Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed. Continue reading

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Morning Ethics Warm-Up, 4/17/2018: Blacklisting, Boycotts, And A Fox News Ethics Breach

Good Morning, all.

1 The blacklisting of R. Lee Ermey. Ermey, the ex-Marine turned actor who gained fame playing a Marine drill sergeant in “Full Metal Jacket,” died this week. I had thought he might already be dead, since I hadn’t seen him show up in movies or TV shows for quite a while. No, it appears that he was blackballed by Hollywood after he criticized President Obama in 2010, while he was being hired with some regularity. Speaking at a Marine Corps Reserve’s Toys for Tots rally, he said it was difficult to raise money for the charity because “the economy sucks” and went on to blame the Obama Administration, saying,

“We should all rise up, and we should stop this administration from what they’re doing because they’re destroying this country. They’re driving us into bankruptcy so that they can impose socialism on us, and that’s exactly what they’re doing, and I’m sick and damn tired of it and I know you are too.”

Ermey’s agent and the sudden reduction in his offers persuaded the tough Marine to beg for forgiveness with an abject apology for daring to critique Obama so harshly. Never mind:  His contract as a GEICO character was terminated, and the company removed Ermey’s commercial from their official YouTube channel. He later told interviewers that he had been blacklisted by Hollywood, and that he never had major film offer after he criticized Obama.

Observations:

a) I wonder when fair, decent, ethical Americans who believe in freedom of thought and expression will become sufficiently alarmed about progressives and Democrats using blacklists and boycotts  to enforce ideological conformity. This increasingly totalitarian end of the political spectrum needs to be informed that its ethics alarms are seriously malfunctioning.

b) Actors identified with products and companies cannot complain when they lose those jobs after making divisive political comments. If Ermey wanted to do commercials for anyone other than the NRA, his comments about Obama were just plain stupid.

c) As an actor in films, however, Ermey played villains and parodies of military characters.  His political views in those contexts should have been irrelevant, and certainly wouldn’t harm receipts for movies he was in. If he really was blacklisted, it was an act of punishment for refusing to accept the Hollywood community’s lockstep worship of a weak and divisive President.

d) In contrast, recall this public rant from actor Robert DeNiro in January regarding the current President of the United States:

“This fucking idiot is the President. It’s The Emperor’s New Clothes – the guy is a fucking fool. The publication of the Pentagon Papers was a proud moment for American journalism. The Times and the Post challenged the government over critical First Amendment issues. And the press prevailed. Our government today, with the propping-up of our baby-in-chief – the jerkoff-in-chief I call him – has put the press under siege, trying to discredit it through outrageous attacks and lies.’

I don’t think Bobby has lost any roles over this. To be fair, if there is a place where The King’s Pass, aka “The Star Syndrome,” rules supreme, it’s Hollywood. A major star like DeNiro obviously has more leeway than a narrow-range character actor like Ermey, and Ermey had to know that. Still, the double standard is striking. Continue reading

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“The Good Faith Of The Justice Department”: Sure.

“Yes, but they are fighting in good faith…”

In his scathing indictment of the ACLU (discussed here) for giving the Justice Department a partisan pass despite the dubious legality of its raid on Trump personal lawyer Michael Cohen, Alan Dershowitz wrote,

“David Cole, who identifies himself as the ACLU Legal Director, said the organization relies on the good faith of the Justice Department, the FBI, and the judge who issued the warrant to assure all Americans that this raid on a lawyer’s office, is “a sign that the rule of law is alive.”

Here are the recent performances of key figures among that group that is getting the ACLU’s trust:

  •  Book-peddling, Trump-stalking James Comey says in his forthcoming book that he found evidence that “would undoubtedly have been used by political opponents to cast serious doubt on the attorney general’s independence in connection with the Clinton investigation,” and also faulted Attorney General Lynch’s decision to refer to the Clinton email investigation as a “matter.”

