Mueller’s Disastrous Testimony And Its Significance, Part One

/ Jack Marshall / 25 Comments

A transcript of the testimony is here.

The amazing thing is that the Democrats held the hearings at all. Mueller, as a matter of legal ethics and client confidentiality, was severely limited regarding what he  could say beyond what was already in his investigation’s report. Desperate to gain some public relations traction in their endless, nation-rending determination to end a legal and duly elected Presidency without the inconvenience of an election, one can only surmise that Mueller’s ethically problematical press conference led them astray, and not only astray, but into a disaster of their own making.

The first hint that something was amiss was Mueller’s request that an aide sit by him and assist in his testimony. That was not only unusual but ominous, and the Republicans on the committee quickly rejected it. Once Mueller started answering questions, it was painfully clear why this request had been made. He looked disoriented and confused. The 75-year-old Justice Department veteran had to ask committee members to repeat their questions repeatedly, as if he was having difficulty focusing. He often did not know whether the representatives were asking him questions or if they were reading from his own report. In  the first 90 minutes of the hearing, Mueller asked for clarification of questions more than 10 times. Under questioning from Rep. James Sensenbrenner (R-Wisc.), Mueller asked: “And where are you reading from on that?” “I’m reading from my own question” was the answer.  “Then can you repeat it?” Mueller asked. The audience laughed. By the end, the audience had stopped laughing. As Obama strategist David Axelrod tweeted, the performance was “painful” to watch.  Mueller asked Rep. Sheila Jackson Lee to restate her question three times.  Rep. Matt Gaetz (R-Fla.) asked the 14 word question, “Attorney #2 in the Inspector General’s report and Strzok both worked on your team, didn’t they?” and Mueller appeared to be confused by it.“Pardon me?” Mueller replied. After Gaetz restated his question, Mueller replied: “And the question was?” Asked by Head Trump-hunter Judiciary Chairman Jerry Nadler (D-N.Y.) to explain what his investigation  found “in plain terms,” Mueller answered: “Well, the finding indicates that the president, uh, was not, uh, the president was not exculping, uh, exculpated, uh, for the acts that he allegedly committed.”

Ah! Well thank you, sir, that explains everything! Nadler looked as if he wanted to start banging his head on the table.

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