Professions

Monday Ethics Revelations…

/ Jack Marshall / 67 Comments

Taking stock of ethics from a long and eventful Monday…

1. As of yesterday, Ethics Alarms is about to complete its most successful month ever in terms of traffic and new followers, beating last August by almost 2000 visitors a day. Thanks to everyone who participated. Thanks especially to the untrustworthy folks at Snopes, whose partisan manipulations and the Ethics Alarms exposure of them fueled the single most read Ethics Alarms post in any month, unseating the previous champion, this, which was a trivial post that the Instapundit, Glenn Reynolds, deemed the only Ethics Alarms story worth linking to.

2. Yesterday, I was a guest at a large and combative gathering of personal injury lawyers to work out a dispute involving lots of money, and when the time came for me to speak, I was hooted down and had it made quite clear to me that the majority of participants had no interest in legal ethics whatsoever.

3. They  made it clear that they didn’t know much about ethics either. For example, at one point a lawyer threatened to sue another lawyer for representations made on behalf of a client that the first lawyer felt impugned his character. Lawyers are immune from such suits. To the extent that the lawyer was trying to use a bogus threat to intimidate the other lawyer into representing his client with less zeal, that tactic is unethical, but still not forbidden by the legal ethics rules….because lawyers use the threat to sue all the time.

Just like Donald Trump. Continue reading →

This Just In: Journalism Ethics Is Still Dead…

/ Jack Marshall / 19 Comments

An ad currently running on the New York Times website:

Drone footage that shows Greenland melting away. Long narratives about the plight of climate refugees, from Louisiana to Bolivia and beyond. A series on the California drought. Color-coded maps that show how hot it could be in 2060.

The New York Times is a leader in covering climate change. Now The Times is ramping up its coverage to make the most important story in the world even more relevant, urgent and accessible to a huge audience around the globe. We are looking for an editor to lead this dynamic new group. We want someone with an entrepreneurial streak who is obsessed with finding new ways to connect with readers and new ways to tell this vital story.

The coverage should encompass: the science of climate change; the politics of climate debates; the technological race to find solutions; the economic consequences of climate change; and profiles of fascinating characters enmeshed in the issues. The coverage should include journalism in a variety of formats: video, photography, newsletters, features, podcasts, conferences and more. The unit should make strategic decisions about which forms are top priorities and which are not.

The climate editor will collaborate with many others throughout the newsroom, but will operate apart from the current department structure, with no print obligations. (The Times is also searching for editors to lead similar teams exploring education and gender.)

This is, of course, smoking gun evidence of a political agenda, bias, and the intent of the Times to warp policy and public opinion according to what it has already determined is “the most important story in the world.”  Continue reading →

Stupid Cops Matter

/ Jack Marshall / 72 Comments
Perfect match.

Perfect match.

In a case where Hanlon’s Razor (“Never assume malice is the explanation if stupidity will suffice”) applies but one can’t really blame a mother for thinking otherwise, police in Newark  inexplicably mistook an innocent pre-teen black boy for an adult robbery suspect and chased him through a Newark neighborhood with guns drawn. This is stupidity, not racism. Well, who knows: there could be racism mixed in there too, but what jumps out is the jaw-dropping incompetence.

Legend Preston, just ten years old, was fetching a basketball that had rolled into the street when he looked up and saw armed cops running towards him as if they meant business. So he ran.

“I was scared for my life,” Legend told reporters. “I was thinking that they were going to shoot me.” Good thinking, kid. If these cope were inept enough to get a ten-year-old  confused with Casey Joseph Robinson, a 20-year-old, dreadlocks-sporting perp with facial hair (he was arrested in the next block), who knows what they might do?

Legend was quickly surrounded by neighbors  who emphatically pointed out to the police that they were chasing a child, as the officers stammered that he “fit the description” of the criminal. Well, sort of. Okay, okay, now that we’re up close, we see that he’s under five feet tall, dressed like a kid, doesn’t have dreadlocks or facial hair, and looks nothing like the guy, except that he’s black, which means we also could also mistake him for Bill Cosby, Jesse Jackson, Morgan Freeman, or LeBron James. Continue reading →

Health And Survival Rationing Ethics

/ Jack Marshall / 26 Comments

cointoss

Beginning in 2012, Dr. Lee Daugherty Biddison, a critical care physician at Johns Hopkins and some colleagues have held public forums around Maryland to solicit the public’s opinions about how life-saving medical assistance should be distributed when there are too many desperately ill patients and not enough resources. The exercise was part of the preparation  for Biddenson’s participation in preparing official recommendations for state agencies that  might end up  as national guidelines regarding when doctors should remove one patient from a ventilator to save another who might have a better chance of surviving, or whether the young should have priority over the old.

