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.”
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Comment Of The Day: “Open Forum!” Thread On For-Profit Prisons

Finally having the opportunity to read what the recent “Open Form!” necessitated by my enforced absence from blogging for two days, hath wrought, I encountered several deserving Comment of the Day candidates. I will be choosing the winner from the wonderfully entertaining rumble among multiple Ethics Alarms stalwarts on the alleged “school-to-prison” pipeline and a whole bundle of other ethics topics (proper treatment of elected officials on social media, appropriate treatment of citizen criticism by elected officials, and others) imminently, but for now, let’s focus on the topic of for-profit prisons, an ethics issue under-discussed here previously. In this case, the Comment of the Day format is especially useful, because this excellent post is buried deeply among  117 others.

Here is James M.’s Comment of the Day on the topic, from the open forum of 8/28/2019…

As someone who worked for the Arizona Department of Corrections for 25 years, I think I can fairly assess both the advantages and problems associated with privately-run prisons. Contracting with various companies to provide various prison services can produce some substantial cost savings to the public, but has some negative effects that aren’t always considered. The Arizona Department of Corrections privatized several different areas during my career there, including medical care, food service, and some rehabilitative programs. The department has also held portions of the inmate population in units run by private contractors.

Advantages of privatization included direct cost savings (with private prisons costing less per bed) and the ability to share prison construction costs with the contractor, allowing the construction to become part of a multi-year contract, rather than an up-front payment. The direct cost savings can be difficult to fairly assess, as contractors would often refuse to accept those inmates who were most expensive to house, either due to having major medical issues, a tendency toward harassment litigation, or membership in a prison gang. Since the private prisons had some security issues that led to inmate escapes, departmental staff also spent considerable time screening inmates before they would be considered for placement in the private prison units. The complaint from ADC staff involved in these assessments was that “Of course they’re cheaper! If I got to pick and choose only the inmates who were least difficult to deal with, I could run my unit more cheaply, too!” Continue reading

Morning Ethics Warm-Up, 8/27/2019: Desperation

Good morning.

1. Here is why the breast-beating about “doing something” about climate change is dishonest, disingenuous, futile and pointless. Brazil is telling the rest of the world, especially nations that developed their own economies with reckless impunity on the way to wealth and power, to back off its demands that Brazil stop burning its own rain forest. Of course it is taking this stance, and Brazil isn’t the only developing nation that will take that position and has every right to take that position.

Brazil’s defiance is also a definitive rebuttal to the argument that the United States should spend billions—trillions?—in virtue-signaling climate change policies that under the most optimistic scenarios won’t “fix” anything without mass cooperation by nations in Brazil’s position—and that’s not going to happen.

2.  The theory: somebody has to pay. A judge in Oklahoma yesterday ruled that Johnson & Johnson  intentionally hid the risks and hyped the benefits of opioids, ordering the company to pay the state $572 million in damages. This is the first trial of a drug manufacturer for the destruction wrought by prescription painkillers.

I don’t know if the verdict is fair, having not seen the evidence and heard the arguments. I don’t know that the verdict will hold up on appeal. The theory used by the state was questionable: the judge found that Johnson & Johnson perpetuated a “public nuisance” by  contributing to an ongoing public health crisis that could take decades to address successfully. Yet there was no proof offered that doctors who prescribed the drugs were misled, or that Johnson & Johnson violated federal drug regulations.

Public nuisance laws typically apply in cases where something interferes with a right common to the general public and results in danger on roads, parks,and other public areas, and not usually public health, which is what the state argued in this case. Johnson & Johnson’s lawyers contended that the state was contorting public nuisance law to the point of being unrecognizable. Of course, the same argument was made when product liability laws started moving beyond the “buyer beware” stage.

Not reading and hearing all the evidence, I can only wonder if this is case of deep pockets being held responsible for a tragedy that had no single, obvious villain. Doctors prescribed drugs approved by federal regulators, and the drug manufacturers supplied them, legally. Then citizens took the drugs, voluntarily, in a political and social culture that increasingly shrugs off drug use and abuse. Continue reading

How Ironic! An Anti-Clinton Conservative Lawyer Plays The “Vast Left-Wing Conspiracy” Card

Attorney Larry Klayman was familiar presence during the Clinton administration.  The founder of Freedom Watch and Judicial Watch and conservative gadfly  helped bring dozens of cases against Bill Clinton, the White House, and various staff members and agencies, uncovered some damning documents in FOIA requests, filed government ethics complaints, and continued to champion conservative causes after he left Judicial Watch in other hands. He  represented  former Arizona Sheriff Joe Arpaio and  state’s rights activist rancher Cliven Bundy, among other clients. Now the District of Columbia Court of Appeals Board on Professional Responsibility Ad Hoc Hearing Committee has handed down a 183-page report finding that Klayman breached the D.C. professional ethics rules, recommending that he be suspended from the practice of law for 33 months, and have  he prove his rehabilitation and fitness to gain reinstatement.

