The “White Christmas” Ethics Guide 2020

2020 Introduction

I have some very dear friends who are still angry with me for writing this admittedly harsh analysis of their favorite Christmas movie. Maybe that’s why I didn’t post it last Christmas season; I don’t know. It really is an ethics mess, however, and as I’ve stated elsewhere this week on Ethics Alarms, if you are going to make an ethics movie, someone involved ought to have functioning ethics alarms. The heartwarming ending—I still get misty when the old general played by Dean Jagger, gets saluted and serenaded by his reunited army unit—doesn’t make up for all the gratuitous lying and betraying going on in the rest of the film.

I have never mentioned this here before, but the movie was the result of an ethical act by one of the most unlikely people imaginable, Danny Kaye. If you search for Danny here, you will find that I have more connections to him than to any other entertainer, primarily through my co-writing and direction of an original musical about him, written by his long-time publicist and my friend. I credited Kaye with my interest in performing, musicals, and comedy, but my research into the real man was disheartening: in stark contrast to his persona and his public image, Danny was a miserable, paranoid, selfish, mean and insecure sociopath when he wasn’t playing “Danny Kaye,” which could be on stage or off it. “White Christmas” had been conceived as a re-make of “Holiday Inn” with the same cast, Bing Crosby and Fred Astaire. Fred couldn’t do the project, so his part was re-written for Donald O’Connor, who became ill so close shooting that there was no time to retool the script and have the film ready for its target holiday release. In desperation, the producers asked Kaye if he would play Bing’s side-kick even though it meant 1) playing a support, which he had never done in a movie since becoming a star 2) playing a role that couldn’t highlight his special talents 3) subordinate himself to Bing Crosby, who was indeed the bigger star and box office draw, and most daring of all, expose his own limitations by doing dance numbers created for Donald O’Connor. Kaye was not a trained dancer, just a gifted mimic and athlete who could do almost anything well. Danny (actually Sylvia, his wife, agent and and career Svengali) had his price for the rescue: he demanded $200,000 and 10% of the gross.

Everyone around Danny Kaye was shocked that he agreed to all of this. Not only did he agree, he also amazed everyone by not playing the under-appreciated star on set, by doing O’Connor’s choreography as well as he did, and by knowing how not to steal focus from the star, something he infamously refused to do when he was in “Lady in the Dark” with Gertrude Lawrence. The movie was the top grossing film of 1954, and the most successful movie musical up to that time.

Danny’s good deed was punished, because today it is by far the most seen of his films, and is likely to be the source of his public image as time goes on. Yet it is not his best movie, or a fair representation of what made him a unique and popular supporter. Like Darren McGavin, a fine and versatile dramatic actor cursed to be remembered only as the father in “A Christmas Story,” Danny’s slice of immortality also minimizes his legacy and talent. Watch “The Court Jester.” With your kids or grandchildren.

1. The First Scene

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“Miracle On 34th Street,”An Ethics Companion,Chapter 5: Boy, This Guy Sure Doesn’t ACT Like He’s Santa!

Bellevue ride

(The Introduction is here.; Chapter I is here.;Chapter 2 is here; Chapter 3 is here; Chapter 4 is here.)

Everything so far has been laying the foundation for the climactic and justly famous courtroom scene. But before that can happen, there needs to be a pretext for getting the story into court. Of course, the fact that Kris committed assault and battery on Mr. Sawyer would normally be enough to get him there on a criminal charge, but that wouldn’t have anything to do with Santa Claus, so we have a lot of dubious plot machinations that make no sense at all. in rapid succession—got to get to that courtroom scene!—we get…

Sawyer’s Perfidy

First, Sawyer acts like he’s been grievously wounded so he can credibly insist that Kris be committed. He’s a liar as well as a weasel. He’s also not very bright. He knows Macy’s has been using Kris a public relations cornucopia. He has to know that in any feud with a store Santa Claus who has made money for Macy’s, he’ll lose. Sawyer’s antipathy towards Kris to his own likely detriment makes no sense at all.

