Surprisingly, Many California Lawyers Want To Have The Option Of Having Sex With Their Clients

It's all your fault, Arnie...

It’s all your fault, Arnie…

For most of the last century, sensible and rational lawyers accepted that exploiting the attorney-client relationship to have sex with their clients was unprofessional and unethical, without needing a formal rule to tell them the obvious. Then along came Steven Bochco’s popular TV drama “L.A. Law,” the over-heated saga of a high-rolling Los Angeles law firm and its libidinous lawyers. Most libidinous of all was domestic law specialist Arnie Becker, played by the then-blonde and dashing Corbin Bernsen. Arnie habitually slept with his clients when they were wealthy, sculptured, beautiful trophy wives trying to shed their husbands. This was not the image that the family law bar wanted to see broadcast to America, so lobbying efforts were undertaken in many state bars to formally declare Arnie’s nocturnal client conferences unethical, as they undoubtedly were.

California, being partially at fault for the uptick in the public’s false belief that lawyers use their practice as a virtual dating bar, was among the first states to pass an “Arnie Becker Rule,” though it had company, like Oregon, which amusingly anticipated Bill Clinton by including a strangely specific definition of what sexual intercourse was, and New York, which narrowly limited its prohibition to Arnie Becker and domestic relations lawyers like him. Other jurisdictions demurred, as well as the American Bar Association, which is supposed to seek consistency in the legal ethics rules. California’s new rule was one of the more wishy-washy ones, with Rule 3-120 stating that Continue reading

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

"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

No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes

"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

Unethical Website Of The Month: Bye-Bye Snopes…You’re Dead To Me Now [UPDATED 10/12/2016]

bye bye

Ethics Alarms has been tracking the increasing political bias exhibited by Snopes, once the definitive “Urban Legends” web source to identify false stories on the internet, e-mail hoaxes and other pollution of public information. The website has made the disastrous decision to wade into political topics and to hire some new social justice warriors and wanna-be Democratic Party operatives to cover them, resulting in the site becoming a bad imitation of PolitiFact.

The disturbing trend really established itself this month, but it was in evidence earlier. For example, Snopes rushed to defend Hillary Clinton when the story of her defense of a child rapist was used to smear her. (Ethics Alarms explained, correctly, unlike Snopes, what was unethical about the attacks on Clinton—all defendants deserve a zealous defense, no matter what the charge, and a lawyer isn’t endorsing or supporting a client’s crimes by doing her professional duty.) The Snopes defense, in contrast, was dishonest and misleading. Quoth Snopes, via its primary left-biased reporter, Kim LaCapria.

Claim: Hillary Clinton successfully defended an accused child rapist and later laughed about the case.

MOSTLY FALSE

WHAT’S TRUE: In 1975, young lawyer Hillary Rodham was appointed to represent a defendant charged with raping a 12-year-old girl. Clinton reluctantly took on the case, which ended with a plea bargain for the defendant.

WHAT’S FALSE: Hillary Clinton did not volunteer to be the defendant’s lawyer, she did not laugh about the the case’s outcome, she did not assert that the complainant “made up the rape story,” she did not claim she knew the defendant to be guilty, and she did not “free” the defendant.

Notice that the TRUE and FALSE sections don’t match the claim. That’s because Snopes is playing the logical fallacy game of moving the goalposts and using straw men. The claim, as stated by Snopes, is 100% true. Continue reading

The First Thing We Do, Let’s Slime All The Lawyers…

the-blob-88

In election years I tell all my legal ethics seminar classes to start teaching their non-lawyer neighbors and relatives ABA Model Rule 1.2 b, which reads,

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

This, combined with the principle of zealous representation of one’s client, as expressed, for example, in D.C. Rule of Professional Conduct Rule 1.3…

(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or
(2) Prejudice or damage a client during the course of the professional relationship….

…means that lawyers represent clients, and are bound to seek those clients’ objectives when those objectives are legal whether the lawyer likes or agrees with those objectives or not.

It means that it is ignorant, wrong and dangerous to the rule of law as well as the right of citizens to be the beneficiaries of laws in a democracy and not the servants of them, for unscrupulous political opponents to attack lawyers for the positions, objectives and needs of the clients they represented. It means that it is disgusting for maleducated journalists to misinform the already disturbingly confused public by using a matter that a lawyer-turned-candidate’s client needed legal advocacy for as an excuse to impugn the candidate’s character.

Lawyers do not have to agree with or like their clients’ positions, objectives or character, is that clear? Everybody? Lawyers are not to be held accountable for their client’s motives, conduct or legal objectives. Bill Cosby’s lawyers do not approve of rapists. Johnnie Cochran did not support the hobby of ex-wife knifing.

Yet this happens every election cycle, without fail: cheap shots directed at candidates who are lawyers based on one or more of their unsavory clients.  There are two lawyers left in the current primary competition, and guess what?

You guessed it.

