It Is With Great Reluctance That Ethics Alarms Concludes That As Generally Repugnant And Vulgar The Term “Asshole” Is, Mayor Pete Buttigieg Is One.

If this was just disgraceful pandering, grandstanding, and shameless virtue-signaling, he would only  have proven himself to be a jerk—a big jerk, to be sure,  but still just a jerk. But it is far more.

The new fad contender for the Democratic Presidential nomination is returning thousands of dollars in donations because they came from two lawyers who had the audacity to represent Supreme Court nominee Brett Kavanaugh as he attempted to defend himself against the contrived  ambush accusation of a sex crime, made in a Congressional hearing  on national television, a ploy designed to destroy his reputation. Buttigieg’s campaign said that it will not accept funds from people who helped secure the justice’s seat on the Supreme Court. You know. Dirty money.

Buttigieg’s campaign had received $7,200 from Alexandra Walsh, and $2,800 from Beth Wilkinson, Walsh’s law partner. Both represented Kavanaugh during his Senate confirmation ordeal. As I have vowed to point out every time some ignoramus asserts that lawyesr must be punished for the character, conduct or beliefs of the clients they represent and are responsible or culpable in any way for what those clients have said or done (or NOT done), it is a core and essential principle of our legal system that such an assumption is not only wrong but dangerous. It threatens the right of every citizen to receive competent legal representation and access to our laws and other rights.

Here, once again, is my favorite ethics rule, from the ABA Model Rules of Professional Conduct:

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

Whether the target is Hillary Clinton, Ted Cruz, Elizabeth Warren, Harvey Weinstein’s defense attorneys (also here), Larry Tribe, Gitmo defense lawyers, or Clarence Darrow, Johnny Cochran, Leslie Abramson and other defense lawyers who defend murderers and worse, the false claim that lawyers who take on unpopular, repulsive or guilty clients have done anything less than protected  the Bill of Rights and the rule of law is either rank ignorance or a deliberate effort to reduce the civic literacy of the public.

Buttigieg isn’t a lawyer, but he is very well educated and has a reasonable claim to brilliance.  Thus he knows and understands what lawyers do, but is acting as if he does not, intentionally making the public stupid (or keeping it conveniently as stupid as it already is ) for his own benefit.

Despicable.

But that’s not all. Continue reading

“Immoral And Ineffective”

Hmmm. I have now, in a single day, heard two Congressional Democrats, in the course of discussing the so-called government shut down, describe the Trump border wall as “immoral and ineffective.” Does this mean that the phrase is an official, focus group tested Democratic talking point now, issued to the troops to be relentlessly repeated over and over again to end debates rather than illuminate them? I assume so, and thus it joins “comprehensive immigration reform,” “sensible gun laws,” and others. If I am right, it is a remarkably dishonest catch phrase. It’s also internally hypocritical.

Simply put, if the wall is ineffective, why is it immoral? And if the wall is immoral, why is being ineffective an indictment of it?

Arguing in the alternative like this is a red flag that signals that the advocate just wants to defeat the proposition, and doesn’t care how he or she does it.  The device originated in the legal profession, as a strategy to advance several competing and often mutually exclusive arguments with the goal of showing that regardless of interpretation there is no viable conclusion other than the advocate’s. Most often, the trick is used in criminal law: My client didn’t know the victim, and if he did, he was too far away that night to kill him, and even if he was the last one to see the victim alive, the evidence against him is circumstantial. In criminal law, the approach is justifiable, for the accused must be convicted beyond a reasonable doubt, and any doubt will do. The criminal defense lawyer isn’t seeking justice, or the best result for the community, just the best result for his client, as his (or her) clients defines it. It’s a better device to use in court briefs to other lawyers and judges than to a jury, who are likely to think, “Wait, does this lawyer care what the truth is?” The answer to that question is, of course, “no,” as long as the end result serves the interests of the lawyer’s client. If the client is Jack the Ripper, and the lawyer  arguing in the alternative allows him to escape conviction to kill again, the lawyer did the job required by his or her profession. The consequences of freeing the client literally is not the lawyer’s concern: if it is, then he or she is in the wrong profession. Continue reading

