Professions

Was It Ethical For Donald Trump’s Former Lawyer To Trash Him In The Huffington Post?

/ Jack Marshall / 16 Comments

Backstabbed

That’s an easy question.

The answer is maybe, and no.

A couple of weeks ago, a real estate lawyer named Thomas M. Wells provoked a lively debate in the legal ethics community when he authored a Huffington Post piece titled “Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.” I’m proud to say that I flagged the issue for my colleagues first, in part because they unanimously detest Trump, even the tiny minority who aren’t full-blooded Democrats or progressives, and may have been blinded by that bias.

For me, the issue was crystallized by the headline. Wells’ headline (it doesn’t matter if it was really his or the site’s: as a lawyer, he is obligated to make sure that his article doesn’t breach legal ethics rules and principles, and the headline is part of his article) suggested that he had some special knowledge and authority regarding Trump because of what he had learned while representing him decades ago. The ethics rules prohibit lawyers from revealing client confidences, which are usually defined as what a lawyer learns about a client during the course of a representation that the client would not obviously want revealed to the world. Confidences can be revealed by actions, as well as words, and the headline comes very, very close to saying “I know things you don’t about Donald Trump because of what learned when I was his trusted lawyer.” What follows from that may be  a reader’s conclusion that the post reflects secret information. Thus the headline made my legal ethics alarms sound.

Wells has the same right as you or I to register a public opinion about his former (or current, for that matter ) client, as long as the opinion doesn’t interfere with his representation. Lawyers do not give up free speech right by being lawyers. That’s where the “maybe” comes from. There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession. Continue reading →

Unethical Headline Of The Month: The Daily Caller

/ Jack Marshall / 4 Comments

Dewey Truman

You can hardly publish a more inaccurate. misleading and dumb headline than this one, appearing on the right-wing news and opinion site, over a report by Kevin Daily about the American Bar Association passing a new addition to its Rule 8.4, the ethics rule that defines ethical misconduct, as follows:

It is professional misconduct for a lawyer to: . . . (g) knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in conduct related to] [in] the practice of law.

Now here is the headline:

Lawyer Lobby Will Now Disbar You For Making An Off Color Remark

And here is how unconscionably misleading and absurd it is:

“Lawyer Lobby”: The American Bar Association is a lawyer’s professional association, and sure, it does some lobbying. However, lobbying is a small, small proportion of its activities. [ Full disclosure: I usually do a couple of ethics seminars for the ABA every year.] Calling it  a lobby suggest that the ABA is primarily political, which it is not. The ABA publishes books, holds educational events, provides indispensable legal assistance to all branches of the profession, facilitates networking, issues critical legal ethics opinions, and many other useful and important services for lawyers.  One reason the ABA doesn’t lobby much is because it represents all kinds of lawyers, and being lawyers, they don’t agree on many issues.Prosecutors, judges and criminal defense attorneys have very different perspectives; so do plaintiffs lawyers and corporate attorneys. “Lawyer Lobby” is an inept and misleading description of the ABA.

“Will Now”: No. Not even close. The proper wording would be “NEVER has, can or will.” The ABA isn’t a bar, and can’t disbar anyone. Any lawyer can belong to the ABA, but the ABA doesn’t have any say in who practices law. The Robert DeNiro “Cape Fear” had an embarrassing line where a lawyer played by Gregory Peck, who should have known better, talks about making an ethics complaint to the ABA to get Nick Nolte’s character “disbarred.” Embarrassing. This part of the headline affirmatively makes Daily Caller readers stupid. Continue reading →

Is “The Goldwater Rule” Necessary?

/ Jack Marshall / 20 Comments

Barry Goldwater

From an  edict handed down last week by the head of the American Psychiatric Association:

“Since 1973, the American Psychiatric Association and its members have abided by a principle commonly known as “the Goldwater Rule,” which prohibits psychiatrists from offering opinions on someone they have not personally evaluated. The rule is so named because of its association with an incident that took place during the 1964 presidential election. During that election, Fact magazine published a survey in which they queried some 12,356 psychiatrists on whether candidate Sen. Barry Goldwater, the GOP nominee, was psychologically fit to be president. A total of 2,417 of those queried responded, with 1,189 saying that Goldwater was unfit to assume the presidency.

