abuse of process

Satire Ethics: Carrying A Joke Too Far

/ Jack Marshall / 7 Comments

Unethical!

The Church of the Flying Spaghetti Monster’s Australian wing applied to be formally recognized as anon-profit charitable entity, but was rejected on the grounds that the purported religion is nothing more than a “hoax.” Ya think? This is the deliberately ridiculous parody religion devised to mock all organized religions and those who believe in them. Pastafarians, as “believers” call themselves, have extended a gag web post ridiculing the logic of every other religion to the point of diminishing returns. Its “heaven” has a Stripper Factory and a Beer Volcano; its argument for the existence of the deity with noodely appendages involves the world distribution of pirates. Very funny. Now stop wasting everyone’s time. Ethics Alarms discussed two abuses of process by Pastafarians here and here, but as with the career of Jimmy Kimmel and the persistence of tofu, I assumed that this joke would have run its course by now. Sadly, no.

Adelaide, Australia’s Tanya Watkins is a self-described “captain” of the church (like on a pirate ship, see) , has made repeated attempts to have the “church” be granted incorporated association status. After her latest attempt was scoffed at by the Corporate Affairs Commission, Watkins sought a review by the South Australian Civil and Administrative Tribunal (SACAT), claiming the movement was formed for a “religious, educational, charitable or benevolent purpose”, thereby meeting the criteria of South Australia’s Associations Incorporation Act.

Hilarious! She should be fined.

Continue reading →

From The “Bias Makes You Stupid” Files! Ethics Dunce: Legal Ethicist Steven Gillers

/ Jack Marshall / 2 Comments

A depressing theme throughout the Trump years has been the corruption of various professions as members once justifiably regarded as trustworthy abandoned their ethical obligations to become “resistance” allies. The professions thus tainted include judges, scientists, doctors and health professionals, lawyers, psychiatrists, historians, teachers and professors, university administrators, and of course the worst offenders, politicians and journalists. Maybe I’ve missed a few. One more profession that has to be included on the list, I’m ashamed to say, is legal ethicists.

In a post in 2017, I discussed the disgraceful filing of a frivolous and politically motivated bar complaint against then-Trump aide Kellyanne Conway by a group of law professors, some of whom are ethics specialists, and a few of whom I knew and respected. I wrote in part,

Continue reading →

#MeToo Ethics: Prosecuting To Stigmatize The Accused

/ Jack Marshall / 16 Comments

It’s not just the impeachment..apparently prosecutors are beginning to adopt the Democratic Party’s theory that it is appropriate to force a trial when there is no chance at conviction just to stigmatize the accused. This is a clear breach of prosecutor ethics, but ethics schmethics, the ends justify the means, right?

The area in which this despicable strategy is surfacing is—and this should be no surprise—the realm of #Me Too. In Maine,  Natasha Irving , who is the top prosecutor for Knox, Lincoln, Sagadahoc and Waldo counties,  wants to reform how the legal system prosecutes sexual assault cases, believing all women so those who come forward know they’ll be “supported.” This means, according to  Irving, that prosecutors shouldn’t decline to prosecute a sexual assault case just because they “think it’s too hard to prove.”

“Individually, I think that response is very damaging to a survivor,” she says. “If they weren’t believed initially, they don’t have faith that they’re going to be believed if they come forward again. Or that they somehow will be put on trial for what happened instead of the perpetrator. There’s a lot of shame and blame that the victims often carry.”

Yes, that’s a problem. A greater problem is prosecutors bring cases to trial when the don’t have enough evidence to prove the defendant guilty. Then they are just counting on an incompetent jury, which isn’t that much of a longshot. The attitude Irving is endorsing is how black men end up in prison for murders they didn’t commit. Continue reading →

Saturday Ethics Warm-Up, 1/11/2020: Epstein And Facebook And Barr, Oh My!

/ Jack Marshall / 5 Comments

It’s Thaturday!

Time, once again, to salute the courage of Karen Carpenter’s much less talented brother Richard, who nonetheless had the courage to offer, as his only notable solo offering for the Carpenters, a song that highlighted his speech impediment. Why did he do this? We’ll never know.

And yes, I have “The Wizard of Oz” on the brain. It was so much better when that wonderful movie was only on TV once  a year: then it was special. Now, especially over the holidays (and what it has to do with Christmas, I don’t know) I had to repeatedly change channels to avoid it. Well, after Judy sang “Over the Rainbow, anyway…

1. Is it really so unreasonable and a “right wing conspiracy theory” to wonder about how Jeffrey Epstein, who could have implicated such powerful people as Bill Clinton and Prince Andrew in criminal activities, ended up dead in his cell?

