Tag Archives: American Bar Association

There Is Gender And Racial Bias In The Legal Profession, But This Study Doesn’t Prove It…Because Of Bias

Incompetent, agenda-driven research leads to warped debates, hyped conclusion and bad policy. It also undermines credibility of those who cite some legitimate problems. The recent report, which proposes strategies for employers to eliminate the alleged barriers to women and minorities in the legal profession, is such research. It was conducted by the Center for  WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association.

At least the New York Times headline, for once, was accurate., at least the online version: “Lawyers Say They Face Persistent Racial and Gender Bias at Work.” Yup, that’s what the survey showed. What it didn’t show is that there really is such discrimination, how much there is, or how it manifests itself. Here’s part of the executive summary:

Prove-It-Again. Women of color, white women, and men of color reported that they have to go “above and beyond” to get the same recognition and respect as their colleagues.

  • Women of color reported PIA bias at a higher level than any other group, 35 percentage points higher than white men.
  • White women and men of color also reported high levels of PIA bias, 25 percentage points higher than white men.
  • Women of color reported that they are held to higher standards than their colleagues at a level 32 percentage points higher than white men.

This demonstrates, at least within the reliability of the survey,  that minorities and women perceive that they are being discriminated against more than white males. That’s a useless result. We have seen and read, for example, how various African American activists and celebrities like Charles M. Blow and Ta’ nahisi Coates teach their sons that police are racists, and that they must fear them. As a result, they interpret all interactions with police through this prism. One doesn’t have to be a research ethicist to conclude that this warps their perception. Similarly, all women currently in the workplace have been bombarded by the media, activists, peers and the culture for most or all of their working lives about how hostile the workplace is to women.

At least four of the seven most common and insidious biases are at work:

1. Herd mentality: The tendency to adopt the opinions and follow the behaviors of the majority to feel safer and to avoid conflict. Also known as mob psychology, peer pressure, and group-think.

Members of groups seeking political power through maximization of perceived victim status are influenced by the needs, mission and perceptions of that group.

2. Confirmation Bias: the tendency to look for or interpret information in a way that confirms pre-formed beliefs.

If you already believe that you are going to be the target of discrimination, you will interpret events to confirm that belief.

3. Self-Serving Bias: when an individual attributes positive outcomes to internal factors and negative outcomes to external factors.

This is the most tragic phenomenon of both a history of bigotry towards certain groups and the laudable efforts to raise awareness of it to eliminate the conduct. It pushes women and minorities to blame external factors for their failures, and in so doing impedes their chances of success. I have previously written about my personal epiphany in this area, when an African American singer who I rejected for a challenging tenor role accused me outright of not casting him because of his color. He could not hit the notes the role required, and yet he was convinced that bias, and not his own deficiencies as a singer, was what cost him the part.

4. Bias Blindness: the tendency not to acknowledge one’s own thought biases.

I don’t doubt that there is considerable gender and racial bias in law firms. Indeed, I am certain of it. This kind of study, however, is not the way to sound the alarm, and smacks of either incompetence or dishonesty.

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Filed under "bias makes you stupid", Business & Commercial, Gender and Sex, Law & Law Enforcement, Race, Research and Scholarship, Workplace

Ignore The Spin: It Was Unethical For Michael Cohen To Secretly Record His Client, Donald Trump

This morning the Washington Post tries to spin the clear ethics violation by Michael Cohen when he surreptitiously recorded his client, Donald Trump, when his client didn’t know or have any reason to suspect that such a recording was taking place. It was unethical. I have never spoken to a lawyer or ethics authority who didn’t believe such a recording would be unethical, at least until such an ethics breach was made against this particular betrayed client. Now, since the legal profession is one of many that have abandoned integrity and professional standards in the fever of anti-Trump madness, I’m sure several, maybe many, will change their tune. You know: they don’t want their friends to be angry with them.

Yes, Cohen’s taping was legal, because it occurred in New York, where only one party to a conversation has to know it is being taped. That is irrelevant to the ethics breach at issue. For a lawyer to tape a client secretly is always unethical. That’s my position, and I know of no persuasive argument against it. The Post article says that the matter isn’t clear cut. Oh yes it is.

Until 2001, there was little dispute that a lawyer was violating Rule 8.4, which pronounces it misconduct for a lawyer to engage in misrepresentation, dishonesty, fraud or deceit. Taping anyone secretly is misrepresentation. Does anyone want to dispute that? Try. If I am talking to you privately, and you do not tell me that I am being recorded, then you are representing to me that I am NOT being recorded, unless our previous conversations were recorded and I knew that. A few states just ducked the issue, and held that a lawyer could do what any other citizen could do in a state that made one party recordings legal. The American Bar Association, however, right through the 20th Century, held that it was per se unethical for a lawyer to surreptitiously tape anyone.