While there was no formal policy in place at the time that survey was published, the ethical implications of the Goldwater survey, in which some responding doctors even issued specific diagnoses without ever having examined him personally, became immediately clear. This large, very public ethical misstep by a significant number of psychiatrists violated the spirit of the ethical code that we live by as physicians, and could very well have eroded public confidence in psychiatry… I can understand the desire to get inside the mind of a Presidential candidate. I can also understand how a patient might feel if they saw their doctor offering an uninformed medical opinion on someone they have never examined. A patient who sees that might lose confidence in their doctor, and would likely feel stigmatized by language painting a candidate with a mental disorder (real or perceived) as “unfit” or “unworthy” to assume the Presidency.

Simply put, breaking the Goldwater Rule is irresponsible, potentially stigmatizing, and definitely unethical.”

Naturally, as he is significantly responsible for much that is going haywire in the culture—CNN experts using words like “dick” on the air, a Fox News star and a Wall Street Journal editor calling each other names on Twitter, the New York Times announcing that it no longer is even pretending to follow its own ethics code—this can be partially placed at the feet of Donald Trump, though Ann Althouse’s suspicions that it is really designed to protect Hillary Clinton cannot be discarded.

I agree that professional groups that use their collective weight and credibility to assume greater influence in political matters than their biases and relevant expertise warrant are abusing their positions. I agree that psychiatrists pronouncing public officials mentally unfit for office without the same kind of examination that they would demand with a patient is a dubious practice, ripe for abuse. Still, I wonder if the situation with Trump doesn’t pose a different problem. Continue reading →

No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes

/ Jack Marshall / 9 Comments
"A feminist lawyer like Estrich taking on the same clients men do? That's outr...wait, what side am I on again?"

“A feminist lawyer like Estrich taking on the same clients men do? That’s outr…wait, what side am I on again?”

Fired Fox News creator Roger Aisle hired renowned feminist lawyer and teacher Susan Estrich to defend him against the sexual harassment law suit filed by former Fox Blonde Gretchen Carlson. Responding to shock and disappointment among some feminists and others that Estrich would “abandon her principles” to defend such a client, Slate’s feminism reporter Nora Caplan-Bricker authored a post titled “The One Good Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes.”

This is in the category of a supposedly enlightening post that actually makes readers less informed. There only needs to be one Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes, and it is a great reason. Susan Estrich is  a lawyer; lawyers defend people who are sued; lawyers do not have to agree with, support or approve of  a client’s alleged actions requiring such a defense; and there’s is no reason in legal ethics or any other ethical system that argues that a U.S. citizen shouldn’t have access to the best representation possible.

For her part, Estrich has said that she is taking the case because “The individual gets convicted long before he or she has had an opportunity to defend himself. And that’s not fair, whether it is happening to a woman or a man.” That’s the civil law equivalent of the late Johnnie Cochran defending his accepting O.J. as a client by saying, “In this country, everyone has the right to be treated as innocent until found guilty by a jury of his peers.”

Partial translation of both statements: “I’m a lawyer, and I don’t judge my clients. That’s not my job. My job is to help them use the law and legal system for their own purposes and protection, like any other citizen.”

I’ve written about this aspect of lawyers’ vital function in society, one that non-lawyers just cannot seem to grasp, so many times. Here’s a recent post; but maybe this one from 2015 is more on point. That one was about progressive legal icon and Harvard law prof Larry Tribe representing Peabody Energy, the world’s largest private-sector coal company, in a lawsuit that sought to invalidate some EPA regulations adverse to their horrible, evil, earth-destroying–but legal!–business. Tribe was called a traitor to the Cause of turning the U.S. into a wind and solar run nation, and I explained that the attacks on him, like all such attacks, were based on a stubborn lack of comprehension by non-lawyers, writing..

That is what lawyers do, and what they exist to do: represent citizens and companies as they seek to avail themselves of their guaranteed right to use the law to protect their interests. The public and media just don’t get it, and appear to be immune from educating on the subject: what your lawyer personally believes about your cause doesn’t matter. His or her job isn’t to judge you or your purpose. It is to give you the chance to use your rights to due process and the courts to have the law work for you rather than against you, and to have your position, if legal, serious and offered sincerely, represented by the best legal talent available.  Whether or not Tribe personally believes or supports the position being taken by his client is irrelevant to his role, unless he is so unprofessional (as in emotional and unable to overcome his own biases) that he can’t represent a client whose objectives he opposes. Then he would be obligated to refuse the representation. Then he would also be a poor lawyer, and Lawrence Tribe is anything but.

