Professions

Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

/ Jack Marshall / 10 Comments

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading →

From The Ethics Alarms “Deceit Is Lying, And Stop Saying It’s Not!” Files: Baseball Commissioner Rob Manfred Is An Ethics Dunce, So Is Craig Calcaterra, And Since They Are Both Lawyers, They Should Know Better

/ Jack Marshall / 12 Comments

My goals are modest. Before I die, I would like to be able to say that my cyber-output on ethics accomplished a few basic things. One of them is a greater public understanding that deceitful statements—you know, like “I did not have sex with that woman,” or my recent favorite, knife-murderer O.J. Simpson saying  at his parole hearing, “I’m in no danger to pull a gun on anybody. I’ve never been accused of it. Nobody has ever accused me of pulling any weapon on them”—are lies. Not “technically true,” not “lawyerly phrasing,” but lies. Yesterday one lawyer who should know better incorrectly told his readers than another lawyer who engaged in deceit wasn’t lying. I’m sick of this.

I’m sure most of you don’t know or care, but the sad Miami Marlins, the National League baseball team recently taken over by a group headed by former Yankee shortstop Derek Jeter, has been selling and trading off its best players to pare expenses to the bone. This is a long-term strategy called “tanking,” in which a team rebuilds by playing horribly and getting high draft choices for a few years, eventually building up a young, cheap talent base of a winning team. A team’s fans tend to despise this approach, and Marlins fans more than most, since this is the third mass sell-off in the team’s short and ugly history.

MLB commissioner Rob Manfred appeared on Dan LeBatard’s ESPN radio show yesterday to discuss the most recent recent Miami fire sale.  LeBatard asked Manfred directly if he was “aware of Jeter’s plan to trade players and slash payroll.” Manfred ducked and weaved, and said, “We do not approve operating decisions by ownership, new ownership, current owners or not, and as a result the answer to that question is no.”

LeBatard called  this a lie, responding, “You can’t tell me you’re not aware of this…were you aware of this?”  Manfred then said, “No, we did not have player-specific plans from the Miami Marlins or any other team . . .” He also said that the league did not see a payroll plan from the Marlins “until two days ago.”

Yet  the Miami Herald reported after the interview:

A source directly involved in the Marlins sales process, after hearing the Le Batard interview, said, via text: “Commissioner said was not aware of [Jeter] plan to slash payroll. Absolutely not true. They request and receive the operating plan from all bidders. Project Wolverine [the name for Jeter’s plan] called on his group to reduce payroll to $85 million. This was vetted and approved by MLB prior to approval by MLB. Every [Jeter] investor and non investor has the Wolverine financial plan of slashing payroll to $85 million. Widely circulated.”

Here NBC baseball blogger Craig Calcaterra, formerly a practicing attorney, and thus accorded some credibility on such topics, wrote, Continue reading →

The Unprepared Judicial Nominee [Updated]

/ Jack Marshall / 12 Comments

 

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading →

Comment Of The Day: “Comment Of The Day: “The Popeye,” From The Ethics Alarms Ethics Estoppel Files: … And My Epiphany About Investigative Reporting'”

/ Jack Marshall / 80 Comments

 

Arthur in Maine, who has kindly featured me on his radio show and actually given me sufficient time to explain things without being cut off, submitted the following discourse focusing on my embarrassingly slow-to-form realization that all investigative reporting into political matters had to be considered as manipulated to serve some political agenda by the news organization.

I’ll have some observations at the end, but first, here is AIM’s Comment of the Day on Comment Of The Day: ‘“The Popeye,” From The Ethics Alarms Ethics Estoppel Files: I Can Say The Republican Party Is Rotting…”, And My Epiphany About Investigative Reporting:

…Why are any of you – including Jack – surprised? Media is, first and foremost, a BUSINESS. It doesn’t sell news – it provides news as a mechanism for generating advertising (in the case of NPR, underwriting and/or listener) support.

The United States is one of the only so-called free nations that embraces the concept of objective media. In fact, the whole concept started in this nation – with Joseph Pulitzer (recognize the name?). In other words, the concept of objective media is an American conceit.

