The ABA’s Guidance For Judges With Potentially Conflicting Relationships

“Now now, your Honor—that’s the Plaintiff!”

This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.

American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes,  we are enlightened that  “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”
Continue reading

Will The “Woke” American Bar Association Endorse Reject “Innocent Until Proven Guilty” In Sexual Assault Cases?

Sadly, I wouldn’t be surprised.

This is the main reason that I am no longer a member of the ABA, which has become more political and partisan with each passing year. I have often presented ethics courses for ABA sections in the past, and will probably do so in the future.  But the legal profession is one of many that has lost its ethical bearings of late, and the resolution its largest and most prestigious association will consider this week (the ABA’s annual convention begins today) is proof.

Here is the resolution (emphasis mine):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

This is essentially the same standard that the Obama administration forced upon colleges and universities with its infamous “Dear Colleague” letter, resulting in many male students being persecuted, punished, suspended, or expelled without due process, based on an institutionalized bias in favor of female accusers.

The National Association of Criminal Defense Lawyers effectively expressed how sinister the resolution is in a statement issued on July 25, stating in part,

The criminal defense lawyer association notes elsewhere in its letter that this definition would necessarily undermine the Fifth Amendment right to remain silent, since “[t]he resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

The NACDL also points out that the American Law Institute proposed revising its l Model Penal Code to include an affirmative consent standard. The ALI’s membership  rejected that proposal, as it should have, and did so decisively.

The ABA membership is more politically diverse—and principled—that the official posturings of the association itself suggests. I suspect, and hope, that this abomination of a resolution, which would be a disgrace for any legal organization to endorse, will fail. The fact that such a resolution would even make it to the voting stage is one more ominous piece of evidence that the progressive forces seeking to weaken the Bill of Rights are infiltrating all of our professions and institutions.

The ABA Shuts Down Comments On The Articles In The ABA Journal

Now that’s ironic. Like so many other publications and websites that prefer one-way communications of ideas, the official publication of the American Bar Association has announced that it will no longer allow readers to comment on its content. Yes, a profession that is all about rights and advocacy finds advocacy in response to legal opinion and analysis too inconvenient to deal with, and its readers free expression of ideas too burdensome to countenance.

The ABA Journal’s announcement was filled with disingenuous statements and half truths as bullet-pointed reasons for the move:

  • The tone of the comments has become rancorous and uncivil, with substantive commentary being drowned out by partisanship and namecalling that violate the ABA Code of Conduct.”

Wait: how does “partisanship and namecalling” in the comment section of a website “violate the ABA Code of Conduct?”

What an embarrassing claim: the ABA doesn’t understand its own Model Rules! The word “partisanship” doesn’t appear anywhere in the rules, and the argument is hilarious anyway, since the ABA itself, an allegedly non-partisan non-profit, is extremely partisan, as a brief perusal of the various public positions it has taken on matters that really should be none of their business would make obvious. (Guess which party! Come on, guess!) Extreme namecalling under certain  circumstances during the practice of law may occasionally involve a sanctionable ethics breach for lawyers, but not for non-lawyers, retired lawyers and many other readers. The larger problem is this: the ABA Rules are just guidelines. They don’t officially apply to anybody, not even to ABA members. You can’t literally “violate” them, like they are rules or laws.

  • “Our existing commenting system is vulnerable to trolls.”

Then fix your system, but only after defining “trolls.” It is often a lawyer’s job to make trouble, stir the pot, and create productive friction.

  • “Moderating the comments has become an unsustainable burden on our staff.”

I guess the ABA Journal is incapable of running a website, then. Moderating comments, which as far as I can determine involves fewer comments per article than the typical Ethics Alarms post, cannot possibly be that difficult or time-consuming. It’s a staff-member, and not a highly paid one. This sounds like cover for a financial decision.

  • “We have fielded a number of complaints from members about individual comments and the tone of the comments as a whole.””