The President Is Right About The Mainstream News Media, And It Can’t Handle The Truth, Part III: The Tweet

trump-tweet-enemies

Part I in this series began with a random choice of a New York Times anti-President hit piece of the day. This is the one of truths that the mainstream media wants to pretend  doesn’t exist: the intentionally, relentlessly negative, innuendo-filled reporting regarding the Trump administration, with the goal of alarming the public, undermining its trust in the government, weakening his Presidency, or bringing it down entirely. Just to be up to date, let’s look at today’s front page…and what do we find? “A Back-Channel Plan for Ukraine and Russia, Courtesy of Trump Associates.”  The article includes a prominent graphic titled “Donald Trump’s Connections in the Ukraine.” But the article itself, and any research into the individuals shown in the graphic, show no association between Donald Trump and the Ukraine whatsoever. We see…

Andrii V. Artemenko: Ukrainian politician with a peace plan for Ukraine and a file alleging that its president is corrupt.

Felix H. Sater: Russian-American businessman with longstanding ties to the Trump Organization.

Michael D. Cohen: Trump’s personal attorney, under scrutiny from F.B.I. over links with Russia.

Paul Manafort: Former Trump campaign manager with pro-Russian political ties in Ukraine now under investigation by the F.B.I.

There is no evidence or even allegation that Artemenko has even spoken to Trump. Sater was involved in helping businessman Trump seek deals in Russia, and that is all the article tells us about him. Cohen is Trump’s lawyer, and a lawyer’s clients are not “linked” to other clients, unless you think Patty Hearst was “linked” to O.J. Simpson through their mutual lawyer, F. Lee Bailey.

Then there is Manafort, who is not  in the Trump Administration, and was fired from the campaign before the election. Back when he was the campaign manager, Politifact did a “check” on him, and found that he had done political consulting work for Ukrainian politicians. Among the international clients Clinton consultant James Carville lists on his website are politicians in Argentina (lots), Columbia, Bolivia,  and yes, the Ukraine, that’s just “some” of the them, meaning that some of the others either don’t want to be known or wouldn’t make Carville look good if they were known. Was Hillary Clinton “associated” with everyone on Carville’s client list? (Also a Carville client: the late Senator Ted Kennedy, serial pussy-grabber and un-prosecuted negligent homicide suspect). Of course not, but that’s the degree of “association” with the Ukraine that the Times article pins on the President, once you get past the front page headline and graphic. The photo over the online version of the article even shows President Trump, who is barely mentioned in the substance of the piece at all, except in such references as “Mr. Trump’s lawyer.”

Might all of these “associations”—this use of guilt by association would be too attenuated even for Joe McCarthy–eventually add up to something sinister, and a scandal that involves the Trump administration? Sure, anything is possible. THAT would be news. THAT would belong on the front page. THIS story, however, is a dog’s breakfast of innuendo, speculation, “hmmmm..” and nothing. It is fake news…not fraudulent in its facts, fraudulent  in its presentation, placement in the paper and intentional suggestion that what is known justifies suspicion of the President. The defenders of the ongoing journalist attacks on the President continue to argue that fact-based smears and rumor-mongering stories published in major news sources are not “fake news,” and after a story like this, I have to wonder about their honesty too. There is only one way this kind of smoky article makes a front page above the fold.

Now on to the Tweet Heard ‘Round The World. As discussed in Part II, the President was performing  a public service when he told the newsmedia to its reporters’ smug  faces that they were biased, hateful, incompetent and dishonest. Somebody had to do it. Their supposed “watchdogs” like CNN’s Brian Stelter won’t do it, because he is too busy bashing the President himself while defending his pals.

It would be much better if someone in academia, or a prominent journalist pointed out how terrible a biased and untrustworthy news media is for the nation, but this is the Left’s attempted coup, after all. Try finding an objective authority in academia or journalism. So the leader of the nation, on national television, has to tell the self-congratulatory journalists that they are failing their duty to the nation, which is to inform the public. They see their duty as bringing down a President their Progressive Masters hate.  In other words, the President is saying, essentially..

The follow-up tweet elaborated by specifying just how much of a betrayal this is, saying,

The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!

