Is Continuing Legal Education A “Farce”?

/ Jack Marshall / 17 Comments

Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.

AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all,  charge for.

Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.

Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.

Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):

Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.

To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!

Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.

This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!

Continue reading →

Morning Ethics Warm-Up, 11/1/2018: Battling Toddlers, Racist Lemons, And Justices In Love

/ Jack Marshall / 83 Comments

Welcome November!

1. Warm-Up musings…I suspect that the Warm-Up format costs the blog traffic, potentially a lot of traffic. If each was broken into components and posted individually, there would be a lot more clicks. Of course, I wouldn’t have time to post each separately—I estimate that a single post adds 15 to 20 minutes to the process—and there would be fewer issues covered. Capturing more of the events and issues that get into my files is one of the main reasons I started this. A better blog but less appreciated? Nah, I’m not going to measure success by traffic, as tempting as it is. I resist click-bait—there are topics that guarantee flood of comments—and don’t resist posting analysis that I know will cost me followers: I literally watch the numbers go down. And, of course, there are once regular readers who have fled because I have been consistent in my approach to the Trump Presidency, and regard his treatment by the “resistance,” Democrats, progressives and the news media as a national ethics catastrophe, irrespective of his own neon flaws. They fled, in part, though they will not admit it, because they simply could not muster valid arguments for why this President did not deserve the same presumptions of good will, good effort and public loyalty as every other President, traditional benefits that are essential to the office working and the nation thriving. What they represented as arguments were really presumptions of guilt and the byproduct of hateful group-think magnified by confirmation bias. I hope they eventually get well, and that when they do they aren’t too remorseful for being appropriated by an angry mob.

In the subsequent items, I’ll briefly explain why they are here rather than in a full post.

2. Unethical quote of the week: Don Lemon. Again. Earlier, Lemon said on his CNN platform,

“We have to stop demonizing people and realize the biggest terror threat in this country is white men, most of them radicalized to the right, and we have to start doing something about them. There is no travel ban on them. There is no ban — you know, they had the Muslim ban. There is no white-guy ban. So what do we do about that?”

Like so much Lemon says, this was incoherent, biased, and intellectually lazy. He said to stop demonizing people, and demonized a gender and race in the same sentence. “Start doing something” is typical political humming: do what, exactly? Lock them up? What? Any fool can say “Do something!”, and Lemon is just the fool to say it.  The travel restrictions are a non-sequitur, the kind of lame-brained argument that social media advances in memes and “likes.” Those restrictions involve non-citizens and their ability to immigrate. It was not based on race or ethnicity, but nation of origin. It’s an ignorant and misleading statement. “There is no white-guy ban. So what do we do about that?” is flat out racist, and intended to be—unless Lemon can’t speak clearly, which you would assume is a job requirement. A responsible news organization would have fired him, but he’s black and gay, so that’s not going to happen.

Then he came back and said this:

“Earlier this week, I made some comments about that in a conversation with Chris [Cuomo]. I said that the biggest terror threat in this country comes from radicals on the far right, primarily white men. That angered some people. But let’s put emotion aside and look at the cold hard facts. The evidence is overwhelming.”

Continue reading →

The Astounding, Clueless, Unethical And Doomed Hiring Of Brodie Van Wagenen

/ Jack Marshall / 15 Comments

‘Conflicts of interest? I have no idea what you mean…’

Disclaimer: This is NOT a baseball ethics post. This is a business ethics post about a major ethics issue,  and the business happens to be a major league baseball team.

This week the New York Mets stunned the baseball world by hiring Brodie Van Wagenen—that’s him on the left—as its new general manager.

He is not only being hired to manage the business of a major league baseball team without having ever worked for a baseball organization in any capacity. That would be strange enough. He is also a player agent who has been the representative of several key players currently under contract to the Mets, meaning that he acted for them in negotiating against the team he now heads.Van Wagenen made $25 million in commissions last year on player contracts.

Anyone whose ethics alarms weren’t set ringing like the bells during the Great Chicago Fire by the Mets decision doesn’t understand what a conflict of interest is. Guess who this category includes. Yup: Van Wagenen and the New York Mets.

In a press conference at Citi Field, Mets executives were asked about the conflicts issue, which should have been predictable, mandating a careful, thorough answer.  As a player agent for Creative Artists Agency (Van Wagenen has divested himself of all shares in the company and future commissions…at least he figured out that much) Van Wageman’s responsibility was to negotiate the most lucrative contracts for his clients. As the a general manager for the New York Mets, his responsibility is to build a successful team within its resources, regardless of the best interests of his former clients, the players he worked with over the past 18 years. When the “C” word was raised bu reporters,  Mets President Fred Wilpon interrupted before Van Wagenen could answer  and said that he had spoken with the commissioner’s office and Major League Players Association chief Tony Clark, adding, “We have provisions in Brodie’s contract to deal with any conflicts of interest.”