Loretta Lynch responded to the accusation and criticism with her own statement that concluded,

“…I have known James Comey almost 30 years. Throughout his time as Director we spoke regularly about some of the most sensitive issues in law enforcement and national security. If he had any concerns regarding the email investigation, classified or not, he had ample opportunities to raise them with me both privately and in meetings. He never did.”

  • Fired acting FBI Director Andrew McCabe is out of a job because the independent Justice Department Inspector General found that he had lied on multiple occasions, his report concluding in one of the instances, regarding leaks to the news media about the Clinton Foundation…

“While the only direct evidence regarding this McCabe-Comey conversation were the recollections of the two participants, there is considerable circumstantial evidence and we concluded that the overwhelming weight of that evidence supported Comey’s version of the conversation.”

In response, McCabe directed his counsel to write Congress that Continue reading

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Morning Ethics Warm-Up, 4/16/2018: The Integrity Edition

Good Morning!

1. James Comey, Cognitive Dissonance Dunce. The anti-Trump obsessed won’t be able to see it, but rogue ex-FBI director James Comey is doing an immense favor for President Trump and Republicans by single-handedly framing his campaign against the man who, it is increasingly obvious, correctly fired him (as Hillary Clinton would have done even faster) as that of a classic vengeful disgruntled employee and nothing more, or better. Even Time op-ed writer Charles Blow, whose every column since the election has been some paraphrasing of “I hate Donald Trump,” was forced to observe that Comey is an especially dislikable foe (as is Blow himself). The sheer number of loathsome Trump-bashers has a natural Cognitive Dissonance Scale effect that the President’s critics can’t seem to fathom.

Normal, fair-minded people whose natural instinct is to run from the likes of Nancy Pelosi, Ted Lieu, Hillary Clinton, David Hogg, Joy Reid, Bill Maher, James Comey, Robert DeNiro, Alec Baldwin, Stormy Daniels and the rest will find themselves, almost unconsciously, siding with the President rather than this basket of deplorables, because, you see, he is the President, and who wants to be identified with that crew?

In his ABC interview, which successfully marked Comey as Just Another Trump-Deranged Resistance Warrior, he actually said that Trump was “morally unfit” to be President. First of all, it is the electorate, not James Comey, that decides who is morally fit to be President.  Comey’s assessment is no more or less valid than that of anyone else. Second, the statement is ridiculous on its face. If Comey had an interviewer with any knowledge of Presidential character and the history of the office, plus the wit and integrity to expose  an ignorant opinion when one is broadcast coast to coast, he would have been asked..,

Was Thomas Jefferson morally fit to be President? Has Donald Trump kept his wife’s sister as a concubine and slave? Was Andrew Jackson morally fit to be President? Has Donald Trump killed anyone in an illegal duel? Was Grover Cleveland morally fit to be President? Did Donald Trump ever have a woman committed to an institution to silence her about their sexual relationship? Was Woodrow Wilson morally fit to be President? Has Donald Trump endorsed the Klu Klux Klan? Was Franklin Roosevelt morally fit to be President? Has President Trump ordered U.S. citizens into prison camps? Was Richard Nixon morally fit to be President? LBJ? Bill Clinton?

The Presidency is self-defined by its past occupants, and “moral fitness” is not a characteristic that comes to mind when considering what qualities are identified with successful, popular or effective Presidents.

2. Whither the ACLU? Alan Dershowitz has authored a searing attack on the ACLU’s lack of integrity demonstrated by its failing to condemn the Justice Department’s raid on lawyer Michael Cohen’s home and office. He writes in part, Continue reading

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Ethics Observations On The Philly Starbucks Ethics Train Wreck

The now viral Starbucks incident that took place in Philadelphia last week is a genuine ethics train wreck.

Two days after two men were arrested while waiting for their friend at a local Starbucks, the company has issued an apology.

Police were called to a Starbucks after two men, who were African Americans, refused to leave the coffee store after they were told that they needed to buy something in order to stay there.  The men were waiting to meet companion to have a meeting. The store management then summoned the police.