Oh! Complaints! Well, we all know how much lawyers hate complaints! (Who wrote this?)

  • “With our large social media presence, there are a number of platforms for readers to engage with and discuss our journalism.”

“Now, you  folks can’t eat here, but there are some real nice places down the road a piece…”

I would write a searing comment about this, but the ABA Journal won’t allow it…

Morning Ethics Warm-Up, 3/25/2019: Woke Up Really Sick Of Democratic Party BS This Morning. I’m Sure I’ll Get Over It…

Good Morning!

…as the Mueller report lets the sunshine in…

1. Thank goodness judges don’t bake cakes…the American Bar Association’s Standing Committee on Ethics and Professional Responsibility have issued Formal Opinion 485. It holds that judges who perform marriages, either as an obligation of their office or by choice, may not refuse to do so for same-sex couples. The opinion emphasizes that regardless of their backgrounds, personal views or philosophies, judges must follow the law and act impartially, free from bias or prejudice.

I’d say the opinion is unassailable for a judge who regularly performs marriages  as a mandatory part of his or her job. A judge who is not so required, presumably, can choose not to perform any marriages at all. I bet some judge will challenge the proposition, however, that a  religion-based refusal to perform an optional civil wedding is per se “bias or prejudice.” [Source: Legal Ethics in Motion]

2. Welcome to my world...This week I am doing several ethics programs, one of which (not in legal ethics) I have presented over many years. Last year, I was told that the 2 hour program I had been presenting to the group only needed to be 90 minutes, so the materials I prepared and submitted indeed covered that amount of time, as did my presentation.  This year, I again prepared for 90 minutes. Now, looking at the conference’s two-day program, I see that my seminar is listed in the program as two hours again. That’s a mistake, but it’s too late to correct it: the attendees plan on getting professional credit. So what is my most ethical response? I could…a) stretch the material to two hours, but that’s a 30 minute stretch. b) At my own expense, create an additional 30 minutes of material, copy the materials, distribute them, and never mention that the conference manager, my long-time contact, screwed up. c) Use this crisis as leverage to negotiate a supplement to my fee for the necessary upgrade. d) End after 90 minutes, tell the attendees why, and suggest that they take up the matter of the missing credit with the conference organizers. e) Do the upgrade, present it, and then bill the conference for my time. Continue reading

The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“It is professional misconduct for a lawyer to… engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Hmmmm. Continue reading

And The ACLU Takes A First Class Seat On The Brett Kavanaugh Ethics Train Wreck. Of Course It Has. (The ABA Stayed In Coach)

The American Civil Liberty Union has decided to make an “exception” to its supposedly unshakable policy of being non-partisan and non-political—Oh,  the pop-up fundraising appeal the group is currently showing on its website says to contribute to “stop Trump’s attack on civil liberties.” Then it vanishes, with the permanent text on the site staying abstract and without any overtly partisan slant.  Nice. And dishonest!—and announced its opposition to Kavanaugh’s confirmation.

This should not have surprised anyone, because the ACLU has become a sham organization, claiming to be non-partisan and apolitical while every day making it increasingly obvious that it, like so many organizations that take that pose (including virtually all of the mainstream news media), it is a fully committed ally of the Democratic Party. Nonetheless, there is always hope that at crucial moments in the nation’s history, organizations will find their soul, their guys and their principles before they seep away.

For this we need look no farther than The American Bar Association, another “non-partisan” group that habitually endorses Democratic Party agenda items that should not concern it at all. Its membership is overwhelmingly Democratic, and being that this entire section of the political spectrum is in the process of being ethically corrupted, many members, including members of its governing body, were prepared to turn on Brett Kanavaugh, a judge the organization had rated as very qualified for the Supreme Court, and recommend his rejection as a consequence of unsubstantiated, last minute allegations of sexual misconduct by an accuser dredging up dim memories from more than three decades ago. As a lesser tactic, many were in favor of bolstering the Democratic Party’s disingenuous call for an open ended FBI investigation, not because it is likely to clarify anything, but because it will accomplishe the Party’s stated objective since before Dr. Ford was persuaded, or pushed, to play the part of Anita Hill in this adaptation of “The Clarence Thomas Hearings.” They want to delay until after the November elections.

