Professions

The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

/ Jack Marshall / 12 Comments

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“It is professional misconduct for a lawyer to… engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Hmmmm. Continue reading →

The Big Law Firm’s New Partners

/ Jack Marshall / 42 Comments

In early December of last year, Paul, Weiss, one of the country’s largest and richest firms, announced its new partners: twelve young white lawyers, and one similarly hued woman.

Being that group identification is everything to certain well-placed people today, the announcement became an instant “public relations nightmare,” according to many media accounts. Sensitive to being sufficiently “woke,” many large companies had their  general counsels, sign an open letter  calling on law firms firms  “to reflect the diversity of the legal community” or they would send their business elsewhere.

What is the assumption underlying that letter? Is it that whites were chosen over better qualified minority lawyers as an act of bigotry and racism? Noooo, nobody’s suggesting that. Are the signatories to the letter really saying that less qualified lawyers of color should be advanced rather than these lawyers? It can’t be that, can it? I would say that a law firm that does not make every effort to have the very best lawyers available for the benefit of the clients is treading close to unethical behavior. A firm can’t prioritize diversity, whatever than means, over its own abilities to represent clients.

I nearly dropped Above the Law, but the reliably knee-jerk left and ethically obtuse online rag is great for these stories, and didn’t disappoint this time. Joe Patrice, the editor, wrote, Continue reading →

Morning Ethics Warm-Up, 1/29/19: Sick Room Edition

/ Jack Marshall / 27 Comments

I hope you’re feeling better than I am.

1. Sick Ethics. Being sick on the job is always an ethical conflict, and riddled with bias. My father’s approach, so characteristic of him as someone who insisted on going into the Battle of the Bulge as an officer with a mangled, recently-repaired foot that was still oozing blood, was to ignore the illness and soldier on. There are two problems with that, however. First, you are working at diminished capacity, and second, you risk infecting others. The problem is a bit easier when you have a home office like I do, but there is still a trade-off issue: if I “soldier on” like my father, do I risk a longer illness and reduced capacity for far longer than if I just took a day or two off to recuperate? In my case, this is always a tough call: I am very vulnerable to bronchitis and pneumonia following chest colds (that’s what I’ve got, big time, starting last night), and when the stuff I cough up starts attacking me through the Kleenex, I’m in big trouble that has sometimes lasted for months. There is also a bias problem when you feel rotten. Right now, I would love to lie down. I can’t think of anything I would like more. I bet I can rationalize air-tight reasons why I should lie down, despite all of the very valid reason not to.

2. And speaking of sick...All 50 states require vaccinations before children to attend school, but 47 of them  (California, Mississippi and West Virginia are the exceptions) allow parents to opt out of vaccines if they have religious beliefs against immunizations. Eighteen states also allow parents to opt out of vaccines if they have personal, moral or philosophical beliefs against immunizations, including beliefs that they can think straight when they are in fact idiots and get their medical advice from Jenny McCarthy and other hysterical anti-vaxxers. Oregon and Washington are among the states that allow for a parent’s personal beliefs to exempt their kids from being immunized, along with Arizona, Arkansas, Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Wisconsin and Vermont.

You know. Morons. Continue reading →

Death By Hypocrisy

/ Jack Marshall / 10 Comments

Fake Newseum…

Johns Hopkins is buying the Newseum building in Washington, D.C., ending a depressing saga. The Freedom Forum, which ran the failed institution, made predictable brave statements about soldiering on, but the Newseum is dead, and deserved to die.

It is tragic, however. There should be a museum in the nation’s Capital chronicling the history of Freedom of the Press in America: John Peter Zenger, Nellie Bly, Horace Greeley, Hearst, Woodward and Bernstein, New York Times v. Sullivan, the Pentagon papers, the Boston Globe’s exposure of the Catholic Church child molestation cover-up and so much more. The problem is that today’s journalists no longer believe in or can be trusted to practice the kind of journalism that the Newseum celebrated, but had to pretend they did or the place would be more of a memorial than a museum.

Here , for example, was a laughable section, since removed, from 2009—you know, after the news media mugged John McCain, attacked Sarah Palin relentlessly for lacking “qualifications” to be Vice President while coronating Barack Obama, whose qualifications for the Presidency were far fewer, and generally acted as part of the Democratic Party’s campaign organization because electing a black President justified abandoning all objectivity and independence: Continue reading →

The Lawyer Version Of “The Hader Gotcha”

/ Jack Marshall / 10 Comments

“GOTCHA!”