Look at this as the second slap. Better yet, look at it as the journalism version of Ronald Reagan slapping the Soviet Union with the well-deserved label, “The Evil Empire.”  Many commentators, including former Soviet President Mikhail Gorbachev, traced the beginning of the unraveling of the Iron Curtain to Reagan’s brutal frankness. Continue reading

“The Good Wife” Jumps The Ethics Shark

jumping the shark

I saw this coming several seasons ago- that the once ethically challenging CBS legal drama “The Good Wife” was on the way to strapping on Fonzie’s old water skis and jumping the old Ethics Shark. Sure enough, after being able to watch the show irregularly and being either confused or disappointed when I did, I finally got a chance to watch an entire episode last night. The Shark has been officially jumped and TGW is no longer bothering to check with its legal ethics consultants. This is known as “The David Kelley Syndrome,” as all of that producer’s legal dramas, “The Practice,” “Ally McBeal,” “Boston Legal,” etc, begin plausibly and end up in the Legal Ethics Twilight Zone as the writers run out of ideas.

In last night’s episode, “Cooked,” Good Wife Alicia’s defendant was charged with making GHB. He claims innocence because he wasn’t making authentic GHB, but a GHB-like substance,without the same chemical compound as GHB itself and thus less dangerous.  Alicia explains the law to him, which is that he would be better off if his intent was to make GHB but he  ended up with the pseudo GSB by mistake, instead of successfully making the possibly illegal GHB-like drug intentionally.  She says that he needs to be clear which he did, and tells him to tell the truth.

This is the common, much criticized defense lawyer tactic called “The Lecture” in the novel “Anatomy of A Murder.”  A lawyer is bound to explain the law to his or her client, and that sometimes means educating a client regarding how to “remember” what happened.

Then Alicia discovers that her defendant isn’t who he claims to be. He’s an FBI agent, and he’s part of an FBI sting to prove the judge in the case is taking bribes. She says she’s going to tell the judge about his false identity (and also that the charges were fake) so he tells her and that if she blows his cover, he’ll tell the judge that she suborned perjury by  giving “The Lecture.” She backs off, and agrees not to tell the judge.

Suspend her.

1. If she has a personal interest (Rule 1.7) that conflicts with her duty to protect client confidences (Rule 1.6), like her conflicting duty as an officer of the court to report a fraud on the court, a.k.a. THE WHOLE CASE, then the least she must do is withdraw under Rule 1.16. Continue reading

A Rare Ethics Hero-Ethics Dunce: Maine Attorney General Janet Mills

I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

If one’s only point of reference were Eric Holder, one might get the impression that the job of an attorney general is to use the influence and power of the office to pursue the executive’s political and policy objectives. That is not what an attorney general is supposed to do, however, because the top lawyer of a city, a state or the U.S. is pledged to represent all the people, not just those who patronize a particular party, and the top lawyer’s client is not the executive, but the entire government entity. If that entity becomes corrupt, then the client becomes the public that is being betrayed.

Maine’s Attorney General Janet Mills illustrated how the job should be done and can be, if the lawyer holding it is ethical and not merely a serving as a political yes-man. Governor Paul LePage, a Republican, wanted to appeal the federal government’s  denial of his request to remove about 6,000 low-income young adults, 19- and 20-year olds,  from Maine’s Medicaid program. Normally the Attorney General would handle the litigation, but Mills refused, insisting that it was  a case that could not be won, and would waste state resources. Excellent. Continue reading

Unthical Quote of the Week: Bill Cosby Attorney Martin Singer

lying-lawyers“The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40 or even 50 years ago have escalated past the point of absurdity.These brand new claims about alleged decades-old events are becoming increasingly ridiculous, and it is completely illogical that so many people would have said nothing, done nothing and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of so many years.  Lawsuits are filed against people in the public eye every day. There has never been a shortage of lawyers willing to represent people with claims against rich, powerful men, so it makes no sense that not one of these new women who just came forward for the first time now ever asserted a legal claim back at the time they alleged they had been sexually assaulted. This situation is an unprecedented example of the media’s breakneck rush to run stories without any corroboration or adherence to traditional journalistic standards. Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop up out of the woodwork. When will it end?

—-Martin Singer, one of comedian Bill Cosby’s lawyers, trying to quell the public relations storm that threatens to blow the 77-year-old icon’s career and reputation apart.

Wow.

