Professions

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

/ Jack Marshall / 52 Comments

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!”

/ Jack Marshall / 4 Comments

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

/ Jack Marshall / 25 Comments

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

/ Jack Marshall / 39 Comments

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…

/ Jack Marshall / 53 Comments

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…

/ Jack Marshall / 26 Comments

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 →

Morning Ethics Warm-Up, 7/24/18: Democratic Censorship, Republican Idiocy, Trump Tweets And Baseball Ethics

/ Jack Marshall / 80 Comments

Good Morning!

1. Good norms, bad norms, good President, bad President…Good: the announcement that the President is “considering” terminating the security clearances of former Obama officials John Brennan, Jim Clapper, James Comey, Andrew McCabe, Michael Hayden, and Susan Rice. Well, mostly good; the message that the President is “looking into it” feels suspiciously like a “Shut up or else” threat. The President should just pull the clearances immediately.

How many of you never realized that people like Comey and Brennan kept their clearances after leaving their jobs? I didn’t, and what a dumb and irresponsible rule that is. Apparently Senator Rand Paul sparked the move by tweeting that Brennan’s ridiculous “treason” accusation warranted a loss of clearance. I’d go further: the demonstrable determination of all of the named former official to assist “the resistance” and oppose the policies and very existence of the Trump administration makes ending their access to classified information mandatory.

If someone has a non-partisan, reasonable argument why the President shouldn’t just do this immediately, I’d love to hear it, especially as it applies to Comey and McCabe, who were fired.

Unequivocally bad, as in irresponsible, incompetent, undignified, unprofessional  and self-destructive, was Trump’s all-caps tweet threatening Iran after another one of that nation’s “mother of all wars” statements. Diplomacy by tweet is per se ridiculous and reckless, so saber-rattling by tweet is obviously worse. If there is a serious message to be sent, then the President should send it formally and in a professional manner. Since all-caps communications are annoying and offensive no matter where they appear, they are doubly so coming from a nation’s leadership. There is no way to interpret that Trump tweet in a way that is complimentary to the President.

2. This is one more reason my wife just told a GOP Congressional Committee fund-raising caller to never darken our phone-lines again: I really thought this story was a hoax, but unfortunately it is not. In the second episode of Showtime’s Who Is America?, Sacha Baron Cohen’s unethical “let’s humiliate people Democrats don’t like by tricking them” TV show, Cohen persuaded Jason Spencer, a Republican state representative from Georgia who apparently has the IQ of a sea sponge, to pull down his pants and scream “Nigger!” on camera.

Georgians must be so proud.

Cohen claimed to be an Israeli terrorism expert named Col. Erran Morad, and recruited Spencer for a training video on how elected officials can protect themselves from terrorists. Cohen as Morad asked Spencer to act like a Chinese tourist in order to take selfie-stick photos up a suspected terrorist’s burka, so he did.  Cohen asked  Spencer to scream the “N-word” because using the “forbidden” word would help ward off terrorists, so the idiot legislator did, and with alarming gusto. (Then Baron Cohen said, “Are you crazy? The ‘N-word’ is “noony,” not this word, this word is disgusting!”)  Morad told Spencer that terrorists are so afraid of gay people that they think they will become homosexual if you touch them with  bare buttocks, so Spencer obediently took off his pants and pressed his hindquarters against his Israeli trainer, shouting, “‘Murica!”

Not surprisingly, there are calls for Spencer to resign; he has already lost his primary. Of course he should resign; an idiot like him should never have been allowed to run as a Republican in the first place, nor should such dolts have won an election, and he won two. What Cohen does is unethical, but it does have its compensations. Spencer, for his part, whined that “It is clear the makers of this film intended to deceive me in an attempt to undermine the American conservative political movement.”

No, you irredeemable fool, idiots like you undermine the American conservative political movement, and always have. Continue reading →

Sunday Evening Ethics Debriefing, 7/22/18: FISA, “Resistance” Jerks, Translator Ethics And More Problems With CVS

/ Jack Marshall / 38 Comments

Good evening!

1.  Confirmation bias test? The big news today was that the  U.S. Department of Justice and FBI have released the 412 page FISA application used to gain a Title I surveillance warrant against Carter Page in 2016 while he was working as a low-level unpaid adviser for the Trump campaign. The document is heavily redacted in its more than 400 pages. Carter Page himself—he was never charged or interviewed , which seems rather damning in itself–said today,

“‘You talk about misleading the courts, it’s just so misleading… It’s literally a complete joke.'”

The full pdf is available here.

Once again, it is impossible to tell what is going on by following the news media’s reports. It sure seems, however that once you block out the spinning by the mainstream media, this post regarding Devon Nunes’ much attacked memo on the topic was verified.  Still, I have a low rate of patience for these things, and am not the best interpreter of documents like this, so I am only relying on second hand opinions by others who have plowed through the damn thing. I’ll wait to get some reliable readings.

