American Bar Association

Friday Open Forum, With Prompts…

/ Jack Marshall / 20 Comments

I resist the temptation to emulate the less labor- (and thought) intensive blog formats of Instapundit and, much of the time, Althouse, which consist of posting a link and a brief comment, along with a substantial quote, followed by “Read it all.”

However, this is one of those weeks when I doubt my life choices that emphasized creativity and windmill-jousting over financial gain, because boy it would be great if I could devote full time to Ethics Alarms without ending up living in a cardboard box…

So while, as usual, the ethics issues battled out here on the Friday Forum are up to you, here are some links to content that might inspire you:

1. This op ed in the Times made my head explode, and it was so dishonest and partisan that an ethical newspaper would be obligated to reject. But this is the New York Times. Typical quote: “As Mr. Trump has pushed for partisan gerrymanders and a voter-suppression law like the SAVE America Act, we’ve seen strong voter turnout in races across the country.” Right. Trump’s at fault for the “partisan gerrymanders.” And partisan hacks like the author regard suppressing illegal voters as “voter-suppression”…

2. Former Labor Secretary Lori Chavez-DeRemer, who resigned in April, was not just engaging in inappropriate conduct with her staff (and one male member of her security detail in particular), but such flagrant violations of policy, rules and ethics that one has to question her mental stability. I wrote one post referencing her at the time, but the Axis news media soft-pedaled the story, probably because the scumbag in question was a Hispanic female. Three of the women appointed to Trump’s Cabinet had to resign in disgrace. The Inspector General’s report came out yesterday [Gift Link] Yikes. Typical quote from the Times piece:

“During a personal trip to Oregon, the report said, Ms. Chavez-DeRemer asked her driver to take her and the agent to a strip club. She also had the driver go inside with them and asked him to drop money from her purse onto a partially naked performer. When the driver hesitated, the senior agent told him to follow the secretary’s instructions; later, he told the driver not to tell anybody about the incident.”

Read it all.

3. The End is Near for the American Bar Association, writes conservative law professor Josh Blackman. Anyone who watched the disgraceful performance of the ABA’s DEI president being eviscerated by Rep. Gill for her evasive and disingenuous answers while testifying before Congress in July shouldn’t doubt Blackman’s analysis for a second. His article reports that the group is in full ideological capture by the Mad Left, and, as a result, is about to be stripped of its ability to confer accreditation on law schools.

Now do the Association of Professional Responsibility Lawyers….

There. That’s enough to get you going…

The ABA’s President Displays Why Every Non-Lawyer Doesn’t—and Shouldn’t— Trust Lawyers

/ Jack Marshall / 20 Comments

“This is embarrassing,” Rep. Brandon Gill said, as Michelle A. Behnke ( from Madison, Wisconsin—of course she is), the president of the American Bar Association (ABA) repeatedly refused to answer direct questions, was infuriatingly evasive and displayed nauseating hypocrisy and dishonesty as Rep. Brandon Gill questioned her regarding DEI, bias and discrimination. It was embarrassing, for Democrats, progressives, fans of permanent anti-white discrimination, members of the ABA (the largest American bar association, which I refuse to join expressly because of the organization’s lack of integrity ) so flamingly displayed by Behnke, and especially all lawyers. How can the public trust a “profession” that allows such a shifty, pusillanimous, dishonest individual to represent it by leading its members’ largest and most prestigious organization?

I say this as a legal ethicist: It can’t.

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The ABA Issues An Ethics Opinion To Help Lawyers, Not Clients

/ Jack Marshall / 3 Comments

 The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 523 titled “Engagement Agreements Allowing a Lawyer to Withdraw When the Client Fails Substantially to Fulfill an Obligation Regarding the Lawyer’s Services.” 

