The Internet

Tea Party Vengeance

/ Jack Marshall / 8 Comments

What possible justification can there be for setting out to get someone fired for expressing a private opinion, however crude or confrontational? Vengeance isn’t a justification. Intimidation isn’t a justification. Neither is “because I can.” Causing someone to lose his or her job as retribution for legal conduct with no connection to that job is meanness for the sake of meanness, bullying, and a bright-line violation of the Golden Rule.

This is what the head of a prominent Tea Party organization did to Lance Baxter. Continue reading →

Ethically Irresponsible Headline of the Month: The Drudge Report

/ Jack Marshall / Leave a comment

“WILL OBAMA RETURN $994,795 IN GOLDMAN SACHS CAMPAIGN CONTRIBUTIONS?” screams the Drudge Report, in response to the Obama Administration’s charges of fraud and corruption at Goldman Sachs.

What exactly is this headline trying to imply? Continue reading →

Cowardice Trumps Duty: The Oprah Bio Freeze-Out

/ Jack Marshall / 3 Comments

Sometimes professionals reveal the flaws in their ethical armor in their handling of the little things.

Celebrity shark Kitty Kelley, who has wounded other celebrities with dirty-linen airing, unauthorized biographies (supposedly her hatchet job on Frank Sinatra caused Ol’ Blue Eyes to consider having her whacked), has sunk her teeth into Oprah Winfrey. The usual, well-worn method that get such bio-trash sold is a media tour, and Kelley is a veteran of it, having used interviews and talk-show experiences to make best-sellers out of her bios of Jacqueline Kennedy Onassis, Elizabeth Taylor, Frank Sinatra, Nancy Reagan, the British Royal Family, and the Bushes. But these were just icons, super-stars, idols, royalty and world leaders; now that Kelley is taking on the Big O, all bets are off. It has been reported in multiple sources that the usual facilitators of Kelley’s book plugging efforts have been turning Kelley’s publicist down. They don’t want to cross Oprah. Continue reading →

King Downloading Backlash: Randy and the Rationalizations

/ Jack Marshall / 6 Comments

Ethics Alarms wasn’t the only one to challenge Randy Cohen’s embrace of illegal downloading in his “The Ethicist column last week. It caused a great deal of debate elsewhere, and , as usual, most of the tech heads sided with Cohen. Two of the most common arguments were endorsed by the excellent blog Tech Dirt. The first is the most popular, and the easiest to discard. The second is equally wrong, but explaining why takes longer. Continue reading →

Whatever Else It Is, Move-On.Org Is Not Hypocritical

/ Jack Marshall / 7 Comments

The Wall Street Journal blog “Best of the Web” suggests that Move-On.Org’s latest fund appeal is hypocritical. Why? Well, the progressive organization is now promoting the version of health care reform that finally passed, although during the endless debates and bill-drafting it opposed the same bill, saying…

“America needs real health care reform–not a massive giveaway to the insurance companies. Senator Bernie Sanders and other progressives should block this bill until it’s fixed.”

Is Move-On talking out of both sides of its metaphorical mouth? Continue reading →

Apology: How I Became an April Fool and an Ethics Dunce

/ Jack Marshall / 37 Comments

I’m not going to spin this. My conviction that the web hoax engineered by trial lawyer/blogger Eric Turkewitz violated the legal ethics rules was the product of a toxic mix of factors, prime among then being that I didn’t review my own files. When I finally, after nearly two days of answering complaints when I should have been hitting the books, checked the Rules of an ethics bellweather state that I often work in but had not for longer than usual, I read this:

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the
lawyer’s fitness to practice law;

This is an unusual version of Model Rule 8.4; indeed, the only other state to have adopted it (I think—I am no longer sure of much) is Wyoming. Yet it is a very useful variation of the Model Rule, because it eliminates all ambiguity about whether “dishonesty, fraud, deceit or misrepresentation” is meant to be as sweeping as it sounds. This formulation makes it clear that non-legal practice violations are covered, but that they have to reflect adversely on the lawyer’s fitness to practice law to qualify.

I had been wallowing in obscure clues from other jurisdictions–Tennessee, for example, which has the ABA wording but an odd Comment that begins…

[4] Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law…

This could be taken to mean that all such conduct reflects adversely on fitness. The problem is, I don’t believe that, and I don’t believe that Tennessee means that.

The 8.4 version that I found was from…Virginia. Where I live. Where I have done more ethics CLE than anywhere else, beginning before the state even adopted the Model Rules format. Seeing this, two conclusions were unavoidable:

1. This is the predominant way jurisdictions think about 8.4. No state has rejected Virginia’s approach, and several have referenced it in Legal Ethics Opinions on the topic of what kind of non-legal practice-related conduct is covered by the Rules—-not subject to discipline, as I was arguing the past two days, but covered at all. The D.C. Bar has such an LEO, number 323, from 2004. I had a copy on file. The District of Columbia, where I’m a member of the bar.

2. I had made a big and inexcusable mistake, and compounded it by acting like the King of the Jerkwads. Continue reading →

April Fool’s Day Ethics

/ Jack Marshall / 17 Comments

What should be the standards of ethical conduct on April Fool’s Day? Research indicates that the tradition is a long one, and versions of Spring foolishness celebrations have been around for centuries. One source says, “April Fools’ Day is observed throughout the Western world. Practices include sending someone on a ‘fool’s errand,’ looking for things that don’t exist; playing pranks; and trying to get people to believe ridiculous things.”

Continue reading →

Arg! “The Ethicist” Endorses Piracy!

/ Jack Marshall / 15 Comments

Ah, another Sunday, another chapter in the crusade of Randy Cohen, a.k.a “The Ethicist,” to redefine the definition of “ethical.” I used to read “The Ethicist” column in The New York Times  magazine out of professional curiosity, later, bemusement, and now I read it as a diagnostic exercise. Where did Randy acquire his bizarre fondness for certain forms of dishonesty? For the record, Cohen’s batting average of actually giving ethical, rather than unethical, advice appears to be holding steady at .750, which means that he advocates unethical means one out of every four inquiries. I’d say Charley Rangel would do better, and nobody’s likely to call him “The Ethicist” any time soon.

This Sunday, Randy is endorsing web piracy…really. Continue reading →

Of Interns, Heroes, and Hoaxes

/ Jack Marshall / 11 Comments

Intern exploitation: The New York Times explores the burgeoning practice of using unpaid interns, exploiting college students and graduates desperate for experience by “allowing” them to do menial office tasks without even minimum wage compensation. It is a perfect scheme, really: the student doesn’t want to burn bridges, so doesn’t complain, and the company avoids hiring a worker. The problem is that it is dishonest and unfair, as well as illegal.

Remembering Ethics Hero Jerry terHorst: J. F. terHorst has died, and though he was a distinguished reporter, what made him an Ethics Hero was one act of principle unrelated to reporting. Continue reading →

The Evolving Ethics of Joke Theft

/ Jack Marshall / 3 Comments

Kal Raustiala, a Professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a Professor at the University of Virginia Law School, are counterfeiting and intellectual property experts who hang out at the Freakonomics blog, and their latest post discusses how the world of stand-up comedy deals with joke theft. Some of the commentary will remind you of the Monty Python sketch in which a professor dryly lectures (with demonstrations) on the art of slapstick, but their observation is important: professional comics have developed a series of standards, enforced informally by such methods as shunning, shaming, and confrontation (and the occasional punch in the face) to discourage theft of a form of intellectual property that cannot be efficiently protested by copyright or trademark law. Continue reading →