My legal ethics colleagues have their briefs in a bunch over a case in which an enterprising news media reporter dredged up old, old —but scintillating!—professional discipline on two lawyers taking on the defense of a much-hated defendant in a sensational and heinous crime.

One had been suspended for taking client money, but was eventually reinstated. The other had been reprimanded for having a sexual relationship with a client. The idea, of course, was to make the lawyers look bad. The issue is whether this is a fair use of attorney discipline, especially in the latter case.

The episode is similar to the Hader Gotcha, which we have discussed here several times, in which deep social media divers look for embarrassing youthful social media posts from the past, even from teen years, to use to turn the public against the individual, or at least to force the target to grovel an apology. It is also similar to the Brett Kavanaugh hit from Dr. Blasey-Ford, though I doubt this would occur to my overwhelmingly “woke” legal ethicist friends.

The lawyer raising the issue represents attorneys faced with disciplinary complaints, and asks why this is happening, feels that it is unfair, since the discipline wasn’t recent and had nothing to do with the current case, and thinks it is wrong that the reporter didn’t bother to talk to the bar association or the lawyers themselves to get proper context. He also asks whether anything can be done about it, including, perhaps, not publicizing some varieties of lawyer discipline.

The lawyer also asks,

Do I need to warn my clients that a collateral consequence of discipline is that if they ever take a high-profile case, the press might dredge up old dirt when covering the case?

This is too easy:

  • Welcome to the internet age! No, there is absolutely nothing that can be done about this, except to create a more ethical culture of journ…sorry, I couldn’t get that out without laughing.
  • The legal profession has never been able to explain to the public, and apparently not to journalists either, though they should be less ignorant, that representing accused criminals and guaranteeing even guilty citizens their rights isn’t an adverse reflection on a lawyers’ character. As a result, someone will always think it’s fun, justified and fair to look for dirt in a defense lawyer’s personal or professional past. Thanks to the web, it’s easier than ever.
  • Yes, you need to warn your clients. I’m surprised you weren’t doing so already.
  • And it’s not just legal discipline. Anything potentially embarrassing that can be found on the web, including social media posts [Lawyers: Don’t use Twitter!] can and will be dug up and weaponized.
  • As a result, past discipline, and any other potentially embarrassing information about a lawyer now falls into Rule 1.4 territory, information the client has a right to know and must be informed about in order to participate in his or her own case.
  • No, all lawyer discipline should be reported. The public has a right to know.

The Dumbest Casting Ethics Controversy Yet

/ Jack Marshall / 27 Comments

Sometimes the line between confused ethics and plain old stupidity is razor thin. This controversy is one of those times.

Actor Bryan Cranston, best known for “Breaking Bad,”  is being criticized for playing a a quadriplegic billionaire in “The Upside,” his new film  released Friday, because he is not actually handicapped.

He’s also not a billionaire, but that doesn’t seem to be an issue for some reason.

Jay Ruderman of the Ruderman Family Foundation complained, “While we don’t know the auditioning history of ‘The Upside,” casting a non-disabled actor to play a character with a disability is highly problematic and deprives performers with disabilities the chance to work and gain exposure.”

No, Jay, it isn’t problematic, because the primary objective of the performing arts is not, and has never been, to provide “the chance to work and gain exposure.” This is the affirmative action mentality that as it gets stretched further and further from reality and common sense by the woke and the wokeness-addled, increasingly ensures that society eventually  rejects the whole tortured concept. The objective of the performing arts is to entertain, engage and enlighten the audience. That requires casting the best actors available, and in film, frequently the best know actors, in the judgment of the director and the producer. Bryan Cranston is one of the most skilled actors in the world. I am extremely confident that there isn’t a single quadriplegic actor that can equal him, if indeed there are any at all. Audrey Hepburn could also play a blind woman better than any of the few available blind actresses, when she starred in “Wait Until Dark.” Tom Hanks and cliff Roberrtson could play  mentally-challenged caharcters in “Forrest Gump” and “Charlie” better than any mentally-challenged actors.

I can’t believe we even have to have this conversation. Continue reading →

The New York Times Puts Another Fake “Collusion” Scoop On Its Front Page

/ Jack Marshall / 74 Comments

This was going to be my headline, but I decided it was too long:

“You Know, When This Is All Over, Probably In 2024, American Journalism Will Look Like Post-Bomb Hiroshima, Except The Profession Will Have Done It To Themselves”

And I’m getting bored with “Nah, there’s no mainstream news media bias,” since I have occasion to use it so often, but then, that’s the point, isn’t it?