It seems like the critics of the Mueller investigation and the conduct of Justice and the FBI feel confident that the materials show that indeed the warrants were acquired deceptively, meaning illegally, with the unsubstantiated Steele dossier being the crux of the justification for the warrants, also considering the fact that the Clinton campaign was behind the dossier was never revealed to the judges. [Here’s a recent example of the spin being applied to that argument. The judges were told that the dossier was paid for by a person with political motives, and the claim is that this was enough, that they could figure out that it was a tool of the Clinton campaign. I’ve never understood this argument. Why weren’t the judges informed directly, then? ] Ann Althouse commenter named Yancy Ward wrote, Continue reading →

Comment Of The Day: “Ick Or Ethics? The Officers’ Coin Flip”

/ Jack Marshall / 12 Comments

I haven’t posted a Comment of the Day this month, and it’s me, not you. I have a high quality backlog, in fact: my apologies. I’ll be working diligently to catch up.

First in the queue is Arthur in Maine‘s deft reflections on the post about the police officers who flipped a coin to decide whether or not to arrest a reckless driver.  (I tend to think that it is a very well-argued “Everybody does it” rationalization, but never mind…).

Here is his Comment of the Day on the post, Ick Or Ethics? The Officers’ “Coin Flip”:

When I was going to school in Boston, I made my beer money by working in emergency medical services. Part of that work was in a district of the city, and part of it was in the northern suburbs; the latter company was a private concern that had the EMS contract for three contiguous towns and did a boatload of transfer work on top of it. A terrible company, long since sold out, but that’s another story. Suffice to say that I liked the work itself, even if the company itself was lousy.

In that role, I came to know a lot of cops and firefighters really well. They weren’t that different from us, other than the fact that their jobs were a lot more dangerous than ours – and ours were dangerous.

First-response work requires that the teams work in very close proximity with one another, and teams are mostly together for their entire shifts. Depending on the branch, shifts can last between eight hours and 48 (yes, you sleep if there’s nothing going on). Inherent in a smoothly functioning unit in all three first-response disciplines is a good relationship between crew members; partners or teams at odds with each other become a huge problem. If they can, supervisory personnel will usually do their best to ensure that the personnel in a given car or truck get along well. It’s remarkably intimate. Continue reading →

Saturday Ethics Warm-Up, 7/21/18: Seven Questions For A Rainy Day: UPDATED!

/ Jack Marshall / 20 Comments

Good afternoon!

1. What did you expect? Following close on the heels of Scott Pruitt’s firing from the EPA as a result of blatant ethics violations, Commerce Secretary Wilbur Ross said last week that he would sell all of his stock holdings to “maintain the public trust” after the Office of Government and Ethics pointed out that his financial transactions could get him into legal trouble.

“I have made inadvertent errors in completing the divestitures required by my ethics agreement,” Ross said in a statement. “To maintain the public trust, I have directed that all of my equity holdings be sold and the proceeds placed in U.S. Treasury securities.”

To maintain that public trust. Right.

The culture of CEOs and business executives is so alien to ethics that this kind of thing was assured as soon as Donald Trump was elected President. I wouldn’t say the business culture is necessarily more unethical than the political culture, it is juts unethical different ways. However, President Trump brought this brand of malfunctioning ethics alarms with him, and we shouldn’t expect it to abate until he leaves the White House.

Then we will get back to the good old-fashioned political versions of unethical conduct we’re become numb to. Ah, those were the days!

2. A question of degree. Professor Brian McNaughton, a former professor at Colorado State University, is facing a felony charge for fabricating an outside job offer to get a higher salary. This meets the technical definition of fraud. Apparently he presented the school with fabricated offer letter from the University of Minnesota. McNaughton resigned his position and apologized, and returned the fruits of the ill-gotten  raise,  about $4,000 per year over four years.

He also says that he was urged to use the tactic by other faculty members, who said it was a standard ploy. When does the “I have other job offers” gambit cross the ethics line into fraud? Clearly when you use a forged letter, but short of that, it’s just lying—unethical, but not criminal.

Writes one idealistic commentator:

…if an employee is performing a job and is good at it, that person should be compensated for it accordingly and in line with individuals within the same organization at an equivalent level professionally (ideally pay should be bench-marked against similar-sized institutions in states or parts of the country with comparable income ranges). Does a job offer and the suggestion that the employee is desirable to another organization change how well that person is performing? Promotions and rewards should be directly related to performance and an individual’s contribution to the organization and to science.

Well, yes, but competition and reality interferes with this nice, fair but overly simplistic and impractical theory. In fields where employees are not fungible, basic economic theory comes into play: you can’t deny the influence supply and demand. The fact that there is competition for an individual’s services does increase that individual’s value. Just saying “it shouldn’t be that way” doesn’t change reality. That’s what makes McNaughton’s lie fraudulent: he’s misrepresenting his value, and using false means to do it.

3. Would you fire Dan Coats for this?

Naturally the anti-Trump mob loved it, and that was the director of national intelligence’s intent: he was playing to the mob and virtue signaling to the detriment of his boss. Either than, or he’s thoroughly unprofessional and can’t be trusted to be on TV. Washington Post reporter Dan Baltz is either foolish, naive or dishonest when he writes: Continue reading →