“Republican Rep. Adam Jarchow… said he would fire the [Department of Natural Rresouces] warden tomorrow if he could for ‘being complicit in putting firefighters at risk, over a stupid deer.’
‘This is a complete embarrassment and a joke,’ tweeted Jarchow…. The DNR posted a glowing statement about the incident on its website Tuesday. The release praised Warden Jesse Ashton for organizing a team of wardens and local firefighters to rescue the deer [The deer had wandered 500 yards out onto the frozen lake], saying, ‘Those little hooves are no match for slick surfaces!… Teamwork strikes again!'”
You can imagine the calumny being heaped on this monster’s head by animal lovers on social media.
But is he right? (Jarchow is himself a volunteer firefighter.)
Your Ethics Alarms Thanksgiving Weekend Ethics Quiz Of The Day is….
Should firefighters be used to rescue animals in peril?
1. This is weird. The Florida Supreme Court released a long-awaited decision concerning whether a judge’s Facebook friendship with an attorney should be grounds for disqualification if the attorney is arguing a case before that judge. The 4-3 opinion holds that:
In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.
I could not disagree more. A friend request from a judge is inherently coercive, and creates pressure on the lawyer to accept. Who wants to tell a judge that he doesn’t want to be his friend? Other bar associations and courts have held that it is improper for judges and lawyers to “friend” each other if there is any chance that the judge will be presiding over the lawyer’s cases, and that is the wiser rule. My own preference would be for judges to stay off social media entirely, except for close friends and family. They can only get in trouble there.
2. And this is much weirder…Apparently an app, ‘Santa Call New 2018,’ briefly available for download at the Amazon Children’s Store, would place a call to “Santa”when kids pressed the ‘call’ button, and Jolly Saint Nick would reply, “Hello there. Can you hear me, children? In five nights, if you’re free, I will look for you, I will find you, and I will kill you.”
Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds. The White House revoked the reporter’s press pass last week after a heated exchange between him and President Trump and a brief altercation with a press aide at a news conference. Acosta, CNN’s chief White House correspondent, is the first reporter with a so-called hard pass to be banned. CNN sued President Trump and other White House officials on Tuesday over the revocation. Kelly’s ruling was the first legal skirmish in that lawsuit. It has the immediate effect of sending Acosta back to the White House, pending further arguments and a possible trial. The litigation is in its early stages, and a trial could be months in the future.
Observations:
The ruling is a surprise. For me, it calls to mind once again my favorite Clarence Darrow quote, that “In order for there to be enough liberty, it is necessary that there be too much.” Apparently the judge, as courts have in other First Amendment cases, decided to leave a wide margin of safety around a constitutional right rather than interpret it narrowly, even reasonably narrowly.
I understand and sympathize with that instinct, and perhaps it is the right one.
Judge Kelly’s opinion insisted that there be some basic procedural protections, requiring the White House to state clearly the grounds for revoking the clearance. The Court did not find an express violation of the First Amendment and Acosta might still be barred from the White House following appropriate due process. Kelly said his ruling was “limited” and temporary until a more detailed explanation and sufficient notice by the White House was established. (Not surprisingly, the White House viewed a tweet as notice enough.)
So a vague, traditional but unstated standard of not acting like an entitled jackass during a press conference and debating the President rather than asking questions while refusing to yield the floor is not, absent written standards and procedures, enough to get an unprofessional jerk like Jim Acosta banned. Got it. It would be nice if previously acknowledged standards of basic respect for the office and the relative roles of the professionals involved were enough to avoid this kind of controversy, but apparently not.
Reflect on this episode the next time CNN or a pundit fusses about President Trump “defying established norms.” Continue reading →
“Attorney Michael Avenatti has been placed under arrest on suspicion of felony domestic violence and was booked early Wednesday evening.
Los Angeles Police Department officer Jeff Lee said the domestic violence report was taken on Tuesday in West Los Angeles and the arrest was made Wednesday.
“We can confirm that today LAPD Detectives arrested Michael Avenatti on suspicion of domestic violence. This is an ongoing investigation and we will provide more details as they become available,” the LAPD Twitter account posted Wednesday. In a statement, Avenatti called the allegations “completely bogus.”
…Avenatti posted $50,000 bail and left police custody Wednesday evening. He told reporters waiting outside the station, “I have never struck a woman. I never will strike a woman.”
“I am confident I will be fully exonerated,” he added.
…Avenatti emerged this year as a regular antagonist of President Donald Trump, beginning with his legal representation of Stormy Daniels and his frequent media appearances..he has publicly flirted with a potential bid for the Democratic presidential nomination to challenge Trump in 2020. The alleged domestic violence incident could dash Avenatti’s prospects as a potential insurgent Democratic candidate and clash with the image he has presented of himself as an advocate for women, including Daniels in her clash with Trump and an accuser against recently confirmed Justice Brett Kavanaugh.