Thus it was that Robert Carlson, the latest Democratic Party contributor to lead the organization, wrote this letter on ABA letterhead, falsely stating that he was speaking for the ABA itself:

“The American Bar Association urges the United States Senate Judiciary Committee (and, as appropriate, the full Senate) to conduct a confirmation vote on Judge Kavanaugh’s nomination to the Supreme Court of the United States only after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.”

Rather than allow him to hijack its process and integrity, the ABA sent this letter to the Judiciary Committee, clarifying that Carlson was speaking for himself only:

Of course, if it were really a non-partisan, non-ideological organization, the ABA would be in the process of removing Carlson from office. In every organization, falsely using one’s post to imply organizational support of a personal view is a firing offense. Instead, the ABA took the face-saving measure of posting Carlson’s misleading letter (lawyers are prohibited from engaging in misleading conduct) under a link saying, “ABA President Calls For…” THAT’S deceit (lawyers are prohibited from engaging in deceit). Most readers will not notice the material distinction between the President of the ABA’s position and the official ABA position, and that’s just the way the association wants it.

Well, it’s not exactly integrity, but it’s a lot closer than what the ACLU has become. Continue reading

Saturday Morning Ethics Warm-Up: The Bad Guys, Continued.

“Good morning,”

…he said through grimly clenched teeth…

1 My pledge. That’s it. I’ve had it. Every single time I read or hear a reference to how women accusing men of sexual assault or harassment have a “right to be believed,” and anytime I read or hear someone quoting such a reference with approval, I’m going to point out in the strongest possible terms how sinister, unethical, and certifiably stupid this is. If you want to believe Dr. Ford’s dredged up memories of a party—somewhere—where she was jumped and groped by two drunk teens, go ahead. You do have a right to believe anything, including in the Hindu elephant god,  the brilliance of Sean Hannity, and the virtue of Bill Clinton: I don’t care. Be gullible. Asserting that women have some special chromosome-based right to be judged 100% reliable when they make damning and destructive accusations against men violates all standards of logic, ethics, equal protection, fairness , justice and common sense, and threatens tangible harm to innocent citizens and society. It needs to be condemned, and those making it must be condemned until this insidious, ideologically-spawned Big Lie is killed, squashed, burned and vaporized for all time.

For some reason, the tipping point for me was not the nauseating conduct of the Democratic Senators yesterday, which included a dramatic multi-NO! from perhaps the worst of them—well, after Diane Feinstein—Hawaii Senator Mazie Hirono, the one who told Jake Tapper that the very fact of being a conservative is sufficient to disqualify Brett Kananaugh from any presumption of innocence. Stalin reasoned like that. That Hawaii would elect such an un-American, totalitarian-minded fool—she is more ignorant than evil, I think, but I could be wrong—to represent the state is enough to make me resolve to vacation elsewhere when the tropical breezes beckon. What a disgrace she is, and any voters who would allow someone like that to have access to power.  But no, what made me snapo was a small note in today’s paper about how Rep. Leonard Nance’s race to be re-elected to his New Jersey Congressional seat was seen as threatened because he “seemed to cast doubt on Ms Blasey’s allegations” in remarks to a group of college Republicans.

What the hell? Her allegations are over three decades old, she never spoke of them until a SCOTUS nominee she opposed was about to be confirmed, she has no corroboration or evidence whatsoever, and the man she accused uncategorically denies her story under oath. There is nothing but doubt in this controversy. If you don’t see doubt, then you are a bigot, a hopelessly close-minded ideologue, or incapable of rational thought. Continue reading