Morning Ethics Warm-Up, 8/27/2018: Petards, Conflicts, And Bullshit Edition

Good Morning!

1. Oh no! Hoisted by my own petard! I’m pretty certain that Clinton fixer Lanny Davis has an unwaivable conflict of interest in his representation of Trump fixer Michael Cohen. The legal ethics establishment is soft-peddling the issue because most legal ethicists apparently hate President Trump more than they like ethical lawyering, but I’ve been wrestling over whether to file a disciplinary complaint. The problem is that any complaint that has even a tinge of political motivation won’t be touched by the Bar (if prior performance is any indicator), so a complaint by me would be the proverbial lonely tree falling in the forest. The remedy would be to issue a publicity release about the complaint, but I’ve criticized that tactic as unethical right here, on more than one occasion. Rats.

It might be just as well. After the mere hint that I was defending Donald Trump (I was not) on NPR appears to have gotten me blackballed there after many years as an ethics commentator, I probably should not criticize the lawyer for the most popular sleaze in D.C. these days.

2. Neil Simon Ethics. In an alternate universe, my still operating professional theater company, dedicated to keeping unfairly buried, forgotten or unfashionable American theater works of the past in front of audiences who deserve a chance to see them, is looking at a lot of Neil Simon productions. The works of the —by far—most successful writer of comedies in Broadway history are already sneered at as sexist and “outdated,” and I can vouch for the fact that all it takes is one militant female board member with a checkbook and a chip on her shoulder to kill a production. Remember S.N Behrman? Seen any Philip Barry plays lately? How about Kaufman and Hart? Simon just died, and he’s already heading to obscurity along with those guys, and most of their plays are still funny too.

3. Here’s another topic it’s dangerous to get intoFrom CBS:

A pregnant Washington state woman said she was fired via text message from a sub shop where worked, with a store manager telling her “it’s not a good time to have somebody who is leaving for maternity leave in several months anyway.” Kameisha Denton told CBS Seattle affiliate KIRO-TV that she had told the manager she was pregnant and due in December, asking for maternity leave.

Denton said she realized that she hadn’t been assigned shifts at Jersey Mike’s sub shop in Marysville, Washington, so she sent a text to her manager inquiring about the hours. The response she says she received was shocking.

When Denton asked for her “updated schedule” she received something a bit different. The store manager named only as “Marcos” in Denton’s phone responded, “I am sorry to inform you but it’s not going to work out with Jersey Mikes. It’s not a good time to have somebody who is leaving for maternity leave in several months anyways. You also failed to tell me this during your interview.”

Denton posted the exchange on Facebook in a post that had garnered over 1,000 shares in just two days.  

Denton told KIRO-TV,  “I was just like in shock, it took me a minute to face reality — I was like this is really happening.”

Continue reading

Morning Ethics Round-Up, 8/23/2018: A Quote Fest!

Good Morning!

1. Now THIS is narcissism! It’s long, but go ahead and read it.  This  was Madonna’s “tribute” to the late Aretha Franklin at the VMAs this week:

Aretha Louise Franklin changed the course of my life. I left Detroit when I was 18. $35 in my pocket. My dream was to make it as a professional dancer.
After years of struggling and being broke, I decided to go to auditions for musical theater. I heard the pay was better. I had no training or dreams of ever becoming a singer, but I went for it. I got cut, and rejected from every audition. Not tall enough. Not blends-in enough, not 12-octave range enough, not pretty enough, not enough, enough. And then, one day, a French disco sensation was looking for back-up singers and dancers for his world tour. I thought, “Why not?” The worst that can happen is I could go back to getting robbed, held at gunpoint and being mistaken for a prostitute in my third floor walk-up that was also a crack house. So I showed up for the audition, and two very large French record producers sat in the empty theater, daring me to be amazing. The dance audition went well. Then they asked if I had sheet music and a song prepared. I panicked. I had overlooked this important part of the audition process. I had to think fast. My next meal was on the line. Fortunately, one of my favorite albums was “Lady Soul” by Aretha Franklin. I blurted out, “You Make Me Feel.” Silence. “You Make Me Feel Like A Natural Woman.” Two French guys nodded at me. I said, “You know, by Aretha Franklin.” Again, “Mmmhmm.” They looked over at the pianist. He shook his head. “I don’t need sheet music,” I said, “I know every word. I know the song by heart, I will sing it a cappella.” I could see that they did not take me seriously. And why should they? Some skinny a– white girl is going to come up here and belt out a song by one of the greatest soul singers that ever lived? A cappella? I said, “Bitch, I’m Madonna.”