Pulitzer’s drive towards so-called “objective” media certainly raised standards, but it wasn’t due to the noble idea that newspapers – pretty much the only game in town at his time – should be objective. Pulitzer was the visionary who recognized that the way news was being reported was scaring off the advertisers, and the advertisers were way more important than the folks who plunked down a penny or two to buy a copy at the news stand.

American media at the dawn of the 20th century wasn’t dissimilar to the way it is today – and much like it has ALWAYS been in nations in which the media isn’t state-controlled. It’s rambunctious. It’s partisan. It wears its beliefs on its sleeve – both with regard to what it covers and the way it covers it. Continue reading →

Gender Bias And Legal Careers

/ Jack Marshall / 54 Comments

Studies show that although women have been entering the law in equal numbers to men for more than a decade, they make up just 23 percent of partners and 19 percent of equity partners. Why do so many women  leave the legal profession at what should be the height of their careers? Last month, more than 160 lawyers gathered at Harvard Law School in November for the ABA National Summit on Achieving Long-Term Careers for Women in Law to identify answers and plot a course to change the trends.

Sharon Rowen, a lawyer from Atlanta,  said her research showed three reasons women leave the practice of law: work/life balance, unconscious bias, and the pay gap. I wish I could have attended the discussion. I hope someone pointed out that seeking work/life balance is the major reason for the pay gap, and that it is not unreasonable to view that as a trade-off that is both fair and reasonable.  Rowan’s list also leaves off conscious bias that pervades society and clients regarding female lawyers, as well as law firm partners.

Iris Bohnet, professor of public policy at Harvard Kennedy School, said some women suffer from “success fatigue,” and leave “because of a work culture that forces them to minimize important parts of their lives.” They ask themselves, “Can I bring my whole self to work?” and “Is this a place where I can thrive?” What she is saying is that a lot of women don’t find the law enjoyable, and that its stresses, patterns and requirements are more accommodating to men than women. In other words, law isn’t fun for a lot of women, while men, because of the nature of males, are more tolerant of it than women tend to be. I wonder if any panelist had the guts to come right out and say that? I doubt it. I bet most of them would deny it, because it’s politically incorrect to admit any gender differences, unless they involve female superiority.
Continue reading →

Yes, Catherine Gregory Should Be Fired

/ Jack Marshall / 34 Comments

Jonathan Turley is fascinated with the issue of whether  faculty members and employees generally should lose their jobs over controversial conduct outside of the workplace, particularly when it involves political speech. “There remains an uncertain line in what language is protected for teachers in their private lives,” the George Washington law professor writes. As I’ve discussed here before, I don’t think it’s nearly as uncertain as Turley does. When a faculty member’s conduct or statements on social media make an objective observer think, “No competent, professional institution would hire someone like this,” it’s bye-bye and don’t let the door hit you on the way out.

Even Turley seems to waver in this ridiculous case.

Conservative commentator Lucian Wintrich was about to speak on the topic “It’s OK to Be White”—I LOVE that topic!— at the University of Connecticut when a protestor grabbed his notes. He in turn tussled with her, causing a near riot, and campus police arrested him.  The protestor was Catherine Gregory, associate director of career services  at Quinebaug Valley Community College.

Today the University came to its senses (or realized public opinion wasn’t going to allow it to get away with its attempt at liberal fascism) and dropped the charges against Wintrich  while charging Gregory.

What should happen to Gregory?

Gregory’s lawyer, Jon Schoenhorn argues that his client was justified in her actions because Wintrich’s views constitute “hate speech” and his actions “are beyond the First Amendment” in their insults to minorities. This is obviously nonsense, and I would argue it even qualifies as a frivolous and dishonest defense, an ethical violation. Unless the man is complete nitwit, he must know that there is no excluded variety of speech called “hate speech” that the First Amendment doesn’t protect. He’s lying, or he’s too incompetent to be a lawyer. Continue reading →

Morning Ethics Warm-Up, 12/10/2017: Posts Collide! Journalists Self-Destruct! Women Undermine Themselves! And A Poll…

/ Jack Marshall / 20 Comments

Good morning!