The absolutist position was an Ethics Incompleteness Principle accident just waiting to happen. In other words, there had to be exceptions, and since almost all states allowed District Attorneys to surreptitiously record suspected criminals without the threat of ethics sanctions, exceptions were already recognized. Thus, in 2001, the ABA revised its position with equivocal, muddled, Formal Opinion 01-422, “Electronic Recordings by Lawyers Without the Knowledge of All Participants,” which the ABA summarized this way:

A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. Formal Opinion 337 (1974) accordingly is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee is divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so.

It does not “necessarily” violate the ethics rules because, the opinion explains (as various state opinions have as well), sometimes recording a third party serves the interests of justice, as when, for example, a client is trying to show domestic abuse, or when there is an allegation of illegal loan or housing discrimination. 01-422 wanders into Clintonesque rhetoric, however, when it states, Continue reading

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Filed under Government & Politics, Law & Law Enforcement, Professions, Science & Technology

Ethics Dunce: The American Bar Association

Res Ipsa Loquitur: The American Bar Association  Section on Civil Rights and Social Justice will bestow the prestigious Thurgood Marshall Award on former Obama U.S. Attorney General Eric Holder during the ABA Annual Meeting in Chicago on August 4. It has been obvious for a long time, but if anyone needed any further evidence that the ABA is now a full-fledged partisan left-wing organization masquerading as an objective professional association, this is it. Holder wasn’t just a bad AG, he was a political one in what is supposed to be a non-political office. He was also racialist, and obviously so, regularly coordinating with Al Sharpton and his followers, and constructing a Civil Rights division that adopted the position that only whites could engage in civil rights violations.

Holder should have disqualified himself from any professional awards, not to mention his high office in the Obama Administration, when he gave the green light to President  Clinton’s  infamous pardon of Democratic donor Marc Rich (aka. Clinton’s quid pro quo for his ex-wife’s  fat donation to his Presidential library). In fact, it was a defining moment, and having defined himself as a partisan lackey, Holder was exactly what President Obama wanted at Justice. Holder intervened in the Trayvon Martin case to signal it as a race-related crime in the absence of any evidence, and did likewise in the Michael Brown shooting, lighting the fuse of racial distrust and community anger at police. Then he called the United States a “nation of cowards” regarding race relations. The real coward was Holder, who used his race—he was the first black Attorney General—to shield himself from the accountability and criticism his mishandling of his office deserved.

Holder was held in contempt of Congress—and allowed the captive news media to call the action “racist”—after he withheld documents and key witnesses from oversight committees looking at several scandals in which his Justice Department was complicit. Notable among them was the “Fast and Furious” fiasco in which the government allowed Mexican drug gangs to get high-powered weapons, one of which ended up killing an American. Holder actively misled Congress in testimony under oath.ore than once.  He sought significant reductions in privacy and due process protections for citizens—civil rights? Hello, ABA?— and personally announced and supported Obama’s “kill list” policy, in which the President asserted the right to kill any U.S. citizen on his sole authority without a charge or due process.  Holder let his  department apply the controversial Espionage Act of 1917 to bring twice the number of such prosecutions under the Act that had occurred under all previous Attorneys General.  He led the Obama Administration in a campaign against government whistle-blowers. Holder championed warrantless surveillance (Civil rights? Hello?). Most damning of all given the title of his upcoming award, Holder was personally involved in targeting journalists for surveillance and  was the leader of an Obama administration attack on the news media that was condemned by many public interest and media groups. Holder’s Justice Department seized phone records for reporters and editors  at three Associated Press offices as well as its office in the House of Representatives. Under oath, Holder later claimed to know nothing about any of it.

Writes Prof. Jonathan Turley, who has written many searing articles documenting Holder’s disgraceful tenure at Justice,

“Holder’s “contributions” cost civil liberties dearly in this country. If the ABA is to give him this award, it could at least spare civil libertarians and journalists the reference to civil liberties.”

_______________

Note: You can read the various Ethics Alarms documentation of Holder unethical words and conduct here.

This one is probably my favorite, from 2014.

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Filed under Character, Ethics Dunces, Government & Politics, Law & Law Enforcement, Race, Rights

Gee, Trump-Haters, Is Fox News Trustworthy And Reliable NOW?

 Two Fox News stalwarts, chief Fox News anchor Shep Smith and “Judge” Anthony Napolitano (he’s not a judge, not any more) took issue on the air with criticism of “Spygate.” Let’s take the two individually…

Shep said, in part,

“President Trump has also claimed that Feds spied on his campaign with an informant,” Smith concluded. “The President calls it ‘spygate.’ Fox News can confirm it is not. Fox News knows of no evidence to support the president’s claim; Lawmakers from both parties say using an informant to investigate suspected ties to Russia is not spying, it’s part of the normal investigative process.”

Ugh.