Replace “Larry Tribe” in that paragraph with “Susan Estrich”, and save me some time.

Thanks! Continue reading →

When A Polarized News Media Makes An Informed Public Impossible: A Case Study

/ Jack Marshall / 34 Comments

Organophosphate brain damage

The question: Is there something seriously wrong with Hillary Clinton’s health?

The answer: Based on news reporting, there is absolutely no way for an objective citizen to know.

The so-called right wing media, especially websites and blogs, have been circulating the theory for some time that Clinton exhibits signs of some form of brain damage, either from a fall or a stroke. (You will recall that she had a serious fall and a concussion a few years ago.) Matt Drudge has focused on Clinton’s periodic coughing fits, which, the theory goes, are in part the side effect from anti-seizure medication.

As well-versed as I am in the almost total lack of objectivity within the mainstream media, particularly where Hillary Clinton is involved, I have apparently been programmed by their automatic disdain for “conservative stories” that I have never given this theory any credibility. Surely, surely, no matter how biased they are, legitimate journalists would feel an obligation to investigate something as important as the health of a Presidential candidate. I assumed—I still assume—that this has been investigated. I assumed—and I’m trying to still assume—that if something was wrong, the news media would feel duty-bound to report it.

My confidence is wavering, however. Since mid-July, video snippets have been widely viewed on the web showing Clinton behaving oddly. Some bloggers, notably Mike Cernovich (who is trying to sell a book) found troubling moments during the recent convention and after it. This moment, for example, from an August 4 rally, where Clinton appeared to freeze…

The Secret Service agent who rushes to her side first says “You’ll be OK,” and then “Keep talking.” Observers have speculated that Hillary’s protectors have been briefed and trained on how to handle  a seizure.

Then there are these episodes…this, from June (the date on the video is wrong, and the assertion about an “epileptic seizure” is unsubstantiated) where Clinton’s head seemed to come unhinged… Continue reading →

The Good News: At Least The Cops Didn’t Shoot Anyone In This Traffic Stop, And No One Got A Ticket For “Driving While Black”… The Bad: What They Did Was Still An Abuse Of Authority

/ Jack Marshall / 17 Comments
Pop Quiz: How many idiots in this photo?

Pop Quiz: How many idiots in this photo?

Is this really what we are going to put up with now—city police departments so desperate for love (and not to have their members picked off by snipers) that they start pandering to citizens in idiotic ways? That’s not the way to earn anyone’s respect and trust. It is, however, a good way to lose it.

Three NYPD officers from the 101st Precinct in Far Rockaway cops  pulled over the car being driven by Yehuda Coriat, 22, with his 20-year-old girlfriend, Sorah Oppen as a passenger. The police accused the couple of transporting weapons and drugs in the car.

Then they grilled Oppen about her boyfriend, ordered her out of the vehicle, and told her to open the trunk — and out came balloons! That was the cue for Coriat to get down on his knee and propose!

Awwww.

Yecchh.

This is wrong, wrong, wrong; an especially horrible example of the “Awww!” Factor, in which conduct that makes sentimental souls get all gooey inside is mistaken for ethical conduct. Continue reading →

Leading Candidate For Most Unethical Opinion Column Of 2016: Daily Beast Editor Goldie Taylor

/ Jack Marshall / 23 Comments

Ox-Bow-still-3

How a major U.S. news and public affairs website can produce an article like Daily Beast Editor-At-Large Goldie Taylor’s is a fertile subject for inquiry, as is the question of how much the ignorant, un-American, values-warping assertions it contains are reinforced throughout our rising generations’ education and socialization. Those investigations must wait for another day, when I have the stomach for it.