1  Bingo!  Amy Alkon, aka the Advice Goddess, has been staking out lonely territory as a feminist who feels the #MeToo mob and its attendant hysteria is setting the cause of women back, not advancing it. Here most recent post begins by mocking an LA Times hysteric who wrote that

“What happens when society ignores sexual assault? You get Lesotho, where girls aren’t even safe at the grocery store…”

Akon responded in part…

This sort of ridiculous hysteria — that our country is anything like a place where 19% of teenaged girls are forced to marry — makes things here cumulatively worse, not better.This is the safest, most modern, most individual rights-driven country in the world.

If you are in a profession where there’s a great deal of money and power, there are likely to be sociopaths of various stripes who will prey on you — whether you’re a man or a woman. No, sexual assault should not be ignored, but we also don’t help ourselves by turning an invitation out for a drink by a co-worker into some sort of victimization.

If it isn’t your boss trying to manipulate you into the sack when you want no such thing; if there’s no quid pro quo; if requests for a date stop when you ask for them to stop (or maybe after the second time), do you really need to identify as a victim?…

People have conflicting goals and desires. Any two people. Heterosexual men negotiate these with each other. They’re very comfortable with it — as am I, no matter what sex or sexuality you are or have. If one person isn’t holding the other down or saying “fuck me, or you lose your job…” …If there’s merely a need for a mild rebuff (like, “Sorry, I don’t date co-workers), well, this seems to me like a normal part of adult life.

I predict two things from the current hysteria (where, say, a stolen kiss from a drunken co-worker is equated with Harvey Weinsteining and may even be seen as a firing offense):

1. Employers will think twice about hiring women, especially when they have the option of hiring a commensurately qualified male.

2. Men will start seeing escort workers in larger numbers than ever, and it will become more acceptable than it’s ever been to pay for sex.

2. Who will save journalism, and when will it admit is needs saving? Washington Post politics reporter Dave Weigel‏ mocked the President for declaring his Florida rally “packed to the rafters” last week. Wiegel’s tweet included a picture of a half-empty Pensacola Bay Center.This was, it turned out, a mistake, but also a mistake brought about by confirmation bias, sloppiness, and hostility to the President. Once again, the news media handed the President the ammunition to discredit it, as it deserves to be discredited.Trump tweeted after the rally...

“@DaveWeigel WashingtonPost put out a phony photo of an empty arena hours before I arrived the venue, w/ thousands of people outside, on their way in…Real photos now shown as I spoke. Packed house, many people unable to get in. Demand apology & retraction from FAKE NEWS WaPo!”

Weigel apologized, tweeting,

“Sure thing: I apologize…Was confused by the image of you walking in the bottom right corner…It was a bad tweet on my personal account, not a story for Washington Post. I deleted it after like 20 minutes. Very fair to call me out.”

Weigel is a well-known Washington Post reporter, and the fact that he botched this in his own name rather than the Post’s doesn’t diminish its harm to the credibility of the already reeling news media one whit. The apology was nice, but it was also unavoidable. While Trump certainly has primed journalist skepticism with his adversarial relationship to reality, reporters are supposed to be professionals, and leaping to conclusions without confirmation or sufficient evidence isn’t professional, or worthy of public trust. Fact: Weigel would not have done this to Barack Obama.

Weigel’s gaffe was minor compared to CNN’s fiasco the day before, or the Brian Ross episode at ABC, but it deserves to be considered as part of the same pathology. Wrote Glenn Reynold on his blog today,

In attempting to “denormalize” Trump, they’ve denormalized themselves. If they simply reported fairly and accurately, without their screamingly obvious bias, they’d be able to do him much more damage. But they can’t help themselves.

Bingo. They can’t help themselves, and the ethics alarms when bias looms just don’t sound. Today the New York Times has a front page story, complete with a creepy photo of the President, featuring a long, insulting quote from Nancy Pelosi about how “unprepared” Trump was for the job. Oddly, nobody thought, “Wait, did we publish anything like this about the most unqualified President elected up to that  point? You know, the last one?”
Continue reading →

Back To The Bigoted Baker: It’s Complicated…More Than I Thought

/ Jack Marshall / 150 Comments

The last time (in July) I dealt with the apparently thornier-than-I-thought issue of the Colorado baker who refused to sell a wedding cake to a gay couple, I assumed that the Supreme Court would treat this as a pure public accommodations case, and side with Colorado and the couple. I was wrong. Now it is beginning to look like baker Jack Phillips may even prevail, based on the justices’ comments during oral argument.