No, I didn’t. I didn’t say that. Cause I wasn’t Madonna yet. I don’t know who I was. I don’t know what I said. I don’t know what came over me. I walked to the edge of the pitch black stage and I started singing. When I was finished and drenched in nerve sweat. Y’all know what this is, right, nerve sweat? They said, “We will call you one day, and maybe soon.” So weeks went by and no phone call. Finally, the phone rang, and it was one of the producers, saying, (French accent) “We don’t think you are right for this job.” I’m like, “Why are you calling me?” He replied, “We think you have great potentials. You are rough for the edges but there is good rawness. We want to bring you to Paris and make you a star.” We will put you in a studio . . . it sounded good, and I wanted to live in Paris and also I wanted to eat some food. So, that was the beginning of my journey as a singer. I left for Paris.

But I came back a few months later, because I had not earned the luxury life I was living. It felt wrong. They were good people. But I wanted to write my own songs and be a musician, not a puppet. I needed to go back home and learn to play guitar, and that is exactly what I did. And the rest is history.

So, you are probably all wondering why I am telling you this story. There is a connection. Because none of this would have happened, could have happened, without our lady of soul. She led me to where I am today. And I know she influenced so many people in this house tonight, in this room tonight. And I want to thank you, Aretha, for empowering all of us. R-e-s-p-e-c-t. Long live the queen.

Another anecdote I would like to share: In 1984, this is where the first VMAs were, in this very building. I performed at this show. I sang “Like a Virgin” at the top of a cake. On the way down, I lost a shoe, and then I was rolling on the floor. I tried to make it look like it was part of the choreography, looking for the missing stiletto. And my dress flew up and my butt was exposed, and oh my God, quelle horreur. After the show, my manager said my career was over. LOL.

The fact that Madonna is getting flack for this is almost as funny as the fact that she would think a long monologue about herself qualified as an appropriate tribute to Franklin. This is a manageable mental illness, but it is pathological, and Madonna is an extreme narcissist in a business that produces them in bushels. But didn’t everyone know that? Why, knowing that this woman only sees the world in terms of how it can advance her interests, would anyone entrust  her with giving a tribute to anyone else? That’s rank incompetence.

Narcissists are incapable of ethical reasoning, since ethics requires caring about someone other than yourself.  Madonna’s “tribute” is a valuable window into how such people think. Madonna really thought the nicents thing she could say about Aretha Franklin is that she made a cameo appearance in Madonna’s epic life.

2. Next, a ventriloquist act! Continue reading

Sunday Morning Ethics Warm-Up, 8/19/18: Operating Under A Disability

Good Morning,

from Erie, Pennsylvania!

1. Handicapped. Unfortunately, my circumstances on this trip, which include a draining computer, hours of driving, the usual vicissitudes of travel but time two (my wife is with me), and multiple speaking responsibilities are going to influence my choice of topics. This is the blogging ethicist’s version of dealing with a disability, as I was discussing in yesterday’s seminar.

It is not unethical for a lawyer to continue to practice law while he or she has a drinking problem, or is developing dementia, or has the flu, but it iss unethical to do so while any of these maladies threaten to diminish the lawyer’s trustworthiness, diligence, zeal or competence. The professional has an ethical obligation to manage disabilities. In my case, several ethics issues that are in the news will require more concentration and analysis to handle well than I am able to muster right now, as I type with one eye on the battery charge and try to work in a hotel room with more than the usual distractions and interruptions. The participation of the White House Counsel in the Mueller investigation, for example, will just have to wait.

We are going to try to find a new power cord today. No, the hotel business center computers won’t do: there isn’t enough time to get even a single post up on them, among other impediments. Continue reading

Morning Ethics Round-Up, 8/13/2018: Rally? What Rally? Bias? What Bias? Texts? What Texts? Spy? What Spy?