The Vermont Democratic Party canceled Avenatti’s appearances for Friday and Saturday following his arrest, and it will refund all ticket sales, said Christopher Di Mezzo, the party’s communications director.
This story is like a great, big, ethics piñata that got hit squarely by a stick and spilled ethics candy all over the floor!
Observations:
1. Is it unethical to take pleasure in the misfortune of another, even a grandstanding, publicity-obsessed gasbag who makes me want to burn my bar card?Nah, not when the inspiration for mirth is condign justice. Like Michael Cohen, the shenanigans of Avenatti were signature significance for a phony and a charlatan, and his fall was just a matter of time.
We should always take pleasure in the exposure of such public figures, however it occurs. Continue reading →
1. Bottom line” Don’t trust Facebook. From the Times: “Facebook failed to closely monitor device makers after granting them access to the personal data of hundreds of millions of people, according to a previously unreported disclosure to Congress last month.” Surprised? As with Google promising moths ago that it was no longer reading our mail, then admitting months later that it had resumed the practice, the big tech companies have proven repeatedly that that we cannot believe what they say, or their motives, or their pledges of good will and public service. More from the Times story:
Facebook’s loose oversight of the partnerships was detected by the company’s government-approved privacy monitor in 2013. But it was never revealed to Facebook users, most of whom had not explicitly given the company permission to share their information. Details of those oversight practices were revealed in a letter Facebook sent last month to Senator Ron Wyden, the Oregon Democrat, a privacy advocate and frequent critic of the social media giant.
In the letter, a copy of which Mr. Wyden provided to The New York Times, Facebook wrote that by early 2013 it had entered into data-sharing agreements with seven device makers to provide what it called the “Facebook experience” — custom-built software, typically, that gave those manufacturers’ customers access to Facebook on their phones. Those partnerships, some of which date to at least 2010, fall under a consent decree with the Federal Trade Commission drafted in 2011 and intended to oversee the company’s privacy practices.
Read the whole thing. I just assume that anything I put on Facebook, regardless of the alleged settings,will be sold to or otherwise obtained by potentially malign entities.
2. Just what we need now, a rogue First Lady. First Lady Melania Trump publicly called for the President’s deputy national security adviser, Mira Ricardel, to be fired. In a word, well, two: Shut up. The felicitous circumstance of marrying someone who is later elected President of the United States confers no expertise or authority. The position of First Lady has no Constitutionally recognized duties, nor does it carry any real power. There is nothing anyone can do to diminish the influence and spouse may have with the President behind closed doors—and that is a problem—but she or the inevitable he must not confuse, confound or otherwise seek to influence affairs of state with public comments and opinions. Why Melania wants Ricardel fired is irrelevant. It’s none of her business.
I just want to point out that I sneezed six times while typing those last four words. Applause, please.Continue reading →
1. From the “bias makes you stupid” files. Yesterday two smart, once reasonable Massachusetts lawyers of the female persuasion debated me regarding the appropriateness of Dr. Blasey Ford’s late and unsubstantiated hit on Brett Kavanaugh. They were obnoxious about it, too, rolling their eyes and giggling to each other at my position, with one saying that I sounded like her “Southern friends.” I like them both, but a better example of how bias makes you stupid could hardly be devised. Their primary reason why Blasey Ford’s suddenly recalled trauma from the distant past should have been allowed to smear a qualified nominee for the Supreme Court in nationally televised hearings was this: women and girls in those les-enlightened days had good reason not to report rape and sexual assault, as they often were not believed and because a “boys will be boys” attitude prevailed in the culture. Moreover, they said, almost in unison, women still have good reasons not to report sexual assault. “Do you have daughters?” they asked, “gotcha!”-style.
To anyone whose ethics alarms are in good working order and who recognizes the difference between an emotional argument born of gender and partisan alliances and a good one, the rebuttal is obvious and comprises a general ethics principle:
One person’s misfortune, no matter how tragic or unjust, never justifies being unfair or unjust to somebody else.
Accusing anyone of anything three decades after the alleged incident is unfair.
Publicizing an allegation that cannot be verified and for which there is no supporting evidence is unfair.
Using alleged misconduct as a minor to impugn the character of an adult and a professional with an unblemished record of good conduct is unfair.
Dispensing with a presumption of innocence under any circumstances is unfair.
Dispensing with due process under any circumstances is unfair, because due process is itself fairness. (The two lawyers kept saying that this was not a trail so due process was not involved. The argument is either disingenuous or ignorant. Due process just means procedural fairness, in any context.)
Punishing one individual male for the fact that other males have escaped accountability for sexual misconduct is unfair-–and illogical.