Doris’s Failure

Doris refuses to have anything to do with sending Kris to Bellevue, the NYC mental hospital, to be examined. She is, however, unlike Sawyer, responsible for Kris, and has said as much. Her duty is to Macy’s, and her employee attacked someone. This is where conflicts of interest get you in the workplace, and she should have seen this coming. Her job is to fix the problem, and instead she acts helpless. I find this to be nascent sexism in the film: “just like a woman,” Doris is being sentimental when she needs to be practical and decisive.

Actress Maureen O’Hara, a notorious tough proto-feminist, must have been seething.

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Ethics Proposition: Justice Barrett Should Immediately Recuse Herself From Any Future SCOTUS Decisions Relating to the 2020 Presidential Election

Barrett Trump

I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.

I will also concede that the arguments that she should not recuse are significant and important:

1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.

2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.

3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.

4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.

All this is true,

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The Left’s Assault On The Rule Of Law And The Legal Profession’s Cowardice, Or “Nice Little Firm You Have Here—Be A Shame If Something Were To Happen To It!”

unbalanced-justice-scale

One of the many benefits of the Trump Administration and the concomitant 2016 Post-Election Ethics Train Wreck, one theory goes, is that it has exposed the ethical rot and lack of integrity of so many previously admired and trusted professions.

Among those that have thoroughly disgraced themselves in their rush to enamor themselves before their progressive, President Trump- loathing colleagues and friends—you know, the good people—have been journalists (of course), academics, psychiatrists, doctors, epidemiologists, ethicists, historians, teachers, judges and lawyers. Thus it shouldn’t have been a surprise (though it was to me, as always an optimistic sap) when efforts to prevent the Trump campaign from having the best possible legal advocates as it pursues challenges to the 2020 election results would bear ugly fruit.

The NeverTrump Lincoln Project joined the anti-Trump Democrats in targeting the law firms hired by the campaign. Election law specialists Porter, Wright, Morris & Arthur and its lawyers were threatened with professional ruin. The theory went that daring to support the President of the United States constitutes a “dangerous attack on our democracy.” The firm, showing a dearth of legal ethics and integrity withdrew, whining that the assault on its reputation created a conflict of interest, was disrupting the firm, and had prompted at least one lawyer’s resignation. Since then other firms have dropped the campaign as a client, and the reason was fear—of losing clients, of being shunned in the legal community, of losing money. Mostly the latter.

This is only the latest progression in the decay of basic law firm ethics that began during the Obama administration. The reason is—broken record here—bias.

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Wednesday Ethics Windstorm,11/11/20: Liars, Knaves, Fools And Birds

Great Tit

1. Incompetent headline dept. Someone at a newspaper has to be alert enough to catch a risible headline like this:

Great tits

A Great Tit is the pretty bird above.

2. Who believes that MSNBC didn’t know this? (I don’t.) MSNBC was shocked—shocked!—to discover that the Pulitzer Prize-winning historian Jom Meacham, who had been a regular on MSNBC’s 24-7 anti-Trump barrage, never told them that he was working for the Joe Biden team. on speeches, including his victory address. Meacham appeared on MSNBC following the speech to comment on the speech he had written but didn’t disclose to viewers that the speech he loved cane from his own laptop as he said,  “Tonight marks — the entire election results mark — a renewal of an American conversation where we’re struggling imperfectly to realize the full implications of the Jeffersonian promise of equality,” said Meacham. “It’s taken us too long, our work has been bloody and tragic and painful and difficult and, Lord knows, it is unfinished, but at our best we try.”

MSNBC announced that due to this “discovery. Meacham would no longer be a paid contributor, but he would be welcome to appear on future panels, thus showing the high regard for integrity for which the network is famous. If Meacham lied to MSNBC and its viewers while withholding a crucial conflict of interest, why would he be allowed back on the air in any capacity? Why would anyone trust him?

I believe that MSNBC knew that Meacham was working for Democrats while he was bashing Trump. And this is yet another example of how unprofessional the profession of historian has become.

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The American Bar Association Has Lost Faith In Professionalism, It Seems.

For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.

Now the American Bar Association has apparently decided that it was all a myth. In  Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.