Oh! Well never mind then! The contract deals with it, and the Mets have spoken to people! All taken care of!

Neither Wilpon nor Van Wagenen would say what those provisions were, but I guarantee this as an ethics specialist: the only provision that could effectively deal with Van Wagenen’s conflicts would be “Van Wagenen can’t be the Mets general manager.” Continue reading →

Unfinished World Series Ethics Business

/ Jack Marshall / 5 Comments

Today the victorious Boston Red Sox took their now traditional duck boat parade through Boston and down the Charles River, so even for the Sox, the 2018 season is officially done.  My job isn’t however, because there were two striking examples of moral luck and consequentialism during the World Series, and apparently I was the only one who noticed.

I. The “Bad News Bears” moment.

When Red Sox Game 4 starter Eduardo Rodriguez surrendered what seemed at the time to be a decisive three-run homer to Yasiel Puig, putting the Sox behind in the 6th inning 4-0, he angrily hurled his glove to the mound. Commentators joked about how he resembled the Bad New Bears’ combative, potty-mouthed shortstop Tanner in the Little League classic, but other than the ribbing, nobody criticized “E-Rod.” Indeed, his manager, Alex Cora, exonerated him for the home run, saying that he, the manager, screwed up by letting his tiring pitcher face the dangerous Puig.

Yet earlier this season, Boston reliever Carson Smith, regarded as an important member of the Red Sox relief squad, threw his glove in the dugout after giving up a home run, and partially dislocated his shoulder. He was lost for the season, and both team officials and Boston sportswriters blamed Smith for his injury. He injured himself you see. It was stupid and selfish, and showed him to be unprofessional and untrustworthy. Many thought Smith should be fined, or even released. Yet it was a completely freak injury. It wasn’t as if Smith had punched a wall or a water cooler. Baseball players throw their gloves all the time, and I’ve never seen it injure anyone. So why was Carson Smith treated as a pariah for throwing his glove, but Eddie Rodriguez doing the same thing shrugged off? The only reason is that Smith’s angry gesture happened to injure him , which nobody, including Smith, could have predicted. In fact, Rodriquez was more, much more, irresponsible than Smith, because he knew throwing a glove could cause an injury. He knew, because it happened to Smith. Continue reading →

Halloween Ethics Warm-Up, 2018: Problematical Communications Edition

/ Jack Marshall / 28 Comments

Boo!

1. How can CNN, or anybody, continue to justify employing Don Lemon as a “journalist”?

He defaults to emotion regularly. He is incapable of objectivity. His partisan and ideological bias is palpable. ( He gets drunk on the air every New Years…) And he says idiotic things like this. Good for Scalise, the perfect individual to flag Lemon’s incompetence. His Twitter followers have also noted many other cases of Democrats “killing people.” Or is Lemon and CNN going to stand on the fact that nobody was killed by the Bernie Sanders-supporting sniper who seriously wounded Scalise? I wouldn’t be surprised.

2. Stop making me defend Hillary Clinton! During an interview with Recode executive editor Kara Swisher (full disclosure: I had some unpleasant experiences dealing with Swisher in her Washington Post days, and wouldn’t trust her to walk my dog around the block.)  in New York City over the weekend. Swisher asked Clinton a question regarding a quip that was previously made by Holder, but mistakenly attributed it to Senator Spartacus, Cory Booker. “What do you think of Corey Booker … what do you think about him saying ‘Kick them in the shins,’ essentially?” “Well, that was Eric Holder,” Clinton said. “Yeah, I know they all look alike.” “No, they don’t,” Swisher responded.