According to the report, Klayman represented Elham Sataki, whom he helped file a 2010 sexual harassment suit against her employer, Voice of America.  Klayman persuaded Sataki to move to Los Angeles and offered to pay her housing and living expenses, telling Sataki she could later reimburse him. She took him up on the offer, but when  Sataki rejected Klayman’s overtures for a romantic relationship,  the findings state, the lawyer raised his fee demands to continue representing her sexual harassment claim. As a result, the report concludes, Sataki did not pursue her case. Continue reading

Somewhere, Steven Bochco Is Smiling…

In Steven Bochco TV legal dramas—the immortal “Hill Street Blues” was the best of them—everyone was sleeping with everyone else in the judicial and law enforcement system. Police chiefs were having affairs with defense attorneys, prosecutors were having affairs with judges, judges were having affairs with defendants. It was ridiculous, if entertaining, but gave an absurdly misleading impression to the gullible public about the legal system. Later, as Bochco’s star was waning, writer-producer David Kelley continued the myth with his many legal dramas

However, this is not to say that such unethical relationships don’t occasionally occur. Bochco, who died in 2018, would like this story, since he could have written it.

Alabama’s Judicial Inquiry Commission on Tuesday filed a complaint against Coffee County District Judge Christopher Kaminski, alleging that he has been carrying on a romantic relationship with an attorney who frequently practices in his court. Continue reading

Sunday Ethics Warm-Up, 5/12/2019: The Tricky Edition

Well, the news from Harvard has me half-headed and depressed, so I think I need to hear Winston Churchill’s favorite hymn…and my Dad’s, too.

1. I think this is known as “a drop in the bucket.”James Bennet, the editorial page editor of The New York Times, announced that he would recuse himself from any involvement in opinion coverage of the 2020 presidential election, after his brother, Senator Michael Bennet of Colorado, announced his candidacy for the Democratic nomination. I suppose this is admirable, as it is a standard conflicts of interest move, but I’m sorely tempted to call it grandstanding, and maybe even a diversion. Bennet’s brother candidacy is hardly the only blatant conflict of interest on the times staff that makes its news coverage and punditry suspect. Virtually all of them are Democrats, for example, and progressives. What’s so special about an editor’s brother making a completely futile run for the Presidency? (Quick: if you’re not in Colorado, can you picture his face? Name anything he has accomplished?)

This note from 2017 (in RealClearPolitics) puts the Times editor’s decision in proper perspective:

There is a pretty substantial symbiotic relationship between the political left in Washington and the media. While a few people went from the media to the Bush Administration, it was never like it was with Obama.

Jay Carney went from Time to the White House press secretary’s office. Shailagh Murray went from the Washington Post to the Veep’s office while married to Neil King at the Wall Street Journal. Neil King has left the Wall Street Journal to work for Fusion GPS. Linda Douglass went from ABC News to the White House and then the Atlantic. Jill Zuckman went from the Chicago Tribune to the Obama Administration’s Transportation Department. Douglas Frantz went from the Washington Post to the State Department and Stephen Barr went from the Post to the Labor Department.

Ruth Marcus, who heads the Washington Post Editorial Board, is married to the Obama Administration’s former Federal Trade Commission Chairman. Jonathan Allen had been at the Politico before going to work for Debbie Wasserman Schultz, then back to Politico before going to the left leaning Vox. Now he is at NBC News. Andy Barr worked for the Politico before leaving for Democrat politics. Michael Scherer was at both Salon and Mother Jones before going to Time. Laura Rozen was at Mother Jones and the American Prospect before Foreign Policy magazine. Even Nate Silver had started out at Daily Kos. Then, of course, there is Matthew Dowd, who worked for scores of Democrats before working for George Bush. That, though he later washed his hands of Bush, bought him street credibility with ABC News to become its senior politically analyst alongside George Stephanopoulos, formerly of the Clinton Administration.

It goes on and on in a feedback loop of incestuous politics and worldview shaping. In the Obama Era, it was all about protecting their precious. Now it is about undermining the President.

2.  Puerto Rico Ethics. OK, explain to me, if you can,  why this isn’t incredibly unethical:

From the Times:

The government oversight board leading Puerto Rico through its $123 billion debt crisis sued dozens of banks and financial firms on Thursday, saying that they had helped the island issue $9 billion of debt illegally, and that the people of Puerto Rico should not have to repay it.