Yesterday, the left hand column above the fold of my daily Times, delivered to my door, screamed out,

It continued:

As a top official in President Trump’s campaign, Paul Manafort shared political polling data with a business associate tied to Russian intelligence, according to a court filing unsealed on Tuesday. The document provided the clearest evidence to date that the Trump campaign may have tried to coordinate with Russians during the 2016 presidential race.

I know, and you know, that this sent the “resistance,” and Democrats, and all my hateful, coup-seeking Facebook friends and yours into a frenzy.  The news media too, that an old friend and Ethics Alarms self-exile whose name I won’t use (though I sure am tempted) repeatedly insisted wasn’t biased or “enemies of the people” —how could I suggest such a thing?–and that didn’t traffic in fake news because they were careful, honest, trustworthy professionals of integrity. Here’s an example of how they reacted to the Times story:

Exclusive: Mueller Is Holding Top Secret Intelligence That Will Sink the Trump Presidency

That’s from the Observor, which breathlessly continues,

Another day, another bombshell emanating from the Special Counsel investigation into President Donald Trump and his links to the Kremlin. We now have more proof that Robert Mueller really does know everything about 2016—and I can exclusively tell you how he knows it.

This latest reveal comes from a legal screw-up of gargantuan proportions. Yesterday, attorneys for Paul Manafort, the president’s disgraced campaign manager for the decisive phase of the 2016 election, filed papers with the Justice Department trying to prevent their client from spending the rest of his life in a federal penitentiary. They asserted that Manafort did not lie to Team Mueller, as the Special Counsel believes, but in the process, they made an epic redaction fail that blows the case wide open.

Manafort’s lawyers accidentally revealed that Team Mueller believes—and Manafort confirmed—that their client shared campaign polling data with Konstantin Kilimnik, one of Manafort’s closest friends and a longtime business partner. Moreover, Manafort conceded, he had discussed a “Ukraine peace plan” with Kilimnik “on more than one occasion.” Worst of all, Manafort met with Kilimnik in Madrid to discuss these matters, he admitted, without saying when (Manafort’s spokesman later stated the Madrid meeting was in January or February 2017).

Once you know who Konstantin Kilimnik is, the gravity of these revelations comes into clear focus. The elusive Russian fixer was indicted by Team Mueller last June on obstruction of justice charges for assisting Manafort with witness tampering; previously, the Special Counsel described Kilimnik as having “ties to a Russian intelligence service and had such ties in 2016.”

The story is still up online, as are many similar ones from other “reliable sources.” Then, quietly, well into yesterday afternoon, the Times put out a tiny correction:

A previous version of this article misidentified the people to whom Paul Manafort wanted a Russian associate to send polling data. Mr. Manafort wanted the data sent to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, not Oleg V. Deripaska, a Russian oligarch close to the Kremlin.

In other words, “Never mind!”

Yes, we all know that Manafort had business contacts with the Ukranians, but Mueller isn’t investigating what the Ukraine did or didn’t do to influence the 2016 election.  Well, come on now, Ukraine, Russia, Kyrgyzstan, Whateverstan—who can keep those old Soviet Union countries straight? They’re all basically the same, right?

Yup, “the clearest evidence to date that the Trump campaign may have tried to coordinate with Russians during the 2016 presidential race” is a completely false story, in place of the actual story that didn’t belong on any front page, except maybe the All About Paul Manafort Hooterville Gazette. Except this was the New York Times, the Mother Ship, the ne plus ultra of trustworthy American journalism, and yet they rushed a fake story onto the front page because confirmation bias has eaten the professionalism of their reporters and editors,  and they hate Donald Trump more than they respect their profession or their readers.

Am I being too harsh?

No.

Indeed, I should be harsher, but this astoundingly long-running outrage had drained my capacity.

Oh, how they want President Trump to be guilty of impeachable high crimes and misdemeanors!  I’m sure they’ll wag their tails and jump into the laps of Tlaib and Waters and the other totalitarian-minded Democrats when they try to impeach the elected President of the U.S., aka “the motherfucker,” for simply existing and not being them, but they so want the impeachment to be based on something real so the coup has some cover. Thus they close their eyes and leap, knowing their progressive, biassed readers will be happy, without expending the basic professionalism and due diligence required to get me a B in Mr. Stewart’s journalism class at Arlington High School.