Giving special considerations to one individual female because other females have been unfairly treated regarding their allegations is unfair—and illogical.
The two female lawyers kept saying that my position is a conservative one. It is not. It is not an ideological position in any way, though their position certainly is. May they regain intellectual integrity soon. And I forgive them for being so utterly insulting during our debate.
2. This is essentially a Big Lie argument from Vox: Ezra Klein, Vox creator, tweeted,
I don’t think people are ready for the crisis that will follow if Democrats win the House popular vote but not the majority. After Kavanaugh, Trump, Garland, Citizens United, Bush v. Gore, etc, the party is on the edge of losing faith in the system (and reasonably so).
An esteemed commenter recently accused me of being unfairly dismissive and insulting when a commenter dissents. That’s occasionally true but not generally true, and one circumstance where I may become dismissive and insulting is when a position is indefensible, like this one. It is either dishonest or so obtuse that no one capable of writing it down should be trusted again. Continue reading →
Increasingly, I find myself wondering whether everyone who travels on business regularly encounters the vast range of irritations, outrages and generally unpleasant experiences I do, or if it’s just me. This time, on an over-night trip to Boston, I had important medicine confiscated by the TSA, got trapped in a hotel elevator, ran out of the house without my computer, injured my mouth when a sharp piece of food pierced a gum, and, of course, my flight was delayed. This time the delay would cause a genuine hardship: I had an important and time-sensitive task to complete involving the welfare, indeed safety, of two family members, and it meant that I had to be home no later than 6:40 pm.
When we finally landed at Reagan National, which is less than a 20 minute cab ride from my home if the lights and traffic break well, there was still a slim chance that I could make my deadline, IF the plane emptied quickly. The flight attendants said that there were several passenger who probably had tight connections, and asked them to raise their hands so everyone could stay seated to help them bolt the plane and try to make their flights.
Being human, my mind filled with rationalizations for raising my hand. I did have a tight connection, sort of. The urgency of my need to leave the plane wasn’t necessarily less than any of my fellow passengers. In fact, it was objectively important. And really, what would be the harm if I raised my hand? What might that cost one of the passengers trying to make a connection, 5 seconds? Ten? And how did I know everyone raising their hands really had a plane to catch?
But crap. I’m an ethicist. Raising my hand would be a lie, and there were no substantial or legitimate justifications for it. So I kept my hand down. I missed my crucial appointment, and it is going to cause me and two family members a lot of unpleasantness. Nonetheless, it was the right thing to do.
I’m headed to Boston this afternoon for one of my semi-monthly ethics seminars for new Mass. bar admittees. I have been having bad luck with keeping up on the blog while traveling of late, so I’m going to post a two-part Warm-Up to try to avoid falling too far behind.
1. Maureen Dowd made my head explode with her ridiculous profile of Gary Hart—you know, Donna Rice, “Monkey Business”—so I’m going to rely heavily on Ann Althouse’s analysis which parallels mine. Her head is just more resilient, apparently. [Tangent: I wonder how Ann’s traffic is doing? I have noticed that progressive commenters have virtually disappeared from her blog as well, where a couple of years ago they were equally represented. I don’t consider Althouse a conservative at all: she is relentlessly objective and non-partisan, and mostly serves as the web’s best bullshit detector. She has, however, defended the President against unfair attacks and hypocrisy, and called out the news media for fake news, fake headlines, and bias. That’s asking for a boycott, apparently.) Hart makes this statement:
“If all that stuff had not happened and if I had been elected, there would have been no gulf war. H.W. wouldn’t have been president. W. wouldn’t have been president. Everything would have changed. I don’t say that to aggrandize myself. It’s just, history changed. And that has haunted me for thirty years. I had only one talent and it wasn’t traditional politics — I could see farther ahead than anybody.”
I could write a long essay about this arrogant nonsense with my eyes closed. Ann had the same instant reaction I did: Funny, you weren’t able to foresee that daring reporters to check on your martial virtue would result in your being caught adultery-handed in Clintonesque trysts, you big dummy. (My words, not Ann’s.) And if hindsight is 20-20, hindsight aternate future readings are even better. Gary needs to study Chaos Theory a bit more closely, and watch that old Star Trek episode. For all he knows, his election would have resulted in the world being taken over by Mole People.
Althouse also flagged the Dowd section where the Queen of Snark writes,
“As we fantasize about a parallel universe, where America is not a joke and our president cares about other human beings, the same questions keep swirling in our heads. What has happened to this country? Can he be stopped? When will it end? How the hell did we get here?”
