Professions

“The Good Wife” Jumps The Ethics Shark

/ Jack Marshall / 8 Comments

jumping the shark

I saw this coming several seasons ago- that the once ethically challenging CBS legal drama “The Good Wife” was on the way to strapping on Fonzie’s old water skis and jumping the old Ethics Shark. Sure enough, after being able to watch the show irregularly and being either confused or disappointed when I did, I finally got a chance to watch an entire episode last night. The Shark has been officially jumped and TGW is no longer bothering to check with its legal ethics consultants. This is known as “The David Kelley Syndrome,” as all of that producer’s legal dramas, “The Practice,” “Ally McBeal,” “Boston Legal,” etc, begin plausibly and end up in the Legal Ethics Twilight Zone as the writers run out of ideas.

In last night’s episode, “Cooked,” Good Wife Alicia’s defendant was charged with making GHB. He claims innocence because he wasn’t making authentic GHB, but a GHB-like substance,without the same chemical compound as GHB itself and thus less dangerous.  Alicia explains the law to him, which is that he would be better off if his intent was to make GHB but he  ended up with the pseudo GSB by mistake, instead of successfully making the possibly illegal GHB-like drug intentionally.  She says that he needs to be clear which he did, and tells him to tell the truth.

This is the common, much criticized defense lawyer tactic called “The Lecture” in the novel “Anatomy of A Murder.”  A lawyer is bound to explain the law to his or her client, and that sometimes means educating a client regarding how to “remember” what happened.

Then Alicia discovers that her defendant isn’t who he claims to be. He’s an FBI agent, and he’s part of an FBI sting to prove the judge in the case is taking bribes. She says she’s going to tell the judge about his false identity (and also that the charges were fake) so he tells her and that if she blows his cover, he’ll tell the judge that she suborned perjury by  giving “The Lecture.” She backs off, and agrees not to tell the judge.

Suspend her.

1. If she has a personal interest (Rule 1.7) that conflicts with her duty to protect client confidences (Rule 1.6), like her conflicting duty as an officer of the court to report a fraud on the court, a.k.a. THE WHOLE CASE, then the least she must do is withdraw under Rule 1.16. Continue reading →

How Can This Be Unethical, When All Lawyers Are Whores Anyway?

/ Jack Marshall / 6 Comments

(I just wanted to get this joke out of the way right at the start.)

"Need a lawyer? Here's my card..."

“Need a lawyer? Here’s my card…”

Well, we have read about all sorts of unusual lawyer avocations in Ethics Alarms—the dominatrix lawyer, the hypnotist lawyer, the superhero lawyer, the illegal immigrant lawyer, ethicist lawyer—but I didn’t expect to see this one in my home state.

An already suspended Massachusetts lawyer,  Karen Andrade, has been charged with prostitution after a police investigated a report by a suspicious neighbor and  found online reviews of both the lawyer’s legal services and her escort services. Using the name of “Rose,” Andrade frequently hosted middle-aged men her home, prompting the neighbor’s complaint. One of the men told police that he paid Andrade $150 for sex.

Observations:

  • I knew the legal profession was in a slump, but I never thought it was this bad.
  • Yes, this is an ethics violation. It is breaking the law, assuming she is found guilty.
  • Hooking calls her honesty and trustworthiness into question only because it is illegal. Would she have legal ethics problems if she were a Nevada lawyer, and no law was violated? I don’t think so. Back in 2007, I wrote about Traci Bryant, a.k.a.Anita Cannibal, the porn star who worked her way through law school at a legal house of prostitution. I conclude that if the activity is legal, nothing about prostitution appears to violate legal ethics.

See why I made that joke before you could?

 

My Reply To Eric Turkewitz’s Criticism Regarding “The Worst Aunt Ever”

/ Jack Marshall / 71 Comments
This guy would have given The Bad Aunt the right advice...

This guy would have given The Bad Aunt the right advice…

Eric Turkewitz is a New York trial attorney, by all accounts a terrific lawyer, by the evidence of his writing an ethical and astute one, in our brief encounters a very nice guy, and the proprietor of “The New York Personal Injury Law Blog.” In a recent post, he defends the decision of Jennifer Connell to sue her young nephew for a four-year old injury she received when he hugged her too enthusiastically at her birthday party. He notes, correctly, that the decision to sue was based on the client accepting a “bad call” by her lawyer. He also includes a lot of information not mentioned in the early posts on the matter, including mine. Still, he defends Connell. He also specifically criticizes my post. Eric writes,

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

“What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.”

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report. This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued.