Of course American journalism itself is accountable for its self-defilement, though its members and co-conspirators will doubtless say that Trump makes them behave like a two-bit Pravda. The real culprits, however, are the democracy-rending fake Americans who have set out to undermine our system, elections, politics and government, and are begging for ammunition from the weak and lazy reporters who have betrayed the nation by joining their ranks.

 

 

Dear CNN: Fire Don Lemon. Or Fire Yourself, PART I: The Ethics Alarms Firing List

/ Jack Marshall / 29 Comments

Before I discuss why CNN host Don Lemon has to be fired, and he does, I decided to check to see how many times Ethics Alarms had endorsed, recommended or demanded that a particularly unethical employee be fired. There are more than I thought. It’s a fascinating group, though:

  • 18 journalists, almost half
  • 9 political appointees
  • 7 educators: teachers, professors, and administrators
  • 3 performers/ celebrities
  • 2 prosecutors
  • and a mix of others.

Reviewing them, I don’t think any deserved to be fired any more than Don Lemon does after his statements this week.

Here’s the list: Continue reading →

Morning Ethics Warm-Up, 1/8/2019: A “Bias Makes You Stupid” Spectacular! [UPDATED!]

/ Jack Marshall / 66 Comments

Good Morning!

The first appearance of Donald, Debbie and Gene in the New Year!

1. “A Nation of Assholes” update: Conservatives being ugly. The comments and even the posts around the conservative blogosphere regarding Ruth Bader Ginsberg are repulsive, and  reveal a deep mean streak, a lack of compassion and basic respect. Ginsberg, it was announced yesterday, will miss oral arguments–that means she won’t be able to vote on the cases she doesn’t hear—for the first time in her long career. It also may well mean that she isn’t long for this world, or the Court. The gleeful tone of the jokes, sarcasm and mockery being aimed her way by those salivating at the prospect that she will soon be replaced by a right-leaning justice is palpable. (Yes, some of the mean jokes are funny. The blog referring to her illness as a “belated Christmas present” isn’t.)

2. A classic bad argument for illegal immigration in response to an emotional one against it. The advocate? Geraldo Rivera. On a Hannity segment with conservative Dan Bongino [Correction notice: I mistakenly identified Bongino as African American in the original post. He is apparently Italian-American.]  Rivera tried to defend illegal immigration while condemning the use of individual episodes of violent crimes by illegals to justify stronger border enforcement. As Bongino and Hannity shouted around and over him, Rivera objected to Hannity’s featuring the grieving parents of 22-year-old Pierce Kennedy Corcoran who was killed in a head-on car crash with illegal immigrant Franco Cambrany Francisco-Eduardo. Francisco-Eduardo was charged with criminally negligent homicide and driving without a license or insurance,  was turned over to ICE. (Good!). Hannity lit the fuse when he began his panel by saying,

“Their son is dead. Or the people that also aid and abet these people with their sanctuary cities and sanctuary states, criminal aliens in our custody that are not handed over to ICE. You always say it’s about both parties, it’s not,” Hannity stated. “It’s about one party now that refuses to protect the American people…”

Said Geraldo at his most Geraldo-ish: Continue reading →

Fairness Conundrum In Rochester: What Do You Do With The Racist-Sounding Gaffe? [UPDATED]

/ Jack Marshall / 58 Comments

Keep smiling, Jeremy: you’re probably ruined, and may have done nothing wrong, but it’s all for the greater good…

Go to this link, and listen (the video won’t embed).

https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2Falan.majors%2Fvideos%2F10212107639637618%2F&show_text=0&width=560

While reporting on the air  Friday about an ice rink at Martin Luther King Jr. Memorial Park, WHEC (in Rochester, New York) meteorologist Jeremy Kappell fumbled King’s name and uttered something that sounds like “coon” in the course of trying to get it out. Viewers, convinced that he had uttered a racial slur on the air, demanded that Kappell be fired, and, astoundingly,  the mayor of Rochester issued a demand of her own.

Mayor Lovely Warren, blatantly abusing her power and position,  issued press release  saying…

“It is wrong, hurtful and infuriating that WHEC Channel 10 broadcast a racial slur in reference to Dr. Martin Luther King, Jr. during its Friday News broadcast. It is beyond unacceptable that this occurred. There must be real consequences for the news personality involved and also for the management team that failed to immediately apologize and address the slur.”

Piling on, the Rochester Association of Black Journalists issued a statement condemning the “clearly racist language” and asking for a “complete explanation” from WHEC.

Although Kappell tweeted Monday that he has “never uttered those words,” he was indeed fired.

Is that fair? Continue reading →