I advise lawyers not to make sweeping, emphatic statements like this, for several reasons. First, it comes very close to violating the ethical prohibition against dishonesty, misrepresentation, fraud and deceit. If the lawyer wants to say such words on behalf of his client, that’s one thing, and legitimate representation, though I would prefer to see such statements come from a publicist. For Singer to say something like this on his own behalf, however, harms all of his other clients by scarring his credibility. I don’t believe him, and when it becomes indisputable that Cosby is guilty and that his lawyers had to know, no one will be able to believe him again. Lawyers are supposed to tell the truth, and to represent even the most despicable clients without behaving unethically themselves, within the standards of the profession. That can be difficult, as in this instance. That is why lawyers get the big bucks, however. They should be able to walk that tightrope.

Singer falls right off: Continue reading

Occupational Hazard: Those Annoying, Hair-Trigger Ethics Alarms

cab metter

The danged ethics alarms start ringing loudly at the oddest times.

On Thursday afternoon, I was completing a cab ride from Houston’s Bush airport to the downtown law firm where I was to participate in an elaborate Inn of Court presentation, when I noticed some fine print on the window to my left. In its wisdom, the state of Texas had a)  designated me a senior before my time, and b) decreed that such newly-minted seniors were among those guaranteed  a 10% discount on their can fares. I had two disparate reactions to this stunning development in rapid succession.

First, in the tradition of Shirley MacLaine in “Terms of Endearment” when she raged at her daughter (Debra Winger) for becoming pregnant and thus making it imminent that she would be a grandmother, I was ticked off. Then I thought, “Well, what the hell. If Texas wants to save me money (this was going to be a hefty fare), why should I stop it?” Then the ethics alarms started ringing. Continue reading

Ethics Dunce: ARod-Plunking Red Sox Pitcher Ryan Dempster

I’ll admit it: I came thiiiiis close to designating Red Sox pitcher Ryan Dempster an Ethics Hero. Right after he intentionally threw a fastball  into Alex Rodriguez’s ribs on what would have been ball four, I was ready to write the post. Good for Dempster, I thought, making a statement for all the players who deplore steroids and the cheats who use them and for all the fans who feel that sociopathic, lying, greedy players who have debased the greatest game on earth with their use of PEDs. I continued to think that even after the Red Sox lost last night’s game against the Yankees, in no small part because Dempster put the Yankee third baseman, who continues to play while he appeals Major League Baseball’s suspension of him for this season and next, on base.

I was not, however, thinking clearly or ethically at the time.

Now, I am. Continue reading

Here’s Something Else For Unemployed Law Grads To Worry About

Damocles, Attorney at Law

Damocles, Attorney at Law

A legal ethics specialist with the D.C. Bar, speaking at the Bar’s mandatory ethics course, opined that a lawyer’s student loan debt could create an irresolvable conflict of interest preventing him or her from taking on certain cases, at least while complying with the ethics rules

I never thought about that before, but horrors!…he’s right! Continue reading

The Part of Legal Ethics The Public Will Never, Ever Understand

Sen. Brown has the pulse of the public on this issue, and like the public, he’s ignorant.

Especially since politicians like Scott Brown keep making sure that they misunderstand.

In this week’s Massachusetts Senate debate between Sen. Scott Brown and Democratic challenger Elizabeth Warren, Brown slammed the anti-corporate crusader, the self-styled intellectual catalyst for the Occupy Movement, for accepting $250,000 from the Travelers insurance company to help the company deny claims for asbestos poisoning. He said:

“You chose to side with one of the biggest corporations in the United States: Travelers Insurance. When you worked to prohibit people who got asbestos poisoning, and I hope all the asbestos union workers are watching right now. She denied, she helped Travelers deny those benefits for asbestos poisoning, made over $250,000 in an effort to protect big corporations….”

Brown is accurately stating the way most people look at lawyers and what they do. But he is absolutely mistaken. His characterization of what Warren did is incorrect, and his inference of hypocrisy is unfair.  It is all the worse because he is a lawyer himself. If Senator Brown, as a lawyer, doesn’t understand what’s wrong with his accusation, he should. If he does know, then he is undercutting his own profession for political gain. [NOTE: The original version of the post incorrectly stated that Brown was not a lawyer. My thanks to Mass lawyer James Flood III for flagging the error.] Continue reading