Huh. I didn’t know that ZZ Top were white supremacists!

Good Morning!

I just know this week will be better than last week…

…though these items certainly don’t inspire hope.

1. The dangers of “future news” That huge, scary rally in Washington where the nation’s capital was going to be descended-upon by all those white supremicists activated by Donald Trump’s election and rhetoric to celebrate last year’s Charlotteville riots? About two-dozen people showed up. I talked to friends in the District who said they were terrified of the rally. CNN, the networks, the Times and the Post had all headlined this major, major event, which would show just how much racism there is in America. This was fake news, straight up. It was imaginary, “future news,” a headline about what was going to happen because the mainstream news media wanted it to happen. Then they could bleat out the narrative that President Trump was inspiring racists to come out of the woodwork. Maybe someone would get killed, like in Charlottesville! Well, they could hope.

What investigation went into the determination that there was going to be a huge gathering of racists in D.C.? Clearly, not enough. 24? 24??? I could set up a rally of locals who think Gilbert and Sullivan should be taught in the schools that is five times that with some phone calls, texts and a Facebook post. It would take me a couple of hours. Yet the Times put the inevitability of this massive white supremacy rally on its front page. “After weeks of hype…” wrote the Times. Weeks of hype by the press.

Incompetent, dishonest, irresponsible. You know. As usual.

It is worth mentioning that the counter-demonstration to the imaginary demonstration was many times larger than two-dozen people.

2. In related news about non-news...The Boston Globe has been contacting newspaper editorial boards and proposing a “coordinated response” to President Trump’s criticism of the news media, especially his controversial “enemy of the people” rhetoric. “We propose to publish an editorial on August 16 on the dangers of the administration’s assault on the press and ask others to commit to publishing their own editorials on the same date,” The Globe said in its pitch to fellow papers.

Talk about bad timing! We just had the explosion of the fake racist rally story. We have the Manafort trial being featured on the front page of most newspapers like it’s the O.J. trial, when  the majority of public has no idea who the man is and the trial details have nothing to do with anything newsworthy. We have the mainstream news media giving the claims of a reality show villain the kind of attention John Dean received for his Watergate testimony while it makes sure nobody knows that a Chinese spy infiltrated the staff of a powerful U.S. Senator for 20 years. Nah, the news media isn’t the enemy of the public! It just deliberately abdicates its duty to inform the public objectively , is engaged in a coordinated effort to bring down an elected President, has abused its First Amendment-bestowed immunity from the consequences of its conduct, and is working to divide the nation to the point where it cannot function. That’s all. None of this is good for the people or the nation, but that doesn’t make those intentionally harming both enemies, exactly….although off the top of my head,  I can’t think of a more accurate word for it. Continue reading

Ethics Salvage, 8/9/018: Here’s Why There Were No Ethics Alarms Posts Yesterday, And More

Good morning? What’s good about it?

My plan, as it is most days I travel, was to arrive at my destination (New Providence, NJ), check into the hotel, and spend the evening catching up on ethics posts, then get up early, compose an ethics warm-up. maybe another post r two before I lose control of the day in the onslaught of seminar-leading and more travel. It’s a good plan. Unfortunately, nothing went right. My original flight, into Newark airport, was cancelled after an hour’s delay: Newark had stopped all air traffic. I switched airlines and bought ticket to LaGuardia, where I was told that my client’s limo service could pick me up and take me to my destination.(My program was to start at 9:00 am today.) I got on the plane, we left the gate, and waited. It was storming in New York City and environs. After two more hours, the plane returned to then gate, where we were told to wait around. If things started up at LaGuardia, we were going to have to seize the moment, get on the plane and take off. Never mind: after a half hour or so, that flight was cancelled too.