The board said the debt should be voided because it exceeded the territory’s constitutional debt limit, and it added that Puerto Rico would try to recover hundreds of millions of dollars in interest and principal payments that it has already made.

The board was joined in the litigation by the official committee representing Puerto Rico’s unsecured creditors in the territory’s bankruptcy-like legal proceedings. Both plaintiffs said they understood they were making an unusual request, but asserted that no other approach would be legal or fair.

“The laws of Puerto Rico limit government borrowing authority for a reason: to prevent the government and its financiers from hitching the Commonwealth and its instrumentalities, as well as taxpayers and legitimate creditors, to a level of debt that cannot be repaid without sacrificing services necessary to maintain the health, safety and welfare of Puerto Rico and its people,” the plaintiffs said in one of several complaints…

What a great theory! The government of Puerto Rico has managed its finances irresponsibly and needs more money. “Hey!” says a brilliant staffer. “There’s a law that limits how much debt we can run up. Let’s borrow billions from banks illegally, then later sue them saying that the debt is invalid because they abetted our illegal act!”

3.  Candidate for the Rationalization #22 Hall of Fame. Rationalization #22 is one of the most cited entries on the Rationalization List, and in my opinion, the worst of them all:

22. The Comparative Virtue Excuse: “There are worse things.”

If “Everybody does it” is the Golden Rationalization, this is the bottom of the barrel. Yet amazingly, this excuse is popular in high places: witness the “Abu Ghraib was bad, but our soldiers would never cut off Nick Berg’s head” argument that was common during the height of the Iraq prisoner abuse scandal. It is true that for most ethical misconduct, there are indeed “worse things.” Lying to your boss in order to goof off at the golf course isn’t as bad as stealing a ham, and stealing a ham is nothing compared selling military secrets to North Korea. So what? We judge human conduct against ideals of good behavior that we aspire to, not by the bad behavior of others. One’s objective is to be the best human being that we can be, not to just avoid being the worst rotter anyone has ever met.

Behavior has to be assessed on its own terms, not according to some imaginary comparative scale. The fact that someone’s act is more or less ethical than yours has no effect on the ethical nature of your conduct. “There are worse things” is not an argument; it’s the desperate cry of someone who has run out of rationalizations.

Now outgoing Mayor of Chicago Rahm Emanuel has boasted in the  New York Times about his success at  introducing  police reform and reducing crime.Emanuel  makes his case in part by comparing Chicago’s crime numbers over the last two years with those of  Baltimore, one of America’s most dangerous, murder-prone, mismanaged cities. He omitted mentioning New York orLos Angeles, perhaps because his city had more murders in 2018 than New York and L.A. combined, though Chicago is smaller then either.

I wonder if the Chamber of Commerce is considering “Less dangerous than Baltimore!” as a promotional slogan. [Pointer: City-journal]

The Pulitzer’s Deliberate Ethics Blindness [Corrected]

It was incredible: the only qualified candidate for the Pulitzer Prize just happened to be the spouse of a Pulitzer board member! What are the odds?

[Note: an incompletely edited and proofed version of this post was mistakenly published. I apologize. Thanks to Tim LeVier for flagging the problem.]

All awards and prize organizations are subject to fair suspicion about their integrity, and collectively, they undermine each other. The Academy Awards get criticized by prominent blacks, and suddenly the number of black nominees explodes. The Nobel Prize committee, once the epitome of a well-respected and trusted awards program, exposes its political bias by giving a Peace Prize to Barack Obama for no good reason whatsoever.

Then, beginning in late 2017, in an expose published late last year by a Swedish newspaper, the Swedish institution was rocked by accusations  from18 women who said they were sexually harassed or assaulted by French arts promoter  Jean-Claude Arnault, who is married to poet Katarina Frostenson and is friends with Horace Engdahl, both  members of the  Academy that awards the Nobel Prize in literature.  Arnault was sentenced to two years in prison after being found guilty of raping a woman in 2011. This ugly publicity cast unwelcome light on more unethical conduct: a club called Forum that Arnault and Frostenson owned received a subsidy from the Academy. Yes, the members were voting finnacial benefits to themselves.  There were also credible reports of Frostenson giving names of winners to Arnault before they were announced,, allowing him place wagers and win money with insider information. As the scandal expanded, Frostenson and Engdahl refused to resign. Three other members of the Academy left in protest.

Nice. The Committee decided not to award a Nobel Prize for Literature in 2018.

I’m surprised they didn’t just give it to Barack Obama.

This brings us to the Pulitzers, which have always been suspect. Continue reading