ABA Model Rules of Professional Conduct

About Fox News’ Fake Judge

/ Jack Marshall / 35 Comments

In a post on the Legal Ethics Forum, not as active as it once was but still one of the best legal ethics sites around, Legal ethicist and law professor Steve Lubet clarifies something I have always wondered about, and like a lazy slug, never investigated.

Fox News contributor Andrew Napolitano, most recently in the news for claiming that the British intelligence service GCHQ  colluded with President Obama to conduct surveillance on the Trump staff during the 2016 campaign, is always called “Judge Napolitano” during his appearances.  Lubet points out that he’s not a judge any more. Napolitano once served on the New Jersey Superior Court, but resigned in 1995 and has not held judicial office for more than two decades. It is apparently at Napolotano’s insistence that he is always addressed  as “Judge”  in Fox. His website, JudgeNap.com, refers to him as “Judge Napolitano” throughout, as does his bio on the Fox News site.

Lubet notes that The American Bar Association has held that  the use of  judicial titles by former judges practicing law is misleading and unethicalin connection with law practice.  ABA Formal Opinion 95-391 says that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” Of course, Napolitano isn’t practicing law when he bloviates on Fox News, so it isn’t a Rules violation, but the Judge label is still misleading

The Ohio Rules of Professional Conduct, Lubet found,  goes further by decreeing that it is only ethical for a former judge to use the titles  “Judge” or “The Honorable” if they are preceded by the word “retired” or “former,” and the rule does not limit this caveat to ex-judges actively practicing law. Again, Napolitano is not out of compliance, because he is not subject to the Ohio Rules. That doesn’t make what he calls himself strictly accurate, or sufficiently accurate. (I confess, I have had a bias against such things ever since I suffered through a year with an insufferable  high school history teacher who called himself (and insisted that we call him)  “Dr. Arthur” because he had a PhD in history.) Continue reading →

The “Too Handsome To Rape” Defense

/ Jack Marshall / 31 Comments
Sharper, Mathis, Ted Bundy.

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

Continue reading →

The Comfort Women Memorial Lawsuit: A “Disgusting” Legal Argument, Perhaps…Unethical, No

/ Jack Marshall / 33 Comments
The Glendale Comfort Women Memorial

The Glendale Comfort Women Memorial

The large and respected law firm Mayer Brown has taken the ugly case of some Japanese-American clients who want the city of Glendale, California to remove a memorial to World War II “comfort women” from a public park. In doing so, and in the way it is proceeding, the firm has inspired harsh condemnation from two estimable legal commentators, both First Amendment champions: Marc Randazza, and Ken White. Their objections, which caused Randazza to call the firm “the least honorable law firm in the world,”and White to conclude, “This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences,” are heartfelt, but, I think, misguided. Their argument, beside arguing that the lawsuit is frivolous, is best articulated by Randazza: Continue reading →

Encore: “The Ethics of Letting a Lying Defendant Testify”

/ Jack Marshall / 11 Comments
"Objection! The defendant's pants are clearly on fire!"

“Objection! The defendant’s pants are clearly on fire!”

I’m in Ohio today, talking about legal ethics with a large law firm, and the discussion there turned to the difficult problem of the lying criminal client. Here is a post on the topic from the early days of Ethics Alarms, slightly updated, and the disturbing thing is that we are no closer to finding a satisfactory and ethical solution to the problem.

What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading →

Ethics Quote Of The Day: Ken at Popehat

/ Jack Marshall / 3 Comments

“If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody’s reminding us that you have an obligation to know what you’re doing before you accept the client. Somebody should.”

—-Ken, the lead blogger/attorney/libertarian/ wit/ First Amendment champion at Popehat, summarizing the lessons of the Joseph Rakofsky saga. Rakofsky was a green D.C. lawyer ( he is still a lawyer, less green but sadder and wiser) who indeed did take a murder defense as his first trial, made an epic botch of it, and then launched a desperate defamation lawsuit at legal bloggers, like Ken, who had told his cautionary tale to the world with appropriate ire. The law suit was dismissed last week.

What's next for Joseph Radofsky? Maybe he'll run for President....

What’s next for Joseph Radofsky? Maybe he’ll run for President….

Competence is an ethical value, especially in the professions, but also in most pursuits. Taking on the responsibility of accomplishing a task creates a duty, and doing so without being justifiably certain that you will have the skills to do it is reckless and irresponsible.