The opinion’s summary:

“Rule 1.16(b)(5) of the ABA Model Rules of Professional Conduct permits a lawyer to withdraw from a representation, or to seek the tribunal’s permission to do so, when “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” This provision is ordinarily invoked when a client fails to fulfill an obligation regarding payment of legal fees and expenses. The engagement agreement may memorialize additional obligations of the client, both obligations that are otherwise implicit such as the client’s truthful cooperation with the representation, and further obligations insofar as they are not forbidden by the Rules, other law (including court rules), or public policy. A client’s persistent failure to fulfill obligations regarding the lawyer’s services, including obligations unrelated to payment of fees and expenses, may constitute a basis for withdrawal if the procedural requirements of Rule 1.16(b)(5) are met. Further, the lawyer’s engagement agreement may put the client on notice of permissible grounds for withdrawal under Rule 1.16(a) and (b), including the client’s failure to fulfill obligations regarding the lawyer’s services. However, the engagement agreement may not expand on the grounds for withdrawal set forth in Rule 1.16 or purport to alter or amend the grounds for withdrawal or the process for withdrawal required by the Rule.”

The ABA is being coy. Traditionally, because, you know, we lawyers are professionals and are not in it for the money but rather for the good of society, lawyers aren’t automatically allowed to drop deadbeat clients because they have stopped paying. It is not unusual for a judge to refuse to allow an attorney to withdraw for that reason, and there is another Catch 22: the confidentiality rules in most states forbid a lawyer from telling a judge that a client isn’t paying his or her legal bills, or can’t.

One coded message that some jurisdictions wink at is “Your honor, I request to withdraw because Mr. Green is unavailable at this time.” Of course, coded violations of confidentiality are still violations. Now the American Bar Association is saying that “the client’s failure to fulfill obligations regarding the lawyer’s services” makes dropping that client reasonable and ethical. This is supposed to be a profession. But for most lawyers out there, it’s all about the money.

The ABA’s pronouncements aren’t binding on anyone, remember.

The full opinion here. 

Oh Look: The ABA Wants To Circumvent The Second Amendment (Again)…

/ Jack Marshall / 3 Comments

As a lawyer who has scrupulously avoided joining the American Bar Association (except when a discounted membership allowed me to feel more comfortable when the ABA invited me to speak about ethics at a convention), I found the recent resolution calling for the repeal the Protection of Lawful Commerce in Arms Act, (“PLCAA”), 15 U.S.C. §§ 7901–7903, consistent with what I now expect of the nation’s largest legal trade association. Over the last several decades years, the ABA has moved steadily leftward on the ideological spectrum, and signs that bias had made it stupid began turning up as early as 1987, when four members of the association’s special committee evaluating Supreme Court nominees found the extremely well-qualified Robert Bork, nominated by President Ronald Reagan, unqualified purely because of his conservative judicial philosophy. This gave Senate Democrats the ammunition they need to reject Bork, thus beginning the destruction of a crucial “democratic norm” that Presidents should be able to choose SCOTUS justices as long as they were sufficiently qualified and experienced.

You can read Resolution 604 here. Ten states (New York, California, Connecticut, Colorado, Delaware, Hawaii, Illinois, Maryland, New Jersey, and Washington…do you see a pattern?) have enacted “Firearm Industry Responsibility Acts,” and the ABA, being properly woke, is calling for a national version. The resolution purports to be concerned about a “small percentage” of “irresponsible” gun manufacturers who violate consumer protection or engage in deceptive trade practices, and wants the gun industry’s unique immunity from product liability lawsuits to be narrowed and reformed.

Because the latest resolution begins its arguments with the usual scaremongering statistics compiled by anti-Second Amendment activists—“Approximately 46,000 Americans are killed by a gun every year—approximately 125 people every day,” I find the resolution to be disingenuous, a “camel’s nose in the tent” tactic to make gun manufacturers so vulnerable to lawsuits that the business becomes untenable, and guns become so expensive that the right to bear arms is illusory.

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The ABA Is Defending Its Racially Discriminatory Scholarships…Of Course It Is.

/ Jack Marshall / 4 Comments

Res ipsa loquitur, no?