Then I wrote, quoting my post when this case first surfaced…

“The court’s conclusion  is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.

The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”

In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.

The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”

Recent articles about the SCOTUS appeal have added some facts that I had missed, or not given sufficient weight. For example, Continue reading →

Ethics Quiz: The DNR Tattoo

/ Jack Marshall / 41 Comments

 Paramedics brought a 70-year-old man to the University of Miami hospital emergency room after finding him on the street, intoxicated and unconscious. Doctors tried to revive him got no response. Then they had an unusual problem: The man had a ‘Do not resuscitate’ tattoo on his chest, with a line under the ‘not.’ There was also something that looked like his signature. Tattoos are not legally-binding DNR orders, and in Florida, there are  very specific requirements for DNRs. to be legal.  Both a doctor and the patient must sign it, and they must be on paper, not on chests.

The doctors decided to respect the man’s tattoo. They did not try to revive him after the initial efforts failed

Your Ethics Alarms Ethics Quiz of the Day:

Was that the right call?

Continue reading →

Ethics Observations On The Acquittal Of Kate Steinle’s Illegal Immigrant Killer

/ Jack Marshall / 19 Comments

Jose Ines Garcia Zarate, a serial illegal Mexican immigrant who had been deported five times and was wanted for a sixth deportation, shot young Kate Steinle in the back in 2016. Since this occurred shortly after Donald Trump, announcing his candidacy for President, had decried Mexico “sending us murderers” across the border, Zarate took on the role of Trump’s  Willie Horton.  Zarate admitted to the shooting, but said that he had just found the gun on the street, and fired accidentally. The jury found him not guilty on murder and manslaughter charges, but he was convicted on a gun charge.

Ethics Observations:

The Kate Steinle killer came back and back over the weakly protected Obama border, always committing crimes and being violent, and yet this info was not used in court. His exoneration is a complete travesty of justice. BUILD THE WALL!…The jury was not told the killer of Kate was a 7 time felon. The Schumer/Pelosi Democrats are so weak on Crime that they will pay a big price in the 2018 and 2020 Elections….A disgraceful verdict in the Kate Steinle case! No wonder the people of our Country are so angry with Illegal Immigration.

Ugh. The question before the jury was whether Zarate murdered Steinle, not whether immigration enforcement is too lax, not whether he was a bad guy, not what previous crimes he had committed. The verdict was no more disgraceful that O.J.’s acquittal, George Zimmerman’s acquittal, Casey Anthony’s acquittal, the acquittals in the Freddie Gray case, or any other acquittal where the prosecution does not prove guilt beyond a reasonable doubt.

Nobody not on the jury or the courtroom has any basis or justification to attack the verdict.

The President’s comments are embarrassingly ignorant or dismissive of the basic principles of our criminal justice system.

  • Attorney General Jeff Sessions‘ statement following the verdict was better, but still wrong:

“While the State of California sought a murder charge for the man who caused Ms. Steinle’s death—a man who would not have been on the streets of San Francisco if the city simply honored an ICE detainer—the people ultimately convicted him of felon in possession of a firearm.When jurisdictions choose to return criminal aliens to the streets rather than turning them over to federal immigration authorities, they put the public’s safety at risk. San Francisco’s decision to protect criminal aliens led to the preventable and heartbreaking death of Kate Steinle. I urge the leaders of the nation’s communities to reflect on the outcome of this case and consider carefully the harm they are doing to their citizens by refusing to cooperate with federal law enforcement officers.”

This “but for” argument is a “Back to the Future”/”Terminator” con. The fact that it was Zarate who picked up an abandoned gun that discharged and killed Steinle—this is what the jury concluded—and not a Cub Scout, a fumble-thumbed bank teller, a stoned gay guy or Pablo Sandoval is 100% moral luck.  Yes, if Zarate was in Mexico—or Iowa—Steinle might be alive today. Or maybe not.  Also if the US gave more aid to Mexico and it wasn’t such a hell hole that its citizens keep coming here illegally, she might be alive. Maybe if Zarate’s mother had been killed by an android from the future before she met Zarate’s father…

The reason to enforce immigration laws is that they are important laws and should be enforced. Steinle’s death and Zarate’s acquittal don’t affect those facts one way or the other. Continue reading →