Thus I ended up at the end of a line of about a hundred travelers , while a single American Airlines agent tried to handle each crisis, a process which appeared to bid fair to last until Christmas before they would get to my urgent need to be in Springfield, N.J. in time to meet up with my colleague and perform a three hour musical ethics seminar for a paying audience of over a hundred lawyers. My ProEthics partner and spouse was simultaneously coordinating with Mike, the musician, on his way to the hotel from Brooklyn, the New Jersey Bar, and the airlines, trying to develop plans B (an early morning flight from Dulles or National and a mad dash to the seminar), C (an overnight train trip), D ( driving to New Jersey), and E (hiring someone to drive me, so I didn’t fall asleep at the wheel). Cancelling was never an option: I’m a show-biz guy, and the show must go on.

For some reason an American agent came over to the back of the endless line, and said, conspiratorially, “Who wants to go to JFK?” About 2o of us eagerly followed her to another gate, and I eventually found myself on a plane to JFK—which stalled on the tarmac, because JFK had halted take-offs and landings too. After an hour or so, the pilot announced that he had “timed out” along with the rest of the crew, and that we were returning to the gate, de-planing, and would wait for a fresh pilot who was en route, assuming his plane arrived.

Well, to cut out a lot more twists and turns, eventually I got to JFK, paid $250 to have a car take me to my hotel in New Providence, and got to bed at around 4 am,  with a scheduled pick-up by a limo service to take me and Mike to the venue at 8. The limo driver got lost, incidentally. Then it was a blur of a three-hour interactive seminar (Mike, as usual, was brilliant), back to the airport, more delays, and home by about 7 pm last night. I started this post around 9, found myself unable to think, and went to bed.

My friend Tom Fuller is fond of saying that if you have no options, you have no problem. I had no options, but I do regard not being able to get posts up in a timely fashion a big problem.

I was, however thinking about multiple ethics issues that arose during my odyssey–actually, a Cyclops and some Sirens, even Scylla and Charybdis,  would have been welcome diversions from Airport Hades—and will pass some of them along now: Continue reading

Comment Of The Day: “Look! Computer Professionals Have An Ethics Code!”

There were eight comments on the July 18 post about the Association for Computing Machinery (ACM) ethics code, and four of them were Comment Of The Day-worthy. In addition to the chosen honoree here by Alex, I highly recommend the related comments by Glenn Logan, mariedowd, and Windypundit.

This is an Ethics Alarms record, and speaks volumes about the quality of commentary here.

This is Alex’s Comment of the Day on the post, Look! Computer Professionals Have An Ethics Code!

As a member of the ACM for the past 18 years, I did review earlier drafts and submitted comments. I was especially critical of the vagueness, but in general welcomed the update, as the old code was pretty outdated by now.

I did not think about the enforcement mechanism, but that is because I still don’t see Software Engineering/Programming as a profession. This has been a very contentious point for years. On the one hand, “hackers” (I use this in the original sense of the word, as it describes a very common ethos in the occupation) are terribly skeptical of any authority, and pride themselves that you can become a proficient programmer without formal training. Funny enough, programmers subscribing to this point of view are very supportive of apprenticeships and mentoring… go figure.

On the other hand, corporations will *strongly* resist any sort of licensing, and use the current, informal, certification system as a first filter only. Formal requirements would make software engineers more expensive and possibly lead to some system to deal with liability. Much better to keep to current system with the ability to outsource to the lowest bidder. Continue reading

Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

This morning the Washington Post tries to spin the clear ethics violation by Michael Cohen when he surreptitiously recorded his client, Donald Trump, when his client didn’t know or have any reason to suspect that such a recording was taking place. It was unethical. I have never spoken to a lawyer or ethics authority who didn’t believe such a recording would be unethical, at least until such an ethics breach was made against this particular betrayed client. Now, since the legal profession is one of many that have abandoned integrity and professional standards in the fever of anti-Trump madness, I’m sure several, maybe many, will change their tune. You know: they don’t want their friends to be angry with them.

Yes, Cohen’s taping was legal, because it occurred in New York, where only one party to a conversation has to know it is being taped. That is irrelevant to the ethics breach at issue. For a lawyer to tape a client secretly is always unethical. That’s my position, and I know of no persuasive argument against it. The Post article says that the matter isn’t clear cut. Oh yes it is.