Now Clinton is being called “insensitive” by her party’s political correctness posse. It was a joke, and also a rebuke of Swisher. The former was absolutely fine (and funny); the latter was a mean-spirited “gotcha!” suggesting unfairly that Swisher thinks of all blacks as fungible, a bigoted attitude, when she just made a mistake. (I get Cory Booker confused with Kirk Douglas sometimes.) Then Swisher turned the finger-pointing back on Hillary, implying that Clinton meant her remark literally rather than sarcastically. Continue reading →

Jake Tapper, Julia Ioffe And The Anatomy Of An Ethics Train Wreck

/ Jack Marshall / 35 Comments

I can’t even keep track of the subordinate ethics train wrecks and sub-train wrecks emanating from the Biggest Ethics Train Wreck of  Them All, the 2016 Post Election Ethics Train Wreck, wherein the furious defeated Democratic Party/progressive/NeverTrump/news media collective set out to undermine the new Presidency, and to overthrow the Presidency if possible. This forms the backdrop, wrote Liz Shield yesterday, for

“every aspect of public discourse on Trump and Trump-related matters..the news on the Pittsburgh synagogue slaughter falls into this category and the strongest narrative on the tragedy is that Trump inspired this/is responsible because he hates Jews/is antisemitic/didn’t condemn the white supremacists or whatever flimsy excuses the resistance needs to blame Trump. In reality, Trump is probably the most pro-Israel president the U.S. has ever had…Those of us who are not in the #resistance are getting lectured on toning down our rhetoric from left-wing hysterics shouting all kinds of slanderous and intemperate accusations…So I am supposed to believe that calling Trump supporters Nazis, white supremacists, sexists, and homophobes is just the right thing to do but Trump’s rhetoric is pouring gasoline on a burning fire of crazy activists? Or perhaps violence in the name of the leftist agenda is just fine? I think that’s it.”

I agree. That’s it indeed. The same is obviously true of the level of rhetoric. Violent, hateful, extreme rhetoric has been coming from the anti-Trump news media for two years, and there are a lot more of them than there are of him, which is one. It takes an immense amount of journalism gall and the assumption of public  gullibility for the news media to argue that the President has created a culture of hate. Says Fox’s Lone Conservative Comic Greg Guttfield, “You want hate? You spend two years calling a guy Hitler, a racist, a traitor, and insane — then you blame him for violence cuz of nicknames?”

No previous President has been attacked using such extreme rhetoric or would have, and no President who was would have survived it without defending himself while calling his critics what they were.

[ A brief digression on “enemy of the people.” President Trump once again described the news media as the enemies of the people. I have, reluctantly, concluded that the label is accurate and justified, and that the President is right in affixing it. This has horrified many here. I agree that calling a crucial democratic institution a public enemy is extreme and dangerous. However,

…More dangerous to a democracy still is a crucial democratic institution perverting its professional and institutional obligations and using its public trust to attack and undermine the democracy it exists to serve;

…That is what the mainstream news media has chosen to do, rejecting objectivity and independence for a hard partisan alliance, depriving the public of a fair and truthful account of events and developing issues;

… The absence of a trustworthy and functioning journalistic establishment will, in the long run and if uncorrected, render our democracy dysfunctional and inoperable, to the detriment of the American public and the world.

…Therefore this deliberate, reckless course threatens the people, and since there is no unbiased Fifth Estate to warn them, it falls to the only remaining democratic institution with the ability to do so to assume the task, the Presidency.

….”Enemy of the people” is a shocking and damning accusation, and its full power is essential if journalists are to realize that they are on a destructive oath.]

This adversary position does place any ethical journalist left standing in peril of perishing in the crossfire, and being run down by the various careering trains despite his or her best efforts. On CNN’s “The Lead With Jake Tapper”this week,  GQ magazine correspondent Julia Ioffe was joined by David Urban, Symone Sanders (who is a documented idiot and bigot) and Mona Charen on a panel to discuss the effects of combative rhetoric, primarily the President’s. CNN’s Don Lemon’s statement that “The president of the United States is racist,” MSNBC’s Joe Scarborough assertion that “Even Albert Einstein may have ended up in a Nazi concentration camp with Donald Trump’s viewpoint on immigration,” and MSNBC’s Donnie Deutsch’s smear that “If you vote for Trump, then you the voter, you – not Donald Trump – are standing at the border like Nazis going ‘you here, you here!,” among others, were not discussed. Ioff, best known perhaps for being fired from Politico for suggesting that the President was having an incestuous relationship was his daughter (or in her words, was “fucking” Ivana), decided to compare the President of the United States to ISIS.
Continue reading →

Morning Ethics Warm-Up, 10/30/18: Scary Ethics Stories!

/ Jack Marshall / 64 Comments

Good Morning!

(And HAPPY BIRTHDAY to my brilliant, talented, always challenging, Trump-hating lawyer little sister, Edith Sophia Marshall!)

1 Quiz results: about 90% of responders found the drag Python sketch about a ladies club re-enactment of Pearl Harbor funny. Whew. As for the one voter who said that it was unfunny because it made light of human tragedy and violence, I’m glad you never attended any of the stage comedies I directed.