Yes, I “actually teach ethics,” and I could, in fact, teach Eric some things that he would find useful and enlightening. I’m not going to get in a pissing match with him, in part because, as I learned from another tiff four years ago (in which I was wrong, and duly apologized), he has some very, very nasty pals, and I don’t want to throw blood in the water. This is, however, an excellent example of how lawyers often end up seeing the world, and in fact I may use his post, unattributed, in seminars to show where legal ethics and ethics diverge. It is wise for lawyers to be atuned to both.

Here was the response I made to Eric on his blog: Continue reading →

From The Ethics Alarms Double Standard Files: So Apparently A Black Professor Can Be As Racist As She Wants Without Consequences, Correct?

/ Jack Marshall / 23 Comments
Don't racist professors teach students racism? Just curious...

Don’t racist professors teach students racism? Just curious…

Unqualified GOP Presidential hopeful Ben Carson made one of his most reasonable statements when he defended the right of NASCAR fans to fly Confederate flags during races. Well of course he did, since this is the United States and we have a First Amendment. Except to the most ignorant members of the censorious left, this is literally a no-brainer: even brainless Americans should know better than to argue that flying any flag on private property should be prevented by law.

Ah, but special dispensation is due to racist African American progressive bullies. Thus is is that University of Pennsylvania religious studies professor Anthea Butler, wrote “If only there was a ‘coon of the year’ award …” when responding to a Daily Beast editor’s  tweet containing a link to a Sports Illustrated article on the issue.

Nice. This is per se denigrating Carson based on race, an ad hominem attack and beyond ugly and irresponsible. Sure, Butler has the same right to say what she wants as anyone, except when it reflects on her employer and suggests, as this tweet does, that she cannot be trusted to teach. Is any African American student who dares to question her political correctness orthodoxy risking being called a “coon” by this woman? I’d say so. She is validating racist rhetoric and modelling intimidation for her students and more importantly, the University of Pennsylvania’s students. Is it competent and responsible to employ such a woman? No. Is this within the acceptable range of “academic freedom”? Denigration on the basis of color? I want to hear a university spokesperson admit that, and then to stand up for the first white student who calls the professor a “coon.” Continue reading →

KABOOM! Justice Sonia Sotomayor Is A Supreme Ethics Dunce

/ Jack Marshall / 19 Comments

HeadExplode3

Sonia Sotomayor is far from my favorite Supreme Court Justice, as she is the court’s most vocal advocate for pro-minority discrimination and a practitioner of touchy-feely law. Still, I assumed she had integrity, or at least my skull did,  because it exploded all over the place when it learned the truth.

Federal employment law forbids employers from having unpaid positions unless they meet stringent requirements of providing genuine educational experience to such workers while not personally (as opposed to professionally) benefiting from their services. Nevertheless, Sotomayor has used  unpaid interns as her servants —not law clerks or researchers, but servants—since 2010. Continue reading →

Ethics Dunce: The Ninth Circuit Court Of Appeals

/ Jack Marshall / 11 Comments
The unethical prosecutor in US v, Flores. Watch out for her!

The unethical prosecutor in State v. Flores. Watch out for her!

It’s always heartening to see a court cite the 1935 Supreme Court case of  Berger v. United States, 295 U.S. 78, (1935), famous in legal ethics circles for its ringing statement that government lawyers must understand that their obligation “in a criminal prosecution is not that it shall win . . . , but that justice shall be done.”  The principle has been extended by some judges to civil cases as well, making the point that the government in any legal dispute should be interested only in the best interests of citizens and getting the case right. It is less heartening when the cite is in a dissent, as in this case.

The Ninth Circuit, reviewing a conviction for illegal drug importation, conceded that the prosecutor crossed into unethical territory by misstating the law,misstating the defendant’s testimony, and improperly vouching for a witness. Nonetheless, the court in State v. Flores concluded that this misconduct didn’t rise to the level of “plain error,” meaning that the defendant would have been found guilty anyway:

“In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.”

That’s right: the government misrepresented facts and law, but the jury was probably not misled. Continue reading →

UPDATE: Hillary’s Ongoing Corruption Of Democrats, Progressives, and The News Media, Featuring MSNBC’s Andrea Mitchell And Washington Post Editorial Cartoonist Tom Toles

/ Jack Marshall / 14 Comments

First, Toles. This cartoon ran on Sunday:

Toles

Isn’t that nice? The whole e-mail episode, investigated by the FBI, raising issues of mishandling of classified information (which is a crime), destruction of evidence (which can be a crime, but is always unethical and suspicious) and competence (Hillary says the security implications of making sensitive communications on a private server never occurred to her!), and which Clinton continues to stonewall and lie about, is just an invention of the news media!

Poor Hillary! Look how frustrated she is! How can sending out paid spinners and liars to muddy the water and confuse the issues be a cover-up? How can destroying e-mails before they can be reviewed be a cover-up? How can the State Department employee that she paid to moonlight as her private e-mail tech taking the Fifth Amendment to avoid testifying to Congress be part of a cover-up? How can an obvious cover-up be a cover-up?