Wow, Talk about bias making you stupid. To many of us who are at least as smart as Maureen, America is a joke when it embraces open borders and edicts by international organizations, when it warps the Constitution by declaring that men and police can be guilty until proven innocent if a member of a favored group accuses them, and allows a partisan news media to control public opinion. It’s not a very funny joke, though. Some trenchant comments on Ann’s post:
“I don’t know why I’m still surprised by liberals’ inability to do any real soul-searching. You’d think by now, after many hundreds of “how did we get here, why aren’t smart people like me listened to by the stupids?” articles, I’d give up hope that they will ever open their eyes and see what’s right in front of them. But then I remember, I’m a pollyanna. I can’t give up on anybody.”
***
“It would seem obvious to me that Trump does care about human beings, but not the ones Dowd think he should be caring about. And maybe her friends consider America a joke, and maybe that’s why we got were we are..”
***
“Dowd’s perspective is Technocratic. Society needs to be supervised by an educated elite. Democracy is just mob rule that will lead to ruin. But, we have to put on a facade so that the deplorables will accept our edicts. So we do the election thing, but the real rules are set behind the scenes by career bureaucrats. Politicians and the medias’ job is to set the agenda and influence popular opinion towards the “correct” attitudes”
1 .Regarding Michael Cohen. The news media, Trump-haters and “the resistance’ are all giddy over Michael Cohen claiming that President Trump made racist comments in his presence. Lawyers who say such things about clients get disbarred. They get disbarred because it is proof that they lack the honesty, trustworthiness and integrity to be trusted professionals.There is no reason whatsoever to trust Michael Cohen, so relying on his account of anything is just an exercise in confirmation bias. He is not a reliable source, and what he says at this point should be taken for what it is: the latest effort by a desperate crook to somehow survive the consequences of his own low-life ways.
2. Alexandria Ocasio-Cortez easily makes my list of the dozen most unethical candidates seeking election next week; I hope to get that up soon. Here is the fundraising email the New York socialist sent out:
“Six days from now, we can defeat the brutal white supremacist forces of anti-Semitism, anti-immigrant nativism, and racism.We can hold accountable the cold-hearted monsters who have repeatedly attacked our health care. We can send a message to the bigots and billionaires that this country belongs to all of us. We can win if we show up on November 6. We must end Republican control of Congress and begin to reclaim our nation. A Democratic majority will not bring back the eleven Jewish people in Pittsburgh, massacred while they prayed. Or the two Black people gunned down days before at a Kroger grocery store in Kentucky. It won’t fully stop the relentless attacks against immigrants in America. But on Sunday evening, Pittsburgh mourners—angry and broken-hearted like us—chanted ‘Vote! Vote! Vote!’ They understand the magnitude of the midterm election six days from today: that it affords us the chance to forge a powerful bulwark against Donald Trump’s hate and hold accountable the Republicans who have been complicit in every step of his toxic, self-serving, and destructive agenda. We must offer a path out of the darkness….This is our chance to take action in solidarity with everyone whose lives are threatened by the hate-filled policies of Trump and the GOP,” she says. “Our chance to push back against white supremacist forces across our nation, against the xenophobes who are militarizing the border, against the bigots who seek to erase our transgender families, against the apologists for sexual assault and the Islamophobes who sow hate to divide us.”
I considered doing an ethics audit of this screed—remember, she’s supposed to be a rising star of the Democratic Party—but decided that any objective reader here is more than capable of doing so without any help from me. Res ipsa loquitur.
How should we characterize someone who would vote to give power to a candidate willing to sign such a message?
3. By all means, let’s believe all female accusers...Judy Munro-Leighton, who as “Jane Doe” accused Brett Kavanaugh of rape in an email to Senator Kamala Harris, was treated as a credible accuser and caused the Judiciary Committee to question the SCOTUS nominee about her claims. Now she admits that it was all a partisan-driven lie.
Who suspected that?
She confessed to Committee investigators that she “just wanted to get attention” and that “it was a tactic.” She said she had called Congress during the Kavanaugh hearing process before the Blasey-Ford accusation multiple times to oppose Kavanaugh’s nomination. Regarding the false sexual-assault allegation sent to the Committee through Harris, she said: “I was angry, and I sent it out.” Asked whether she had ever met Judge Kavanaugh, she said: “Oh Lord, no.”
Her false rape allegations against Kavanaugh had exactly as much corroborating evidence as Blasey-Ford’s: none whatsoever. Yet, still, to this second, an astounding number of smart, reasonable Democrats, especially women, argue, and presumably believe, that such an accusation–in Blasey Ford’s case, one that is three decades old and dates from high school— should disqualify a man with an unblemished adult and professional reputation from high office. And they are indignant about it, too.
I don’t get it.
Reportedly, the Senate received over a thousand claims from women claiming that Kavanaugh sexually assaulted or harassed them.
The Senate has asked for criminal sanctions against Munro-Leighton.
Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.
AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all, charge for.
Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.
Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.
Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):
Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.
To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!
Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.
This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!