For now, let’s just consider what Taylor wrote. It is titled “Six Baltimore Cops Killed Freddie Gray. The System Set Them Free,” an unethical headline that kindly warns us regarding the awfulness to come. No, six Baltimore cops did not kill Freddie Gray, as far as we, or the system, knows based on the evidence. That Taylor would state such an unproven and unprovable statement as fact immediately makes her guilty of disinformation, and shows that she is willfully ignorant of the principles of American justice, as well as too hateful and biased to comprehend them. Damn right the system set them free. That’s because in the Freddie Gray cases the system worked spectacularly well, despite the best efforts of an incompetent and biased prosecutor to make it do otherwise.

And that was just the title. The rest is infinitely worse: if you are feeling sturdy, read it all here. If not, the selected highlights (lowlights?) to follow will suffice.

Taylor wrote early on, Continue reading →

KABOOM! An Unethical Quote Of The Week So Outrageous That It Made My Head Explode…By Ben Carson

/ Jack Marshall / 50 Comments

headexplode

“If Melania’s speech is similar to Michelle Obama’s speech, that should make us all very happy because we should be saying, whether we’re Democrats or Republicans, we share the same values. If we happen to share values, we should celebrate that, not try to make it into a controversy.”

—Dr. Ben Carson, making an absurd but original argument to justify Melania Trump’s plagiarism.

What?

WHAT???

Observations while I clean up bits of my skull and brain and get the superglue: Continue reading →

Donald Trump Candidacy Ethics Train Wreck Passenger List Update: Georgetown Law Prof. Paul Butler Scores A Perfect Rationalization #28

/ Jack Marshall / 10 Comments
We're real sorry about this, but these are not ordinary times...

We’re really sorry about this, but these are not ordinary times…

The human ethics train wreck named Donald Trump is now in the process of exposing how thin the veneer of professionalism is for many alleged intellectuals, scholars and lawyers. On an e-mail list of most of the legal ethicists in the country, one of them posted this in reaction to Justice Ginsberg’s unethical and unjudicial shots at Donald Trump:

“I love RBG way too much to be critical of her in any way . Long may she live!”

This opne expression of willful denial, from not merely a lawyer, but an ethics specialist! It is the epitome of one of my father’s favorite quotes, “My mind’s made up, don’t confuse me with facts.” I responded to the list that it was the most depressing statement I had ever read from any of the list’s participants.

Paul Butler’s op-ed in the New York Times isn’t much better. The Georgetown Law Center professor defended Ginsberg’s indefensible comments by arguing that these times are special, and thus suspend the ethics principles that must govern judges if the judiciary is to engender any respect or trust at all. He writes:

“Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist — has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no.”

No, Professor, the answer must be “yes.” Continue reading →

Essay: On Loretta Lynch And Fighting Cynicism And Distrust Regarding The FBI Investigation Of Hillary Clinton

/ Jack Marshall / 14 Comments

America_Falling_Apar

Warning:

This is long.

I think it’s important

In the wake of Attorney General Lynch’s acknowledgment of wrongdoing in meeting, however briefly and innocently, with Bill Clinton, some  reader comments here are redolent of the destructive distrust of government and leadership engendered by this administration and others, particularly Bill’s. Yet this attitude feeds on itself, and is to an extent a self-fulfilling prophecy. If leaders think that people expect corruption, they are less likely to shy away from it. Cynicism leads to acceptance. Of course, this is one explanation of why the tarmac meeting took place—pure arrogance and a belief that with the news media’s complicity, now virtually any degree of government dishonesty and corruption will be either effectively hidden from the public, or accepted by it.

This is untrue, still. Indeed, this episode is proof that it is untrue, though the news media did make (disgusting and ignorant) efforts to shrug off the clear appearance of impropriety represented by Lynch having a meeting with Clinton the Impeached under these circumstances. Why do I labor trying to write these essays explaining the legal and ethical context of such events if readers are so poisoned by bitterness and distrust that they can’t or won’t process them, and just default to “it doesn’t make any difference, all is shit, all is lost”?  If I believed that, I wouldn’t be spending time—work  time, uncompensated time—writing this stuff. I can earn peanuts directing professional theatrical productions: it makes people happy, gives actors work, and is a lot more fun, believe me.

Paranoia, suspicion, despair, and conspiratorial views of government, which are all these comments represent, are just forms of bias. Bias makes us stupid, and in this case, bias makes us dysfunctional as a people and fearful and miserable as individuals. Continue reading →