“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”

The opinion breaks possible personal relationships into three categories:

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The Great Ethics Train Wreck Of 1910

On this date, October 1, 110 years ago,  a massive explosion destroyed the Los Angeles Times building in the city’s downtown area, killing 21 employees and injuring many more. This obviously unethical act—though in the over-heated labor environment of the times, union activists would secretly defend it—set off a series of events in one of the great ethics train wrecks in U.S. history.

The explosion was a message to Los Angeles Times publisher Harrison Otis, a powerful opponent of the burgeoning labor movement in general and unions in particular. Determined to exploit the tragedy to turn public opinion against organized labor, he hired the nation’s most famous private detective, William J. Burns, to crack the case while his paper supplied an avalanche of anti-labor editorials and slanted news stories.  Otis, the leader of the Merchants and Manufacturing Association, a powerful group of business owners with extensive political connections, seemed less interested in justice for the dead than a decisive knock-out of the union movement itself.

Burns’ investigation led to the Bridge and Structural Iron Workers Union and their treasurer, John J. McNamara. Burns got a confession out of  a sketchy character named Ortie McManigal who had allegedly been the intermediary between McNamara and two bomb experts, and personally arrested John McNamara and his brother James in Indiana. Then Burns supervised the kidnapping and transportation of the brothers to California, where they could be prosecuted.

Convinced that the the McNamara brothers were being framed—some labor supporters even suspected that Otis had bombed his own building—Samuel Gompers and Eugene V. Debs pressured Clarence Darrow, then the premier labor lawyer in the U.S.,  to take on the McNamaras’ defense. Darrow had been ill and seeking to retire, but a recent stock market crash had left him broke as well. He agreed to take the case for the then unprecedented sum of $50,000 (about $1,368,000 today). The unions literally had children collecting nickels and pennies to build the defense fund.

The unions were Darrow’s clients under the existing legal ethics rules, but the brothers were also his clients, and their lives were at stake. This became a serious conflict when Darrow learned, within minutes of meeting with the McNamaras, that they were guilty.

Gompers had told him that the brothers had to be acquitted or the entire labor movement might be destroyed forever. The clients paying his fee, therefore, demanded a plea of “not guilty.” Darrow, however, became convinced that only a guilty plea would save the brothers from execution. Meanwhile, he knew that there was no way the McNamaras could get a fair trial. The Times was poisoning the jury pool daily. The prosecution was engaging in outrageous tactics, like bugging Darrow’s offices in L.A. They even had Darrow followed, and got incriminating photographs of the lawyer leaving the apartment of his long-time, off-and-on mistress, a female journalist covering the trial. Then they used the photos to try to force Darrow to withdraw from the case, threatening to show them to his wife, Ruby.

“Go ahead,” he said. “She knows all about Mary.” Darrow’s hands were hardly clean either: his agents had located the supply of dynamite in Indiana that the fatal charge had been taken from, and he hired a lawyer to hide the evidence in a safe. Continue reading

Sunset Ethics, 9/30/2020: Conflicts Of Interest, Sexual Harassment, Movies And Lies

1. Conflicts of interest on my mind. I narrowly averted a disastrous conflict of interest yesterday out of pure moral luck, so the topic is much on my mind; I’m still distracted by the near miss. Professionally, it was the equivalent of almost being picked off by a bus.

NPR Legal Affairs Correspondent Nina Totenberg reacted to the death of Justice Ginsburg with an essay on her 48-year friendship with RBG, saluting Ginsburg’s “extraordinary character.” That’s funny: Totenberg never told NPR’s listeners, nor did  NPR, that she had a personal relationship with the Justice, despite being charged with covering the Court and critiquing its decisions.  Kelly McBride, NPR’s public editor and senior vice president of the Poynter Institute, threw a metaphorical ethics foul flag,

“In failing to be transparent about Totenberg’s relationship with Ginsburg over the years, NPR missed two opportunities,”she wrote on the NPR website. “First, NPR leaders could have shared the conversations they were having and the precautions they were taking to preserve the newsroom’s independent judgment,” McBride said. “Second, having those conversations in front of the public would have sharpened NPR’s acuity in managing other personal conflicts of interest among its journalists.”