In April, the American Alliance for Equal Rights led by Edward Blum, the scourge of affirmative action and “good discrimination” policies, filed a complaint in an Illinois federal court alleging that the American Bar Association’s 25-year-old Legal Opportunity Scholarship discriminates against white applicants. Since their skin color renders them unable to apply, this contention seems beyond debate. The question is whether, as a trade association, the ABA has a right to discriminate.

The Alliance said it is representing an unnamed white male law school applicant who says that he would apply for the $15,000 Legal Opportunity Scholarship were he not prevented from doing so because he is the “wrong” race. The ABA awards between 20 and 25 such scholarships annually to incoming law students, according to its website, which is excerpted above.

I should have covered this in April: sorry. [Believe me, if I could find a way to work on the blog full-time without ending up living on cat food and in a shack by the docks, I would.] Anyway, this kind of thing is why I do not pay dues to the ABA, and why I am suspicious of any lawyer who does. It is an interesting case. I assumed that Blum would lose if the case proceeded, and that his main objective was to shame the ABA into opening up the race-based scholarships to all. But the ABA has no shame. And I knew that.

The American Bar Association responded to Blum’s suit this week, arguing that a scholarship program designed to boost diversity among law students is protected free speech. The 25-year-old Legal Opportunity Scholarship, the largest lawyer association in the nation asserts, is protected under the First Amendment. In its motion to dismiss the ABA also claimed that plaintiff American Alliance for Equal Rights lacks standing to sue.

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More DEI Whac-A-Mole: This Time, It’s the ABA Getting Whacked

/ Jack Marshall / 14 Comments

A sinister feature of the Diversity/Equity/Inclusion “good discrimination” conspiracy is that the participants know that what they are doing is unconstitutional in spirit, illegal in practice, divisive and unfair by traditional American values, and they go forward with it anyway until they are caught. Then they deny that they were doing what they were doing, change their policies, at least ostensibly, and wait for the next opportunity while other organization pursue their DEI schemes.

The idea is to overwhelm the opposition—that is, those who believe all discrimination on the basis of race, gender and ethnicity is unethical and that jobs, promotions, honors, advancements, privileges and admissions should be based on achievement and not subjective attempts at social engineering or compensatory reparations. Eventually, the strategy goes, “everybody does it” will kick in, and fighting the new social norm will be futile.

The latest institution completely corrupted by political bias to be caught playing DEI games is the august American Bar Association. As revealed by Paul Caron’s Tax Prof Blog, a controversial requirement for law school accreditation, Standard 206, which contained flaming DEI mandates like…

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Ethics Dunce (But We Knew That): The American Bar Association

/ Jack Marshall / 21 Comments

The ABA’s House of Delegates this week approved a resolution urging law schools to give either academic credit or monetary compensation to their students who serve as editors of law reviews or other academic journals. This is right in line with the logic that has college football and basketball plantations paying their student athletes, who already are getting scholarships and often diplomas they couldn’t justify based on their academic skills. Paying or otherwise compensating students who serve as law journal editors is just as reasonable, which is to say that it isn’t reasonable at all. In fact, the proposed practice, which some law schools already embrace, is unethical.

Reuters, in its news article about the ABA’s most recent intrusion into matters they ought to steer clear of, inadvertently explains why this concept is wrong-headed. It notes that these positions are “sought-after credentials that can bolster a law student’s job prospects.” Exactly, which means that students would gladly pay the law schools to get them. Being appointed as a law journal editor is its own reward: why should the recipients be paid for it too? Indeed, if the ABA’s reasoning applies, why only the editors? The other members of the law journals staffs are also providing valuable services to the school, its alumni, and the legal profession. They should be paid as well, or, to put it another way, none of the law journal staff should be paid, including the editors, just as student athletes shouldn’t be paid.

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Communication Ethics: The American Bar Association’s Impossible Formal Ethics Opinion 500

/ Jack Marshall / 1 Comment

difficult-client-yelling-at-lawyer

The duty of communication is both a fiduciary duty and, for lawyers, a professional one. American Bar Association Model Rule 1.4, one rule that every jurisdiction has adopted nearly verbatim, holds that

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The last part is, much of the time, a fictional standard. I have been hammering at this in my recent ethics seminars, much to attendees alarm: clients often, perhaps even most of the time, don’t comprehend what’s going on on many levels.