Until 2001, there was little dispute that a lawyer was violating Rule 8.4, which pronounces it misconduct for a lawyer to engage in misrepresentation, dishonesty, fraud or deceit. Taping anyone secretly is misrepresentation. Does anyone want to dispute that? Try. If I am talking to you privately, and you do not tell me that I am being recorded, then you are representing to me that I am NOT being recorded, unless our previous conversations were recorded and I knew that. A few states just ducked the issue, and held that a lawyer could do what any other citizen could do in a state that made one party recordings legal. The American Bar Association, however, right through the 20th Century, held that it was per se unethical for a lawyer to surreptitiously tape anyone.

The absolutist position was an Ethics Incompleteness Principle accident just waiting to happen. In other words, there had to be exceptions, and since almost all states allowed District Attorneys to surreptitiously record suspected criminals without the threat of ethics sanctions, exceptions were already recognized. Thus, in 2001, the ABA revised its position with equivocal, muddled, Formal Opinion 01-422, “Electronic Recordings by Lawyers Without the Knowledge of All Participants,” which the ABA summarized this way:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

It does not “necessarily” violate the ethics rules because, the opinion explains (as various state opinions have as well), sometimes recording a third party serves the interests of justice, as when, for example, a client is trying to show domestic abuse, or when there is an allegation of illegal loan or housing discrimination. 01-422 wanders into Clintonesque rhetoric, however, when it states, Continue reading

Morning Ethics Warm-Up, 7/31/18: The Self-Deception Edition

Goodbye, July, 2018!

(and don’t come back!)

1. Ethics translation time! Baseball’s current World Champion Houston  Astros just traded for young, exciting closer Roberto Osuna from the Toronto Blue Jays. This raised some eyebrows, because the 23-year-old Osuna is just completing a 75-game suspension from MLB for allegedly beating his wife. The Blue Jays had decided that they wanted no part of Osuna, and that he would not be a member of their team going forward, despite the fact that he is regarded as one of the best late-inning relievers in the game.

Anticipating some criticism from Houston fans and baseball fans in general, who usually don’t like cheering for disgusting people,Astros GM Jeff Luhnow released a statement  following the trade, saying,

 “We are excited to welcome Roberto Osuna to our team. The due diligence by our front office was unprecedented. We are confident that Osuna is remorseful, has willfully complied with all consequences related to his past behavior, has proactively engaged in counseling, and will fully comply with our zero tolerance policy related to abuse of any kind. Roberto has some great examples of character in our existing clubhouse that we believe will help him as he and his family establish a fresh start and as he continues with the Houston Astros. We look forward to Osuna’s contributions as we head into the back half of the season.”

Translation:

“Our team has had bullpen problems all season, and as of now we have no closer, even as the team has lost three games in a row [now it’s four], two of our best players are injured, and we’re beginning a series against the Mariners, who are just a few games behind us. So in the interest of winning and because the ends justify the means, we are suspending our “zero-tolerance” policy regarding “abuse of any kind” to tolerate a player who Major League Baseball has determined to be a very serious abuser. I don’t know how we’re going to tell another player who is credibly accused of less serious abuse that we won’t tolerate his presence on the team when we just voluntarily brought an abuser onto the team, but never mind: there’s a pennant to win. I’m pretending that Roberto has complied with all consequences related to his past behavior when he is currently pleading not guilty in his pending Canadian trial on battery charges, in the hope that most fans aren’t paying attention.”

“Thank you.”

Continue reading

Saturday Morning Ethics Warm-Up, 7/28/18: Expired Ethics, Sleeping Fact-Checkers, Ghosts, The Dumbest Ethics Train Wreck Of Them All…

It’s a beautiful morning!

1. When “Everybody Does it” isn’t just a rationalization. I was asked by a law firm to render an opinion as to whether particular conduct was a violation of the legal ethics rules.  A legal ethics opinion—bar associations issue these periodically to cover gray areas– in the jurisdiction said that it was, but the opinion was over 20 years old. The reasoning given in the opinion for declaring the conduct unethical was that the practice was “new to the jurisdiction” and might mislead or confuse the public.