The latest forehead-slapping development: The video  made outside of Jeffrey Epstein’s Manhattan jail cell when during his failed suicide attempt seemed to be missing, and even possibly destroyed. The jailhouse video turned up, however, muting suspicions about whether Epstein’s successful  suicide at the Metropolitan Correctional Center wasn’t something more sinister.  Prosecutors confirmed that the video had been saved. This week, however,  prosecutors revealed that the jail staff  had preserved video from the wrong jail cell, and the Epstein footage no longer existed.

Meanwhile, two guards who were on duty when  Epstein killed himself are being charged with falsifying records and conspiracy. The guards surfed the internet and dozed instead of checking on the prisoner every half-hour, as they were required to do.

Conspiracy or not, this is epic incompetence, and rather convenient incompetence at that. Hanlon’s Razor, however, applies. I guess.

My only other observation is that government efficiency and job performance is obviously so reliable that I don’t know why Bernie Sanders isn’t running away with the Democratic nomination race. Of course we should put government employees in charge of our lives. It’s a no-brainer. Continue reading →

From The Ethics Alarms Frivolous And Vexatious Litigation Files: The Ethics Alarms Libel Case

/ Jack Marshall / 5 Comments

Once again, the appellate brief for the appeal in Massachusetts courts involving the defamation lawsuit against me and ethics alarms has been rejected by the courts as non-compliant. This is actually somewhat annoying, as I had almost finished the brief brief in response (in market contrast to the 70-plus page monstrosity that was served on me. It took several hours to read the thing, several days to recuperate from the barn fervor, that is, bran flavor…no, brain fever! That’s it!

having to decipher the damn thing inflicted on me, and several more hours to almost finish my professional, clear document designed to give the poor clerk and judges that would have to read the appellate brief a break. That stalled, because while I am entitled to have the Appendix to the appellant’s brief to refer to, it was too big a file for the court to send to me, so they were making a special file.

So now I’m confused about 1) whether the deadline for my response is reset, 2) whether I’m going to have to start my response all over again, and most of all, 3), how many times a pro se litigant with no clue what he’s doing whose only motivation is revenge and to cause as much expense and inconvenience as possible because I banned him from Ethics Alarms after I figured out that he was, well, the kind of person who would behave like this?

It is a great virtue of our nation and its legal system that it allows amateurs—I was going to write well-meaning and sincere amateurs, but that obviously doesn’t apply here—to stumble around in the courts. After all, lawyers are expensive, even more expensive than psychiatrists. Nevertheless, there has to be a limit, don’t you think? People like my adversary cost the system, and taxpayers, millions of dollars as they play around being lawyer because they are bored, ” a few cherries short of a sundae,” to quote the comment that started this fiasco, without gainful employment, or all three.

Or does my home state assume that eventually pro se litigants will be so embarrassed by the constant rejection that they will give up? Boy, I hope not, because this guy is impossible to embarrass .

Well, I guess I have to call the Clerk of the Court again. We’re getting to be great pals.

Sunday Ethics Leftovers, 10/21/18: Gibberish! Lottery Schemes! Comment Spam! Fake Protests!

/ Jack Marshall / 28 Comments

Good night!

1. Comment moderation ethics. In many online news sites, including those of major newspapers, the comments contain  this spam:

I have received $18429 last month by working online from home. I am a full time college student and just doing this easy home based job in my spare time not more than 3 to 4 hrs a day. This online job is very easy to do and its earnings are awsome than any other office type full time job. Join this home job right now and start making more cash online by just follow instructions on this blog…..

I’m looking at a Boston Herald online article about the World Series, and out of 14 comments, 8 are some version of the text above. First of all, of course, the people who post it are unethical creeps, polluting a discussion forum to pick up some cash. The site operators are just as bad. If you can’t moderate a comments section and keep it readable and on-topic, then don’t have one. Lazy, irresponsible and with no respect for readers—and they wonder why the public doesn’t trust the news media.

2. Here’s a rule of thumb: If a group or individual publicly announces a formal ethics complaint being made against a lawyer or a judge, it an abuse of process and the complaint system. Such ethics complaints should be made privately, since they are investigated and only become public if reason is found to levy sanctions. The announcement of a complaint in a press release or other public forum means that the complainant is trying to impugn an individual without proof, fair gearing or due process.