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Mid-Weekend Ethics Warm-Up, 8/22/2021: It’s No Longer Illegal To Come Back Here After You Are Deported, And Other Surprises…

/ Jack Marshall / 10 Comments

betwixt

[I had to get up extra-early to wrote this, since there’s no point writing a warm-up once the thermometer tops 80.] Amusing historical ethics note: on August 21, 1980, animal rights advocates Ingrid Newkirk and Alex Pacheco launched PETA, People for the Ethical Treatment of Animals. In the intervening 40 years, it has become the preeminent animal rights organization in the world, in part because it will do almost anything for publicity. It is also consistently the most ridiculous animal rights organization in the world, and on Ethics Alarms, in a lively battle with Citizens for Responsibility and Ethics in Washington as the most hypocritical and unethical non-profit with “ethics” in its name. The PETA ethics rap sheet is here. When last discussed on Ethics Alarms, PETA was protesting using animals as metaphorical insults because it perpetuates “speciesism.” Jackasses…

  1. From the suddenly overstuffed “Incompetence” Files…Mike Richards, the executive producer of “Jeopardy!” who made himself one of the show’s new hosts in a breathtaking display of conflict of interest contempt, lasted less than a week in his new job. Controversial comments he made on a podcast from 2013 “resurfaced,” officials at Sony Pictures Television confirmed. That means someone who didn’t want him to have the job did a maniacal search to find something that would force him to resign. This is, essentially, the Hader Gotcha, and a rotten, Golden Rule-breaching thing to do to anyone unless they are running for office and pretending to be someone they are not. At least Richards recognized that his duties as executive producer required that he dump himself once he became an anchor on the show he has a duty to protect.

The allegedly cancel-worthy comments Richards made came when he was trying to imitate Howard Stern—imagine that as a life objective—by hosting a podcast called “The Randumb Show.” Naturally, this involved saying sexist and racially insensitive things like Howard and Don Imus, who not too many years earlier were still considered witty and brave in their political incorrectness. He refered to a woman’s “boobies.” He said that he aspired to be a “white guy host” like Ryan Seacrest. Salon, which is always a barometer of just how nuts the far left has become, pronounced l such sophomoric banter “alarming.” I know I was terrified when I read them.

2. If this doesn’t prove that our news organizations are worthless, nothing will. U.S. District Judge Miranda Du, a federal judge in Nevada, struck down as unconstitutional a longstanding statute that makes it a crime to return to the United States after deportation. Here reasoning is that the law is racist and discriminatory against “Mexican and Latinx individuals.”

“The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” Du wrote in her ruling.“The amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach,” Du wrote.

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The American Bar Association Adopts Yoo’s Rationalization or “It Isn’t What It Is”

/ Jack Marshall / 7 Comments

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To be fair, “It isn’t what it is” is an argument lawyers are trained to make, but this is especially glaring.

The Florida Supreme Court recently voted to prohibit the approval of continuing legal education credits for any CLE program with diversity “quotas.” This was a broadside at the ABA, which in 2017 approved a Diversity & Inclusion CLE Policy that requires all its sponsored or co-sponsored CLE programs with three or more panelists, including the moderator, to have at least one member of a a “diverse group.” Programs with five to eight panelists must have at least two diverse members and programs with nine or more panelists must have at least three diverse members. This will supposedly help accomplish the ABA’s Goal III , which aims to eliminate bias and enhance diversity in the profession.

There is a disconnect here, since the only purpose of continuing legal education is to do as good a job as possible keeping lawyers abreast of the law and developments in their profession. Does the skin color, gender, ethnicity or other characteristics of the CLE instructors and trainers advance that purpose in any way? I don’t see how, and neither did the court, which wrote in part,

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