Ethically, this is pure ends justifying the means stuff. The Golden Rule is useless—How would you like to be treated? I’d want to be left on the ventilator, of course!–and Kantian ethics break down, since Immanuel forbade using human life to achieve even the best objectives…like saving a human life. Such trade-offs of life for life (or lives) is the realm of utilitarianism, and an especially brutal variety….so brutal that I doubt that it is ethics at all.

When Dr. Biddenson justifies his public forums by saying that he wants to include current societal values in his life-for-a-life calculations, she is really seeking current biases, because that’s all they are. On the Titanic, it was women and children first, not because it made societal sense to allow some of the most productive and vibrant minds alive to drown simply because they had a Y chromosome, but because that’s just the way it was. Old women and sick children got on lifeboats;  young men, like emerging mystery writer Jacque Futrelle (and brilliant young artist Leonardo DiCaprio), went down with the ship. That’s not utilitarianism. That’s sentimentalism.

The New York Times article mostly demonstrates that human beings are incapable of making ethical guidelines, because Kant was right: when you start trading one life for another, it’s inherently unethical, even if you have no choice but to do it. Does it make societal sense to take away Stephen Hawking’s ventilator to help a drug-addicted, habitual criminal survive? Well, should violating drug laws sentence a kid to death? TILT! There are no ethical answers, just biased decisions. Continue reading →

A Plague Of Misleading Headlines

/ Jack Marshall / 11 Comments

Fake headline

The mad quest for clicks appears to be leading websites that should know better to sink to misleading or outright dishonest headlines on the web. For someone like me, who has to scan these looking for possible ethics issues, it is an increasingly annoying phenomenon. Readers need to speak up. The practice is unethical, and moreover, suggests that the source itself isn’t trustworthy.

Here are three current examples;

1. The Daily Beast: “Idiocracy’ Director Mike Judge: Fox Killed Our Anti-Trump Camacho Ads”

Boy, isn’t it just like that conservative, Trump-promoting Faux News to help The Donald by using its power, influence, lawyers, something to stop the makers of “Idiocracy,” that comic classic, from being used to save the country from American Hitler?

That’s sure how the Daily Beast wanted its largely Democratic readership to react to its headline over the story about a fizzled effort to use the the film’s character  of ex-porn star future U.S. President Dwayne Elizondo Mountain Drew Herbert Camacho, played by Terry Crews, in a series of comic spots ridiculing Trump’s candidacy. The story, however, never quotes Judge as saying Fox—that would be the movie side of Twentieth Century Fox, not Fox News, which had no say in the matter: the company produced the film and owns the right to it and all of its characters—killed the project.  All Judge says is that the idea of doing a series of such ads didn’t come to fruition, for a whole list of reasons which might have included Fox’s distaste for the project.. Of  Fox, he says this..

“I think also Fox… yeah, they… even though they’ve probably forgotten they still own it…”

The writer then suggests that company owner Rupert Murdoch might not like the idea, and thus prompted, Judge replies,

“Yeah. That’s the other thing. I think there was a roadblock there, too…I just heard that [the proposed ads] were put on the shelf, so it looks like they’re not going to happen.”

Based on this, the author, typical Daily Beast hack Marlow Stern, writes, “It looks like Fox refused—and the ads are now dead.” Stern never says that Fox refused; it is the “reporter” who says it. Meanwhile, when the Daily Beast writes about “Fox,” it is referring to Fox News 99.9% of the time, and knows that’s what its readers will think when they read “Fox.”

The headline is intentionally misleading, and a lie.

(Incidentally, the movie is a great concept that under-delivers on its premise and potential, and should be a lot funnier than it is) Continue reading →

From The Ethics Alarms Mail Bag: “Does It Matter If A Lawyer Is A Neo-Nazi?”

/ Jack Marshall / 70 Comments
"Anyone who would hire this lawyer is evil! EVIL!!!"

“Anyone who would hire this lawyer is evil! EVIL!!!”

“…What if he’s hired for a government job?”

This is a great question, and I’m going to bedevil the lawyers in my upcoming ethics seminars with it. It’s not a hard question, though.

The answer is, “No, it doesn’t matter, just as it doesn’t matter if the lawyer is a Republican, a vegan, a libertarian, a creationist, a global warming denier, an Adam Sandler fan, a Donald Trump loyalist, a Muslim, an ISIS sympathizer, a Druid, a Celine Dion worshiper, a New York Yankee fan or anything else. Lawyers have First Amendment rights. Lawyers can think what they want to, believe what they want to, donate where they want to and spout whatever unpopular or offensive opinions they want to, as long as it doesn’t interfere with their representation of their clients.

What prompted the question was this post on the Southern Poverty Law Center (SPLC) website, which attempts to use guilt by association and classic McCarthyism tactics to smear the City of Baltimore because of what the lawyer defending it in a law suit believes. The SPLC—which itself often resembles a hate group–writes, Continue reading →

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 →