Judicial Watch has filed a complaint against Christine Blasey Ford’s lawyers,  and released the letter to the bar to the public. There may be some grounds for discipline, though it’s borderline. More unethical, in my view, is Judicial Watch using the ethics complaint process as a political weapon.

3. Signature significance, but of what? Comedian Amy Schumer announced that she won’t appear in any Super Bowl commercials to show her support of Pioneer Pointless NFL Kneeler Colin Kaepernick. What is that? Can you boycott something you haven’t been asked to do? Why is she boycotting the Super Bowl to support a protest against (sort of) racial injustice and police brutality? If people were desperate to have Amy in an ad, what would they have to do? Pass laws letting people resisting arrest to threaten police officers without consequences? Authorize reparations to be paid to anyone with an Elizabeth Warren-like percentage of slave blood? Now, Amy protesting the fact that NFL is making billions by giving young athletes brain disease, that would make some sense.

I think making a pointless and silly announcement like this is signature significance for someone who  will do anything to get publicity and signal their virtue to the social justice warrior faithful. Anyone else would realize how idiotic it is. Continue reading →

Ethics Dunce And Awful Human Being: Thomas Frieden’s #MeToo Victim…And Also, “KABOOM!”

/ Jack Marshall / 15 Comments

Like “Advice Goddess” blogger  Amy Alkon, when I heard that Dr. Thomas Frieden, Obama’s former head of the CDC, had been arrested for sexual assault, I just assumed that he was one more prominent serial predator who has used his power to abuse women in the workplace, and a pretty serious one, if he ended up in cuffs. After all, nobody has arrested Matt Lauer or Charlie Rose.

Then I read the whole story, and my head exploded. But not because of what Frieden had allegedly done.

A 55-year-old woman, so far unidentified in the media (I want that woman’s name)  came forward to the police in July and said that Dr. Frieden squeezed her buttocks without her permission nine months earlier, on October 20, 2017.  She told investigators the incident occurred  as she was leaving a gathering at Dr. Frieden’s residence in Brooklyn Heights. She said Dr. Frieden groped her while their spouses weren’t looking, and he later apologized, citing personal problems.. Dr. Frieden says the woman is a long-time friend and acquaintance of more than thirty years.

Got that?  Almost a year earlier, at a party, a male friend squeezed her butt. He apologized. She waited all this time, and then humiliated him professionally and publicly by having him arrested.

How can this conduct possibly be excused, and I mean hers. His conduct was wrong—I have never groped a woman’s ass or any other part of her body without clear consent in my life, indeed I have heard complaints that I don’t grope enough— and it was technically civil battery, but far, far from criminal. Having the man arrested is nothing less than a hateful, cruel, vindictive abuse of him, his family and the justice system.

We are told that this women—I want her name!—is a New York artist who has been a vocal #MeToo activist since the Harvey Weinstein Ethics Train Wreck started rolling and squishing, and  has been creating artwork related to the movement. She also wrote an article in an online publication describing that single grope, from a friend, at a party, as the moment she was transformed from activist to victim. Ah! Then treating an old friend this way is completely justified!

No, it’s not. She’s not just an ethics dunce, she’s an asshole.  Alkon–who gets the Ethics Alarms Pointer for this one— calls the grope, which is not sexual harassment, not occurring in the workplace or between superior and inferior, and not creating a hostile work environment, Continue reading →

Ethics Quiz: Prosecuting Juliet In “Romeo And Juliet 2017”

/ Jack Marshall / 21 Comments

Last month, on March 14, 11-year old Tysen Benz  read text messages saying that his 13-year-old girl friend had committed suicide. In apparent grief, the 11-year-old boy from Michigan’s Upper Peninsula hanged himself.  In reality, the girl had sent the fake news as a joke. Or as a cruel trick. Or because she was 13.

In the Shakespeare play, to fake her death Juliet took a sleeping potion that made her seem dead. (They didn’t have text messaging then.)

Now, if this was really “Romeo and Juliet,” Juliet would have killed herself too after learning that her boyfriend was dead. Instead,  she is facing criminal charges. Marquette County Prosecuting Attorney Matt Wiese says that she is responsible for Tysen’s death, so he is charging her with malicious use of telecommunication service, punishable by up to six months in juvenile detention. He is also charging “Juliet” with using a computer to commit a crime, which carries a sentence of up to a year.

Your Ethics Alarms Ethics Quiz of the Day is…

Is this a fair, just and ethical prosecution?