Ken, an experienced and accomplished attorney whom I have consulted for his professional advice in the past, also knows that inexperience does have to be eradicated with experience, and a strict application of his statement in all cases would lead to a frustrating Catch 22. Every pilot has to take that first solo flight; every head surgeon has his first major operation; and Clarence Darrow had to take on that first murder trial before he could say with complete confidence that he knew exactly what to do. On a more basic level, any lawyer taking on a representation in a type of matter she has never handled before, such as drafting a will, will be, in  a sense, accepting a client before she knows what she is doing, because she hasn’t done it before. That’s okay, however: the ethics rules, as expressed in the American Bar Association’s Rules of Professional Conduct (in Rule 1.1) say its okay, as long as, by the time the task is underway, the lawyer is sufficiently competent: Continue reading →

The Difference Between Legal Ethics and Ethics: A Son Takes Sides

/ Jack Marshall / 14 Comments

“You’re doing WHAT???????”

Nevada lawyer Mark Liapis decided to represent a man sued for divorce by his longtime spouse. The spouse petitioned the court to have him barred from the case, and the court agreed: Mark was, after all, representing his father against his own mother.

Ick. Continue reading →

More “The Good Wife” Ethics

/ Jack Marshall / 7 Comments

The CBS legal drama “The Good Wife” has a good cast, well-scripted stories, and apparently a preference for misleading the American public on attorney ethics. Here’s the setting for its most recent set of gaffes: attorney Alicia Florrick (Julianna Margulies) and her supervising partner are battling an evil insurance company (you didn’t really think Hollywood would stay on the health care reform sidelines, did you? With a big vote coming up? ) that refuses to pay for in utero fetal surgery necessary to save an unborn baby from certain death. The insurance company’s attorney has a strong case, but offers a deal: it will pay for the surgery if Florrick’s firm will drop a class action lawsuit against the company. The partner, Will Gardner, refuses the offer: many other desperate members of the class need to make the insurance company pay for treatment, and besides, the law firm, which is in dire financial straits, needs the income that the class action might generate.

There are three things ethically wrong here: Continue reading →

Ethics Alarms: the News, the Web, and Other Things

/ Jack Marshall / 2 Comments

Why People Think the Media is Biased, Reason 61,567: Chris Matthews recently mocked new Mass. GOP Senator Scott Brown for signing a book deal to write his autobiography. “Didn’t people used to write their memoirs after their careers?” Matthews sneered. Gee, Chris, I don’t know: Weren’t you extravagant in your praise for Sen. Barack Obama’s autobiography, published before he was half-way through his first term?

How Writers Are Different From Lawyers: A free-lance writer lays out her ethical principles here, which includes not lending her talents to causes she doesn’t believe in. She is on firm ground, because citizens don’t have a Constitutional right to have their ideas professionally communicated to the world. Citizens do and must have the right to use the laws of their country for their own benefit, however, and to have the best representation possible when they are accused of crimes. That is why we can make judgments about a writer’s principles based on her choice of clients, but to do the same with lawyers is an attack on the principles of democracy. Continue reading →

The Not-So-Baffling Mystery of the Missing Ethics Rule

/ Jack Marshall / Leave a comment

ABA  Model Rule 7.6: Political Contributions To Obtain Legal Engagements Or Appointments By Judges
A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.

That’s pretty clear, is it not? The American Bar Association, in its Model Rules of Professional Conduct, now followed (in various, eccentric forms, to be sure) by 49 states, the District of Columbia and Puerto Rico, emphatically declares that “pay-to-play” arrangements are unethical for lawyers even in states where the sleazy practice might be legal. “Pay-to play” is, after all, classic corruption, older than Mayor Curley, Richard Daley, Boss Tweed and Mister Potter. Lawyers contribute big bucks to the campaign funds of state and local powerbrokers, including Attorneys General and judges, and get big state contracts in return. It is indefensible ethically, although you can find plenty of people who will defend it, their tongues crossed tightly behind their backs all the while. Continue reading →

Ethics Quote of the Week

/ Jack Marshall / 3 Comments

“Edwards, who wore expensive Italian suits, had panicked prior to a debate in front of an American union group. The label inside his jacket read “Made in Italy.” Sensing he might be about to step in a political cow pie if one of the unionists inquired, he asked Young about the label inside his own suit jacket. Young’s read “Made in the USA.” Edwards ordered Young to immediately take both jackets to a tailor and switch the labels. Later Edwards played back a videotape of the debate and complained to Young about how his suit appeared to be wrinkled where the labels had undergone the old switcheroo.”

————– Former John Edwards aide Andrew Young in his soon-to-be-released  book, The Politician

There are those who argue that small deceptions like this are meaningless. They are wrong. Continue reading →