Let Us Not Allow Pity And Compassion To Obscure The Ethics Lesson Of The Otto Wambier Tragedy

Young Otto Warmbier  is back from North Korea, where he had been a prisoner since 2015. The a 22-year-old University of Virginia student was finally returned from the Communist dictatorship in a coma, suffering from “extensive loss of brain tissue in all regions of his brain.” Doctors believe he had sustained his catastrophic brain injury sometime before April 2016.

His heartbroken parents are condemning North Korea and praising the Trump administration, which finally obtained his release. Someone, however, needs to make the crucial point that Otto’s fate was directly due to his own recklessness and bad judgment in engaging in conduct that frequently results in disaster, as well as international tensions and needless cost to U.S. taxpayers.

Otto signed up for a five-day tour of North Korea with  Young Pioneer Tours,  a Chinese company that advertises “budget travel to destinations your mother would rather you stayed away from.” There is a good reason your mother—and your father, and the U.S. State Department—would rather you stayed away from North Korea. The place is a hell-hole run by a power-mad lunatic, and it is not safe. Nobody put a gun to Otto Warmbier’s head and kidnapped him: he decided on his own to defy his government’s warnings, recent history and the sense god gave puppies to deliberately place himself in harm’s way, knowing that many, many similarly misguided citizens have become prisoners, propaganda tools,  pawns or worse because they willfully placed themselves in similar peril as the people who decide to climb into tiger or lion enclosures at zoos.

Warmbier left on his “tour” in December , 2015. He would have had a chance to see “Bridge of Spies” by then: I wonder if he did. You will recall that the history-based plot involved am American student named Fred Pryor, who is one now a renowned comparative economists. Then, however, he was a graduate student in West Berlin who decided it would be a dandy idea to pass through the half-completed Berlin Wall in August, 1961 to attend a lecture and give a copy of his dissertation  to an East Berlin economics professor.  We know he’s a smart guy, but one would think that the fact that the East German government was in the process of sealing in its citizens as prisoners might have alerted him that this was not the time to go visiting.

Sure enough, Pryor was arrested, thrown in jail, and became a bargaining chip in the U-2/Gary Powers/Rudolph Abel negotiations. Had Otto Warmbier seen the film (which Pryor says misrepresents his part of the story), I would think he would  have been a bit more resistant to a sales pitch that said, “This is a great time to visit beautiful North Korea!” Indeed, being 22, presumably literate and of sound mind,  he should have had the knowledge and sense of self-preservation to resist that sales pitch even  if he had never seen any movie in his whole life. Continue reading

Sometimes It All Comes Together…But First, A Song!

As those who have read here for a while know, among my fondest passions, virtually life-long, are baseball,  theater and ethics. Today, I have the pleasure of seeing them all come together in a single event. How often does that happen?

At noon, I will be giving my most recent musical Continuing Legal Education ethics seminar, “Ethics Cabaret,” at Nationals Park in D.C. prior to the Mets-Nats game. “Ethics Cabaret,” like its six predecessors, presents legal ethics hypotheticals  as parodies of pop, rock, Broadway or country-western standards, presented by a professional performer. In this case, the performer is American Century Theater veteran Esther Covington, who accompanies herself on the keyboard. I write the songs that make the young lawyers cry, but she sings them, beautifully and often hilariously.

Speaking of Barry Manilow, my favorite segment of the seminar is the parody of one of his signature songs, which you can hear above—it’s an ear-worm, so be careful. The legal ethics version is about “Bridge of Spies” and the many quandaries raised in the film, which I examined in this post earlier this year. The parody is called “Who is the Client?,” lyrics-only copyrighted by ProEthics. Here they are….you can sing them along with Barry’s version! Continue reading

Gene Autry Misinformation Update: Believe It Or Not, It Happened Again!

"Wild Bill" Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway...

“Wild Bill” Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway…

Yesterday I wrote about a lawyer in a legal ethics seminar interrupting me with a revelation about Gene Autry that was completely false.