Hillary’s ancient defense of a rapist was used to slime her all the way back in 2014. The unfair attack raised its misshapen and empty head last week on CNN, when a Trump supporter brought it up. What we know about Clinton is that she defended a child rapist she was appointed to represent pro bono in 1975, and did an excellent job. She used all the tactics that she was allowed to use. She attacked the credibility of the twelve-year-old victim, and threw sufficient doubt on the the chain of evidence that Clinton got an advantageous  plea bargain for her client, who served just ten months in prison. Sure, he was guilty, and Hillary knew it.  It was her job to make the prosecution prove its case with sufficient evidence, and they failed. The victim, we are told, has had a hard life because of the experience. That is not in any way Clinton’s fault or responsibility.

Now it’s on to Ted Cruz. Here is Slate’s click-bait, misleading, deceitful headline to further the “Ted Cruz is a some kind of sexually repressed weirdo” trope the left-biased media is peddling: Continue reading

“The Good Wife” Jumps The Ethics Shark

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

Lowe’s, The Rights Of Racist Customers, And Why Lawyers and Doctors Aren’t Like Deliverymen

Now, if Lowe's drivers had law degree's, this would be a different story....

Now, if Lowe’s drivers had law degree’s, this would be a different story….

A fascinating story unearthed by master ethics sleuth Fred:

In Danville, Va., a customer specifically asked that a Lowe’s delivery be administered by delivery personnel who was not an African American. Marcus Bradley, the black driver assigned to the delivery, was called back to the store, and replaced. When the woman who made the request was interviewed, she said, “I got a right to have whatever I want and that’s it…No, I don’t feel bad about nothing.”

For hiss part, Bradley said that he was surprised that the store didn’t stand up for him, but that he would stay in his job. “I mean I gotta work. I’m going to keep going to work like I’ve always done. But I would think Lowe’s would take it into consideration to think about what they’re doing next time,” he said.

Lowe’s corporate office, when informed about the incident, released a statement that said in part… last week, and they said they’d look into it. Wednesday, we received this statement: Continue reading

Advocacy Ethics And Larry Tribe’s “Betrayal”

Bought, believed, or both?

Bought, believed, or both?

One of my favorite topics here, the public’s (and news media’s) misunderstanding of legal ethics and the function of lawyers, recently broke into the news with a crash as progressives saw Barack Obama’s constitutional law professor at Harvard and liberal icon Lawrence Tribe go before Congress and testified against the President’s climate change initiative, the Clean Power Plan, saying that it was the equivalent of “burning the Constitution.” This has been called every name in the book by progressives, from betrayal to greed to dishonesty.

“Laurence Tribe must not have been sworn in over a Bible today before testifying before Congress, because if he had been, that Bible would have burst into flames after his phony testimony about EPA’s legal authority to set standards for unlimited carbon pollution from power plants,” said David DiMartino, adviser to the Climate Action Campaign.“But I guess we shouldn’t be surprised— a wad of coal industry money burning a hole in your pocket can make you do strange things,” he added.

Indeed, Tribe was hired to represent its interests by Peabody Energy, the world’s largest private-sector coal company, and is the company’s counsel in a lawsuit that seeks to invalidate the EPA plan. 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. Continue reading

Three Republican Candidates: Gaffes, Disqualifications, Or Something Else?

shooting-yourself-in-the-footI felt badly about piling up three posts recently on unethical female Democrats running for office, and was inspired by the Washington Post’s Greg Sargent to do some analysis of Republican candidates who, at least according to Sargent, deserve equivalent criticism to what has been leveled at Alison Lundergan Grimes for refusing to say whether she voted for President Obama. [She did it again last night in her debate with Sen. McConnell.]

Sometimes finding Republican candidates who deserve an Ethics Alarms slap is hard, unless they say something bat wacky like, say, Richard Mourdock. If a Democrat is flagged by The Daily Beast or the Post, I can be pretty sure there was something said or done that was objectively troubling, because the mainstream media will bury anything from a Democrat that is vaguely defensible. A Republican, however, might be accused of certified insanity for a statement that offends progressive cant. Fox and many of the right wing websites, meanwhile, will ignore any Republican whose pronouncements don’t rise to “I am the Lizard Queen!” level of derangement, and will find fault with Democratic candidates on dubious grounds. Here are the GOP candidates for today’s ethics audit: Joni Ernst (U.S. Senate in Iowa); Tom Cotton (U.S. Senate in Arkansas); and Greg Abbott  (Texas Governor race): Continue reading

Ethics Dunce: Republican Governors Association…And An Integrity Test For Chris Christie

This ugly beast keeps raising its head out of the muck, and it is the duty of every citizen, Republican or Democrat, who believes in justice and due process under law to beat it back with heavy clubs.

The Republican Governors Association is defending one of its own, South Carolina Gov. Nikki Haley, with a series of ads attacking state Sen. Vincent Sheheen, an attorney who is her Democratic opposition in the gubernatorial race. The message of the ad, as summarized by  a voice-over, is that “Sheheen defended violent criminals who abused women and went to work setting them free.”

False. Continue reading