Today, however, my research showed, the conduct is commonplace in that jurisdiction. Many, many law firms engage in it. What was new two decades ago is new no longer, and the reasoning for the opinion’s conclusion was based on conditions that no longer exist. Moreover, no firm has been punished for the conduct, and won’t be.

The firm was concerned that the legal ethics opinion had not been over-ruled or withdrawn. I said that it didn’t have to be. “Everyone” was engaged in the conduct it forbade, the bar had allowed “everyone” to do it, and if an issue was raised now, I am 100% certain that the old opinion would be withdrawn as no longer reasonable or germane.

2. One more human feature that makes ethics harder: the ability to simultaneously hold two contradictory and mutually exclusive beliefs.

I was watching one of the apparently inexhaustible supply of cable shows about haunting and paranormal investigations with my wife. This one climaxed in a session with a Ouija board, and the love of my life uttered, within seconds of each other, these two statements:

  • “It’s amazing how many otherwise intelligent people really believe in ghosts and demons.”
  • “Ouija boards! I wouldn’t allow one of those things in the house. I’m not taking any chances.

I have heard many other friends and acquaintances endorse both of these positions as well.

3. It is the study of how one discerns the truth, after all. Who needs it? They no longer teach ethics in our education system, and now apparently philosophy is on the way out. Claremont Graduate University in California will be closing the PhD program in philosophy and terminating two tenured faculty. Apparently the move was dictated by budget and “market considerations.” The Claremont colleges in Southern California are a distinguished and growing batch consisting of Pomona, Scripps, Harvey Mudd, Claremont-McKenna, and Pitzer. They still have a philosophy faculty, but I wonder for how long.

I was tempted to check the curriculum of these schools to see what kinds of courses were deemed worthy of support while a graduate degree in philosophy was not, but I decided that it would make my head explode. Continue reading

Morning Ethics Warm-Up, 7/27/18: Welcome Nausea, Disillusionment, Guilt, And Apathy…

Well, it’s morning.

1. Nausea. This is a real headline from this morning’s New York Times:

Truce on Trade Follows Route Obama Paved; Trump Claims Victory in Crisis He Started

Gee, the Times morphed into Media Matters so slowly that I hadn’t noticed!* In fact I had noticed, but that headline is a virtual declaration that the Times is now a fully committed partisan organ of the Democratic Party, and is no longer even pretending to be practicing ethical or objective journalism. Not only does the headline represent opinion rather than reporting, the Times was so desperate to color the story of the European Union tentatively reaching a new trade agreement with the U.S. that it felt it had to project its bias before anyone could read the story.

*With a nod to blogger Glenn Reynolds, who uses this as a regular jibe

2. Disillusionment. Netflix has finally concluded “The Staircase,” the now 13 episode documentary following the bizarre case of novelist Michael Peterson, who was convicted of murdering his wife Kathleen in 2001. Directed by French filmmaker Jean-Xavier de Lestrade, the first eight episodes aired on the Sundance Channel in 2005 and were an immediate sensation. It would be unethical to spoil the story or the documentary for you if you haven’t seen it, but a couple of spoilers lie ahead.

Anyone who continues to argue that it is ridiculous and “treasonous” for anyone to challenge the competence, objectivity, motives and trustworthiness of law enforcement, including the FBI, and prosecutors after watching this horror show has astounding powers of selective outrage.

The series also made me want to throw heavy objects at the TV screen as a result of the lazy, passive, indefensible conduct of the prosecutors and the North Carolina judge, who resided over every iteration of the case for 15 years. Since there was no way a rational jury could find Peterson guilty beyond a reasonable doubt based on the evidence, ethical prosecutors would never have charged and tried Peterson. (A jury finding a defendant guilty on inadequate evidence doesn’t necessarily mean that the case was a just one.) It is especially infuriating for the viewer (so imagine what Peterson thinks) to hear the judge today blandly concede that two controversial pieces of evidence he allowed into the trial were, upon reflection,  unjustly prejudicial, and that he believes that there was ample reasonable doubt for the jury to acquit. Then he tries to make the argument that the “system works” based on a mess of a case and an investigation that still hasn’t explained how Kathleen Peterson died.

It does explain, however, why so many Americans don’t trust the justice system or the alleged professionals who run it. Continue reading