Today I taught another legal ethics seminar, this time for a government agency. I was discussing was the various government ethics dilemmas in “Bridge of Spies,” the story of how lawyer Jim Donovan helped secure the release of downed U.S. flyer Francis Gary Powers in a famous incident during the Cold War. Many of the issues covered in my presentation were explored in this Ethics Alarms post.

As the film portrays it, Donovan, an insurance lawyer, does such a tenacious job defending an accused Soviet spy from U.S. government prosecution that the CIA recruits him to broker the trade of his now-former client, convicted and in prison, for Powers. In discussing the classic government lawyer dilemma of “who is the client?,”  I noted that the CIA agent who recruited Donovan told him that he would have no client. “Why did the CIA trust Donovan?” I asked socraticly. “Why did Donovan, an insurance lawyer, think he was qualified to engage in this kind of representation, it it was a representation?”

For the second time in nine days, an attendee piped up with an amazing piece of information.

“I suspect some of the answer to both questions is that James Donovan was the son of “Wild Bill” Donovan, who is considered the father of the Central Intelligence Agency,” he said. Continue reading

The Real Legal Ethics Conundrums In “Bridge of Spies”

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Quite a few readers have written that they would enjoy some of the problems I present in my seminars on legal ethics. I try to please, so here are some difficult legal ethics issues that arose in the screenplay of last year’s Oscar-nominated film “Bridge of Spies.”

I wrote about the film earlier this year, here.

The film tells the true story of Jim Donovan, an insurance lawyer who is recruited, in 1957, by his New York bar association to take on the representation of the accused Soviet spy Rudolf Abel, a job that we see Donovan not only do bravely and competently, but one that he takes all the way to the Supreme Court. He loses, and Abel goes to prison.

Legal ethics points:

  • That ends the representation, and Abel is no longer Donovan’s client, but a former client.
  • Lawyers still have duties to former clients: they must keep all of the confidences learned during the representation and after, and not use these against the interests of the ex-client, or reveal them ever, even after the ex-client is dead and buried, except under rare circumstances.
  • A lawyer is also not allowed to become adverse to the interests of a former client in a substantially related matter to the one he (or she) handled for the client.

Because when representing Abel, Donovan had argued against executing the spy on the grounds that he might a useful  bargaining chip if an American was captured by the Russians—an argument he made to save Abel’s life, not to provide unsolicited advice to the government—the capture of U2 pilot Gary Powers after he was shot down in a spy plane makes the lawyer a candidate to make his own scenario come true. An East German official sends Donovan a letter claiming to be able to broker an exchange of Powers for Abel. When the CIA learns about the letter, they ask Donovan to go to East German and negotiate the deal. Continue reading

Ethics Quote Of The Month: “Bridge of Spies”

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The shooting script for the Academy Award nominated film “Bridge of Spies” is now online. Written by Matt Charman and the Coen brothers, it, like the film that Steven Spielberg made out of it, provides an unusually accurate and nuanced portrayal of ethical lawyering. The movie is worth seeing, better more than once, and I expect that I will use many issues raised in it for class discussion as I teach legal ethics to lawyers this year.

There is one howlingly wrong scene, in which the lawyer, Jim Donovan (played by Tom Hanks) has a private discussion with the judge who will be sentencing his client, a convicted Russian spy. Donovan argues against a death sentence. If this happened, and I doubt it, it would have been an egregious ethics breach: this is called ex parte contact, and is strictly forbidden.

The film redeems this misstep many times over, especially in a scene that neatly explores both the duty of confidentiality and the duty of loyalty, as well as the crucial role of rules in society, and why “the ends justify the means” as well as those who advocate that philosophy must be rejected. “Ethics Bob” Stone told me that he now uses the scene in his business ethics classes.

The scene begins with Donovan meeting in a restaurant with a man who has been following him…. Continue reading