Continue reading →

The Unethical, Depressing, Bar Complaint Against Kellyanne Conway

/ Jack Marshall / 64 Comments

kellyanneThis post is one I do not want to write, and the fact that I have to write it is profoundly depressing. It requires me to criticize, indeed blow the whistle on,  professional colleagues in the fields of law and ethics, some of whom I know and admired very much, as well as fellow members of the District of Columbia Bar. Some of these colleagues are also members, like I am, in a distinguished association dedicated to the field of legal ethics. A superb book on the topic by one of the professors involved  sits in a prominent place in my office bookshelf.  I can see it right now.

Yesterday evening, I learned that a group of fifteen law professors and lawyers have filed a professional misconduct complaint against White House Counselor Kellyanne Conway, claiming that she violated the Rules of Professional Conduct for attorneys by giving false statements to the media. The fifteen signed the complaint, which was filed with the D.C. Bar’s Office of Disciplinary Counsel. When I read the names, signed on a statement printed upon the official stationery of Abbe Smith, a distinguished full time professor at my alma mater, (and where I worked in the administration for four years), Georgetown University Law Center, my heart sank. While I did not need to read the whole complaint to know it was contrived and intellectually dishonest nonsense, I did, and it fulfilled my worst fears. The anti-President Trump hysteria that has caused so many previously fair and rational citizens on the Left to behave atrociously and to betray their previously held values has officially infected lawyers in the legal ethics field. They are now riding the rails on the 2016 Post Election Ethics Train Wreck.

To be absolutely clear and unambiguous: the complaint is a political attack, and a cheap shot at the President of the United States through his staff. There is no merit to any of its contentions.

The professors claim that they were “compelled” to file the complaint because D.C. Rule of Professional Conduct 8.3 (a) requires that

“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”

They are either addled by partisan political animus or lying, because there is no way, no way, these fifteen professors could know that, or even validly conclude it, based on what they have written in the complaint. To call their accusations against Conway a stretch is to be too kind. They are forced, exaggerated, trivial and manufactured. From what I have read in past commentary and opinions of several of them regarding other matters of lawyer misconduct, I have serious doubts about whether they believe them. I know that’s a serious charge, but I see no other explanation, other than temporary insanity.

To begin with, Kellyanne Conway is not working in a legal position in Trump’s White House. She is Counselor to the President, not White House Counsel. The President and Conway may choose, for his protection, to treat her non-legal policy advisor position as a legal representation, but the fact remains that she is not providing legal advice and services, only policy-related ones. Now, lawyers can violate D.C. Rule of Professional Conduct 8.4, Misconduct, while not engaged in the practice of law, but unless the conduct involved is criminal or displays “moral turpitude” sufficient to call into question the lawyer’s fitness to practice the likelihood of the conduct being regarded as sanctionable by the Bar is vanishingly slim.

From everything I can determines, Conway, though she is a member of the New Jersey Bar and an inactive (she needs to pay back dues and take my mandatory D.C. Bar ethics course before she can practice) member of the District Bar, has not practiced law in more than 20 years. She has been a pollster, an activist, a flack and TV personality as well as candidate  Trump’s campaign manager, but none of her professional profiles refer to her as a lawyer. The complaint alleges that Conway “engage(d) in conduct involving dishonesty, fraud, deceit, or misrepresentation” in breach of D.C. Rule of Professional Conduct 8.4 (c), and did so while not engaged in the practice of law.  In order to bring down the wrath of the Bar, such conduct must be extremely serious, criminal or bordering on it. Rule 8.3 “limits the reporting obligation to those offenses that a self–regulating profession must vigorously endeavor to prevent.” What kind of non-law-related “offenses” must “a self–regulating profession…vigorously endeavor to prevent”?  It is well established that questionable statements that an individual with a law license utters in the course of political activity and advocacy is not such conduct. Continue reading →

Ethics Observations On FBI Director Comey’s Statement Regarding The Clinton Investigation

/ Jack Marshall / 132 Comments

James Comey

The transcript of FBI Director James Comey’s full remarks on the Clinton e-mail probe follow. I will highlight important sections in bold, and in some cases, bold and red. My  observations will follow.

Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.

After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three things: what we did; what we found; and what we are recommending to the Department of Justice.

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.

So, first, what we have done:

The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.

I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together — to gain as full an understanding as possible of the ways in which personal e-mail was used for government work — has been a painstaking undertaking, requiring thousands of hours of effort.

For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused — or “slack”— space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.

FBI investigators have also read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014. Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

Continue reading →