This isn’t an ‘editorial cartoon.’ This is Spinning for Hillary, and for the Post to give it center page dominance on its editorial page is endorsing deception and partisan propaganda. Toles has always been a simplistic progressive hack; his cartoons make his predecessor Herb Block look even-handed. This goes beyond hackery, though, to misleading the public.  Or do you believe this is his real opinion? If so, he is too naive and dim-witted to have an editorial voice.

Andrea Mitchell’s Hillary enabling is of a different sort: rank cowardice. Continue reading →

Ethics Hero: Advice Columnist Carolyn Hax

/ Jack Marshall / 17 Comments
But it worked for Scarlet!

But it worked for Scarlett!

I’ve made Hax, the Washington Post’s relationship advice columnist, an Ethics Hero before. This time it’s for something more than her usual spot-on instincts about right and wrong, and more about her method of expressing them. You know I am not fond of weasel words, equivocation and gentle rhetoric when emphatic prose is called for, and Hax, though she is more prudent than I, laps her competition when it comes to firing off both barrels when it is called for.

In this response, she was responding to a man whose brother stopped speaking to him after he gently suggested to him that his niece had a huge honker for her face and it might be time to visit the local plastic surgeon. The advice-seeker lives  “in a community where a lot of teenage girls have cosmetic surgery at 16,” he explained, and both his wife and daughter had their noses made button-like. “Was I over the line in making this suggestion in a private setting?” he asked Hax.

Her unrestrained, wise and glorious response: Continue reading →

Ethics Quiz: The Lawyer’s Ned Beatty E-Mail

/ Jack Marshall / 6 Comments

miss piggyArizona Supreme Court Rule 41(g), permits attorney discipline based on the bar’s determination that an Arizona lawyer has engaged in “offensive conduct.” Now Dennis Wilenchik, an Arizona lawyer who got in a nasty e-mail exchange with a client over a fee is challenging his “admonishment,” a significant form of bar discipline, based on the surprise declaration of his contentious client that he was never offended. An admonished lawyer will usually accept discipline by consent, which in Wilenchik’s case includes a one-year probation period and anger management treatment.

The e-mail exchange began getting heated when Wilenchik called his client, who owned a medical marijuana consulting business, a “cheap asshole.” Later he threatened to sue for his fee, to which his client replied,“Bring it, bitch!”

Wilenchik’s evocative response: “OK drug dealer—I look forward to the many nights and mornings when you think of my name and squeal—you mean nothing to me. Check out the movie Deliverance.”

You know, like in this classic film moment…

Yes, cultural references to film classics are very useful. Still, it was this reference that clinched it with the disciplinary committee.

Wilenchik’s lawyer says there is newly discovered evidence showing that the client’s complaint to the bar was based on a claim that the client feared he would be gang raped because of the reference to “Deliverance.”

In a declaration, the complaining client now says he wasn’t offended by anything in Wilenchik’s emails:

“In fact, I thought that Mr. Wilenchik’s last Deliverance email to me was rather humorous actually, and stated in such a manner that neither I nor any reasonable person would or could seriously construe this to be a real intent to harm me or my family. Moreover, Mr. Wilenchik’s last Deliverance email to me was exactly what I would expect anyone, including a lawyer, to write after I sent an email saying, ‘Bring it bitch.’ In other words, these emails were harmless banter which I instigated and therefore it is impossible for me to have been offended.”

Your Ethics Alarms Labor Day Weekend Ethics Quiz is this:

Does someone have to be offended for a lawyer’s conduct to be sufficiently offensive to warrant discipline?

Continue reading →

Ethical Quote Of The Month: PBS Ombudsman Michael Getler

/ Jack Marshall / 20 Comments

pbs-logo-in-black

“One would have to lean way over backwards to give her the benefit of the doubt that she was simply shedding light on the administration’s view of portions of Netanyahu’s arguments. But to personalize it by saying, “Take that, Bibi” is, in my book, inexcusable for an experienced journalist who is the co-anchor of a nightly news program watched by millions of people over the course of any week.”

—PBS Ombudsman Michael Getler, giving no quarter and making no rationalizations to slam PBS news host Gwen Ifill for her” “Take that, Bibi” taunt via Twitter.

Bravo.

Note that he also is saying that Ifill’s defense is a lie. As indeed it was. Later, as you can read, he makes it clear that he believes that Ifill is too experienced to make the mistake she claims she made. She made a different mistake: letting her bias rule her judgment and professionalism.

What do you know, a real, honest ombudsman who doesn’t view his job as spinning for his bosses!

I wonder why the New York Times can’t find one.