 

The men now have an attorney, Lauren Wimmer, who says that her clients were waiting in the Starbucks  for less than 15 minutes. “These guys were doing what people do every day, they were having a meeting and they were undoubtedly singled out because of their race, ” she says.

The company tweeted the apology yesterday:

Ethics Observations: Continue reading

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A Musical Ethics Quiz: “The Wanderer”

Here is Dion’s signature hit, 1961’s “The Wanderer”…

The song is ranked #243 on the Rolling Stone magazine’s list of The 500 Greatest Songs of All Time.The lyrics (the song was written by Ernie Maresca) , for those of you who are lyrically challenged, are as follows… Continue reading

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Morning Ethics Warm-Up, 4/15/2018: Remember The Titanic And The Bay Of Pigs Edition.

Good Morning.

This, the annual March-April Ethics Alarms traffic dip, is when writing the blog becomes a job, not a joy. I really have to learn to stop caring about click, follower and share stats. It’s pure ego—well, that and the fact that my wife keeps telling me that I should be spending the time on billable matters, or getting books out to publishers.

1. Ethics Observations on the Syria bombing:

  • I teach in my seminars that often decisions made early in ethical dilemmas cause future ethical decisions to become impossible, because only less-unethical ones remain. U.S. and international   policies regarding Syria  are as good an example of this phenomenon as there is. The United Nations, if it wasn’t worthless, would  have intervened to stop the humanitarian catastrophe early in the Syrian civil war. This isn’t hindsight: plenty of experts were saying so at the time. When it became clear, years ago, that this was a bloodbath tidal wave that was destabilizing the whole region (as well as killing untold numbers of civilians and children), U.S. led pressure should have been brought to bear on Assad. Now there are literally no good choices, nor ethical ones.

The United Nations is worthless, as well as toothless, gutless and principle free. If there was any justification for such an organization, it should be to prevent carnage like we have seen in Syria.

  • The U.S., British and French response to Assad’s use of banned chemical weapons was unavoidable, especially after President Obama had been thoroughly embarrassed and discredited by ignoring his own “red line” statement, and after President Trump had made his own veiled threats that amounted to “red line” pledges of his own.

Democrats were going to mock Trump if he did not have a military response to the latest chemical weapons war crime, and they are now criticizing Trump for following through. In doing so, they only make their own fecklessness, hypocrisy and expediency more obvious, if that were possible.

  • Was Assad emboldened by the President’s comments about how he was preparing to pull the military out of Syria? Who knows? Announcing troop movements in a combat zone before they occur is irresponsible and incompetent.

Obama did it repeatedly. Criticism of Trump’s equivalent conduct is valid.

  • Trolling the news media, the President used the phrase “Mission Accomplished!” after the attacks. Good. There is nothing wrong with the phrase, and the mission was accomplished. The mockery of President Bush for a banner he did not have anything to do with was a dastardly media hit job. Ann Althouse’s theory:

Trump is completely aware of how Bush was punched around for using that phrase in a celebration of a specific mission that in fact was accomplished, and he would like the naysayers to come after him the way they came after Bush, and when they do, he’ll show us all how to handle that kind of anti-military negativity.

  • Conservatives are angry about the bombing, even the ones who mocked Obama for being a weenie when Assad called his “red line” bluff. Alex Jones was actually weeping about the raid on his show . These people really are old-style Fortress America isolationists, and want the United States to abandon its traditional mission of being the world’s champion of the abused and helpless while modelling the ideals of democracy.

The non-interventionists are wrong. The ethical optics of the United States and Great Britain and France punishing a brutal dictator who flouts international law are perfect.

  • From the other side of the aisle, some Democrats are whining about the attack being unconstitutional, so some unscrupulous left-biased journalists are spreading the word. Now, the War Powers Act may be unconstitutional, but as long as it’s in force—and Democrats share responsibility for its continued existence—this is just more double-standard hypocrisy aimed at President Trump. The War Powers Act allows the President to take some military actions based on exigencies, as long as they do not extend into a protracted engagement.

This is why “Mission Accomplished” is an especially appropriate message. Continue reading

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