  • Smith is not the least bit sympathetic to Trump, though Fox-bashers like to ignore this when they accuse Fox of being blind shills for the President. He tries to be objective, but slants left like most of his colleagues at other networks. So this is not, as it is being represented to be, a stunning rejection by a media ally of President Trump.
  • This popular semantical defense of the FBI using a mole in the Trump campaign remains desperate and silly. The FBI recruited an individual to seek out contacts within the Trump campaign and pass along information learned thereby to the agency. An undercover informant is a spy—it’s just that spy is a pejorative term.
  • “Lawmakers from both parties say using an informant to investigate suspected ties to Russia is not spying, it’s part of the normal investigative process” is a horrible, unethical sentence. First, if some lawmakers from both parties say Trump is a rutabaga, it doesn’t make him a rutabaga—this is naked appeal to authority. Bad Shep.

Second, who is so certain “ties to Russia” is all the “informant” was investigating? Why are they so certain? Because the FBI says so? Continue reading

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Filed under "bias makes you stupid", Ethics Train Wrecks, Government & Politics, Journalism & Media, Law & Law Enforcement, Professions

Sunday Morning Ethics Warm-Up, 5/6/2018: Moore, Marx, Polls, And #MeToo And Legal Ethics Don’t Mix

Good Morning!

1. Remember, this creep is a popular and influential “progressive.” Here was what Michael Moore tweeted yesterday on Karl Marx’s birthday:

“Happy 200th Birthday Karl Marx! You believed that everyone should have a seat at the table & that the greed of the rich would eventually bring us all down. You believed that everyone deserves a slice of the pie. You knew that the super wealthy were out to grab whatever they could.”

Nobody who spins Marx this way after his abstract theories were used to enslave and kill millions while leaving nations devastated and impoverished is worthy of respect, or indeed anything but horror. Such a statement requires ignorance, delusion, dishonesty or idiocy, probably all three. Moore is the Left’s Richard Spencer.

Birthdays deserving of more public remembrance than Karl’s: Arnold Stange, Harold Staasen, Melody Patterson, and Phil Linz, among others, as well as every world citizen who lived his or her life without playing a role in making the planet more miserable. Continue reading

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Filed under "bias makes you stupid", Character, Ethics Dunces, Government & Politics, History, Law & Law Enforcement, Leadership, Religion and Philosophy, Rights, This Helps Explain Why Trump Is President

When Doing The Ethical Thing Is Ugly But Necessary: AG Sessions’ Retracts One Of Those Obama “Dear Colleague Letters”

By the way, “when doing the ethical thing is ugly but necessary” both refers to Sessions’ action and my writing this post…

 In March 2016 , President Obama’s Justice Department sent another one of the administrations patented (well, not really) “Dear Colleague letters” like the one that was used to bully colleges and universities into punishing male students for alleged sexual assault in the absence of sufficient evidence. This one was sent to state and local courts, urging them <cough>to review their procedures regarding fines and other punishments issued to the indigent  to ensure that they were consistent with “due process, equal protection and sound public policy.” The Justice Department’s 2016 release linked the letter to its description of a $2.5 million grant program to help agencies develop strategies that reduce unnecessary confinement of those who can’t pay fines and fees.” The letter said in part,

“Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.”

The letter also outlined “basic constitutional principles” regarding fee and fine enforcement. They included: Continue reading

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Filed under Ethics Alarms Award Nominee, Government & Politics, Law & Law Enforcement

Gender Bias And Legal Careers

Studies show that although women have been entering the law in equal numbers to men for more than a decade, they make up just 23 percent of partners and 19 percent of equity partners. Why do so many women  leave the legal profession at what should be the height of their careers? Last month, more than 160 lawyers gathered at Harvard Law School in November for the ABA National Summit on Achieving Long-Term Careers for Women in Law to identify answers and plot a course to change the trends.

Sharon Rowen, a lawyer from Atlanta,  said her research showed three reasons women leave the practice of law: work/life balance, unconscious bias, and the pay gap. I wish I could have attended the discussion. I hope someone pointed out that seeking work/life balance is the major reason for the pay gap, and that it is not unreasonable to view that as a trade-off that is both fair and reasonable.  Rowan’s list also leaves off conscious bias that pervades society and clients regarding female lawyers, as well as law firm partners.

Iris Bohnet, professor of public policy at Harvard Kennedy School, said some women suffer from “success fatigue,” and leave “because of a work culture that forces them to minimize important parts of their lives.” They ask themselves, “Can I bring my whole self to work?” and “Is this a place where I can thrive?” What she is saying is that a lot of women don’t find the law enjoyable, and that its stresses, patterns and requirements are more accommodating to men than women. In other words, law isn’t fun for a lot of women, while men, because of the nature of males, are more tolerant of it than women tend to be. I wonder if any panelist had the guts to come right out and say that? I doubt it. I bet most of them would deny it, because it’s politically incorrect to admit any gender differences, unless they involve female superiority.
Continue reading

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Filed under Family, Gender and Sex, Law & Law Enforcement, Professions, U.S. Society, Workplace