2. Ending birthright citizenship for illegal immigrant offspring? President Trump told Axios in an interview that he was preparing to issue an executive order to end birthright citizenship for children of immigrants here illegally. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t…You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”

I have found no authorities who agree with Trump’s lawyers, if indeed they are telling him that. If they are, I don’t blame him for listening to them: if there was ever a President who was legally clueless, it’s this one. Some conservatives are livid about the suggestion (obviously all illegal  immigration-boosting liberals are as well), noting that this proposal is exactly as unconstitutional as Obama’s immigration-related EOs. I tend to agree with them. Ethically, the birthright rule is an incentive to break the law and anachronistic, since it originated when there were no legal restrictions on immigration nor reasons to have any. if the question gets to the Supreme Court, however, it will pose an integrity test for the conservative justices. Their philosophy is that you can’t just re-write or ignore the Constitution when it gets in the way of desirable policy, and this is a perfect example.

It is also very possible—likely?— that the President was using this trial balloon to energize the anti-illegal immigration base as the “caravan” continued its march. Continue reading →

Is There A Rational, Ethical Basis For Giving Illegal Aliens The Right To Vote For Anything?

/ Jack Marshall / 8 Comments

This isn’t a quiz, because I can’t imagine an answer other than, “Of course not.” And yet…

San Francisco has registered 49 undocumented migrants to vote in school board elections. However, a more pressing controversy may be the amount of money spent on the effort. San Francisco expended $310,000 to register just 49 people in the city. That translates to $6,326 a vote, which is also incomprehensible to me. Why would tax-paying citizens, even those as addled as so many who live in the City by the Bay, tolerate this?

The school board tactic is, of course, an obvious “camel’s nose in the tent” method—also known as the slippery slope— of  gradually getting illegal aliens the right to vote. Women’s suffrage efforts a century ago proceeded the same way, with states allowing women to vote and run as candidates in school board elections. Following the leads of Michigan and Minnesota  in 1885 and New York in 1880, Washington state enacted the School Suffrage Act into law in 1890 allowing women to vote for school boards. But women were citizens, in the nation legally, and these measures were necessary to right a cultural, societal, legal and historical wrong. There is no parallel valid argument that it is wrong to deny non-citizens who entered or stay in this country illegally the same privileges the women’s suffrage movement sought—or if there is, I lack the imagination to conceive of it.

____________________

Pointer: Res Ipsa Loquitur

 

Morning Ethics Warm-Up, 10/29/2018: Codes, Cars, Carter And The Caravan

/ Jack Marshall / 51 Comments

Boy, this really IS a good morning!

(The warm-up may rely a bit more on links and quotes than usual…as Bob Cratchit tells Scrooge, “I was making rather merry yesterday.”)

1. Breaking News: Jimmy Carter is right! Former President Jimmy Carter, now 94, has injected himself into the Georgia governor’s race by asking Republican candidate Brian Kemp to resign as secretary of state. Carter’s argument is that there is an appearance of impropriety in his being officially responsible for an election in which he is a candidate, and that his resignation is essential  to preserve public confidence in the outcome of Kemp’s race against Democrat Stacey Abrams. Carter’s made the request in an Oct. 22 letter .

“One of the key requirements for a fair and trusted process is that there be a nonbiased supervision of the electoral process,” Carter wrote, explaining that stepping aside “would be a sign that you recognize the importance of this key democratic principle and want to ensure the confidence of our citizens in the outcome.”

When he’s right, he’s right. Kemp should resign, and his lamer than lame rationalization for not doing so, that it isn’t really he who supervises the election but his staff, would be sufficient reason not to vote for him in the gubernatorial election.

2. Ethics Dunce: Red Sox owner John Henry. You would think the progressive owner of the Boston Globe could restrain himself from blatant virtue-signaling while his team was celebrating its historic season and World Series victory, but no. Henry saluted his team for being “diverse” in his post-game remarks. Nobody sane cares how diverse, whatever that means (Where were the women, John? Where were the Asians? The differently-abled? Muslims? LGBT representatives?), a pro sports team is as long as it wins, and if it doesn’t win, its check-offs on an EEOC form won’t make it any better or its losing more palatable. The 2018 Red Sox were assembled according to the skills and talents of its personnel, with race and ethnicity a non-factor. What mattered is that the team’s manager (he’s Puerto Rican, and I don’t care) proved himself a natural leader who created a selfless, courageous, professional culture on his team, none of whom mentioned race, religion or creed all season, and properly so.

The compulsion to spurt progressive cant at every opportunity is pathological. Continue reading →