Ginsburg, who officiated at Totenberg’s wedding in 2000. Nonetheless, the correspondent,  who wears her progressive bias on her sleeve as it is, denied that the conflict compromised to her journalism, telling  the Washington Post that NPR’s listeners benefited from ther friendship because it gave her greater insight into and Ginsburg’s  thinking.

And that justifies keeping the relationship secret from listeners how, Nina?

2. From the “When ethics alarms don’t work” files: Lawyer Phillip Malouff Jr. of La Junta, Colorado, was censured for a series of episodes of unprofessional behavior and sexual harassment.

In November 2016, Malouff  winked at a magistrate judge and said, “When you get back from your vacation, I better be able to see your tan lines.” When he visiting the same magistrate’s chambers to discuss scheduling matters, he  said, according to the female judge,: “Ask your husband a question for me when you get home tonight. Ask him what it’s like to have relations with someone who wears the robe. It has always been something I’ve wanted to do, but there have never been any women judges until now.”

Malouff  was informed that his comments were unprofessional and a violation of the Colorado Judicial Department’s anti-harassment policy. Ya think?

In July 2019, Malouff asked a judicial assistant to check whether the mother in a parental rights hearing had an outstanding warrant. When the assistant replied, “She is good.” Malouff  responded, “Her husband told me that she is good.

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Pre-Debate Ethics Distraction, 9/29/2020: Prediction: Whatever Happens, I’m Going To Hate It, And The News Media Will Lie About It.

The question for the ages: Was this the most unethical pair in a Presidential debate before tonight?

1. Well this seems ominous. This morning the Trump campaign requested  that a third party inspect both candidates for electronic devices or transmitters. President Trump had already consented to such an inspection, and the Biden campaign had reportedly agreed to this days ago. The New York Post reported a few hours ago that the Biden camp refused the condition.

What’s going on here? I can only assume that it’s gamesmanship. Biden would be beyond demented to try to cheat in a broadcast debate.

2. Here are results of the FIRE’s college free speech rankings survey, as determined by students. My alma mater ranked #46 out of the 56 schools ranked; no surprise there. The school I worked for as an administrator after getting my law degree there is two slots worse.

3. Prediction: It will not end well for poor David Hogg. I foresee a tragic opera in his future. Too young for the prominence he was thrust into as a survivor of the Parkland shooting, cynically exploited by the news media and activists who did not care about him, he is now condemned to have no support from any quarter. His best course would be to quietly leave the public gaze forever, and fight off the addiction of fame. It’s not easy. Continue reading

Thursday Ethics Thirst-quencher, 8/20/2020: Actually, This Doesn’t Taste So Good….

I filled in a gap in my history knowledge today, one I’m embarrassed to have had for so long. I remember being creeped out the first time I heard John Hinckley crooning the song he dedicated to Jodie Foster on her answering machine at Yale. “Ohhh Jodie! Ohhh Jodie! My love will turn you on!” All these years, I thought Hinckley had composed that song in his sick infatuation. Today, almost 40 years later, I found out that he just ripped off a John Lennon song called “Oh Yoko,” which I heard for the first time on the Beatles Channel on Sirius-XM. Am I the only one who didn’t know that? My ignorance is my fault: I would no more listen to anything extolling Yoko than I would voluntarily groove on “William Shatner’s Greatest Hits.”

And what was it about  Beatles compositions that inspired aspiring killers?

1. Yes, this seems rather irresponsible...Here’s a trailer for an upcoming Netflix series:

Over at The American Conservative, columnist Rod Dreher is disgusted, with good reason. He writes in part,

“Twerking their way to stardom. Eleven years old….These are little girls, and this Netflix show has the acting like strippers as a way of finding their way to liberation. What is wrong with these Netflix people? Do they not have children? Do they think our daughters are only valuable insofar as they can cosplay as sluts who are sexually available to men? ….There is nothing politicians can do about this…I hope sometime this fall a Senate committee calls Netflix CEO Reed Hastings] to Capitol Hill and forces him to talk about how proud he is that he has 11 year olds twerking on his degenerate network.”

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