Tag Archives: conflicts of interest

Res Ipsa Loquitur Ethics Quote Of The Day: Law Professor/Blogger/Irony Master Ann Althouse

free-bingo-design

The NYT article tells us that Sotomayor’s remarks were published in the Berkeley La Raza Law Journal and that she also said:

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”…

… Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives. Personal experiences affect the facts that judges choose to see,” she said.

So has Donald Trump refrained from doing a disservice both to the law and society?

—-Ann Althouse, making a slam-dunk point about the hypocrisy of the uproar over Donald Trump’s “racist”suggestion that a Hispanic-American judge might be biased against him.

Althouse and I are right, and almost everyone else is wrong. It’s obvious, and beyond rebuttal on the facts. Althouse has joined me as one who also deplores everything about Donald Trump but who is determined to call out intellectual dishonesty and unfairness in the attacks against him. She also posted this… Continue reading

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Ethics Observations On The Donald Trump-“Mexican” Judge Affair

Judge Curial. Funny, he looks white to me...

Judge Curial. Funny, he looks white to me…

“Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial… We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us..Watch how we win it as I have been treated unfairly. . . . So what happens is the judge, who happens to be, we believe Mexican, which is great. I think that is fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs. I think they are going to love it. I think they are going to love me. . .I think Judge Curiel should be ashamed of himself. I think it is a disgrace he is doing this… It is a disgrace. It is a rigged system…They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. “

This is what Donald Trump said about Mexican-American judge Gonzalo Curial, who is currently presiding over the civil law suit involving now-defunct Trump University. That is all of it, with the rest being general Trump-speak.

The initial reaction in the news media and from the anti-Trump legal commentators (that is, essentially all legal commentators except the ones who have to eat alone at their law school dining rooms) was that Trump’s entire rant that contained the sentiments above were a threat to the rule of law and judicial independence. As I explained here, that was both hyperbole and a double standard.

It also, as I expected, was far too technical a complaint for the average voter to understand or get upset about, even if it had been valid and fair, which it wasn’t. So the anti-Trump forces, which are mighty and legion, decide to shift gears, and rather than attack the statement as a threat to the Constitution, condemn it  as “racist.” It was so racist that Buzzfeed decided that it could get brownie points by pulling out of an ad deal it had made with the Republican Party by professing revulsion at the party’s presumptive nominee’s “racism.”

The news media has now decided that it is just a fact that Trump’s comments about the judge were “racist.” That’s how the topic is being discussed. Nobody looks at the statement that sparked this nonsense: Trump said something racist, and that’s all there is to it.

Except that he didn’t.

I can’t keep track of all of the subsequent statements Trump has made or will make to defend himself. Since he talks like a stream of consciousness novel written by a Red Bull-guzzling cab driver, he may have said or will say something that is more inflammatory than the statement being attacked; remember, the man literally doesn’t know what is going to come out of his mouth until he hears it. For now, I’m going to stick to the statement that started this.

1. He said that Judge Curiel “was a hater.”

2. He implied that he was biased against Trump, and that this was a “disgrace.”

3. He said, in what I am certain was one of those examples where Trump’s tongue got the jump on his brain, that “we believe” the judge was “Mexican.”

4. He said that the system “was rigged,”that Judge Curiel should recuse himself, and that Curiel should be ashamed.

That’s it!

None of that constitutes a “racist” statement. It does not even constitute  a bigoted statement, and it is in no way the magnitude of offense the Democrats, media and Trump opponents are claiming, indeed, stating it to be.

Before I list the ethics touch-points in this disturbing event (the event being a news media lynch mob devoid of proportion or fairness controlling the discussion and misrepresenting a Presidential candidate), let me make this clear, as if I hadn’t already in dozens of Ethics Alarms posts: Continue reading

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From “The Ethics Incompleteness Theorem” and “The Ends Justify The Means” Files, The Pautler Case: My Favorite Legal Ethics Dilemma Ever!

"Irena's Vow" Pictured L to R: Maja Wampuszyc, Tracee Chimo, Tovah Feldshuh (kneeling), Gene Silvers

The Sundance Channel was doing a “Law and Order” marathon this week, and I happened to see an episode from 2002 that I had missed. It was based on the Pautler case in Colorado from the same year.

In “DR 1-102,”  Assistant DA Serena Southerlyn (Elisabeth Rohm) deals with a hostage crisis in which a man suspected of bludgeoning two women to death claims he will release his captive, held at knifepoint (above), if he can consult with an attorney. Southerlyn volunteers to enter the scene, and obtains both the hostage’s release and the killer’s  surrender, but only by deceiving him into believing that she is his lawyer, and not a prosecutor working for the police and the State. Although Southerlyn is hailed as a hero, the bar seeks to disbar her, charging her with violating Disciplinary Rule 1-102 (now New York RPC 8.4 d., which prohibits lawyers from lying.  .

Actually, Serena did a lot more than that, as did her model, Mark Pautler, the Jefferson County (Colorado) assistant D.A. whose real life conduct created a legal ethics dilemma that is debated to this day.

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler  arrived at a gruesome crime scene where three women lay not just murdered, but chopped in the skull.  All had died from hit in the head with a wood splitting maul. The killer was William Neal, who had apparently abducted the three murder victims, one at a time, and killed them over a three-day period. Now, police said, he was at another locale, having released three hostages he had held in terror for about 30 hours. Neal left in the apartment a tape recording that detailed all of his crimes, including a fourth murder and rape at gun point.

Neal contacted police at the apartment using his cell phone and personally described his crimes in a three-and-a-half hour conversation. The officer speaking with Neal took notes of the conversation and occasionally passed messages to Pautler and other officers at the scene. A skilled negotiator, she urged the maniac to surrender peacefully. Efforts to ascertain the location of Neal’s cell phone were unsuccessful, and it was feared that if Neal did not surrender, others would die.

Neal made it clear he would not surrender without legal representation. The police did not trust the public defenders office to handle the situation, fearing that a defense counsel’s advice might lead Neal not to place himself in police custody. Pautler also believed that a public defender would advise Neal not to talk with law enforcement. Neal was savvy enough, he felt, that a police officer could not effectively pretend to be his lawyer, so Pautler agreed to impersonate a defense attorney over the phone He told Neal that his name was was “Mark Palmer.”

Though in the ensuing phone conversation Pautler tried to avoid giving direct legal advice, it was clear that Neal believed “Mark Palmer” worked for the public defender’s office and represented him. And the deception worked: Neal eventually surrendered without further incident.

Not surprisingly, the Colorado Bar had problems with Pautler’s conduct. He was charged with violating two ethics rules, the equivalent of the one used in the “Law and Order” episode and also Colorado Rule 4.3, which requires a lawyer to inform an unrepresented party so it is clear that he isn’t representing him, and to give no legal advice other than to get an attorney. They could easily have charged him with violating others. like Rule 1.3, requiring diligent representation (Call me a stickler, but trying to trick your client into surrendering to police isn’t what the rule has in mind), Rule 1.4, which requires a lawyer to keep a client informed (“Oh: I’m really a prosecutor!“), Rule 1.6, Confidentiality (Pautler shared what Neal told him with police; a lawyer can’t do that! ) Rule 1.7, Conflicts of Interest (Ya think?) and Rule 4.1, which prohibits lawyers making false statements of fact, like “I’m here to help you.” Continue reading

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Comment of the Day (2): “Ethics Hero: Dallas District Attorney Craig Watkins”

jag

The celebration here of Dallas DA Craig Watkins’ installment of an open file policy to ensure that crucial evidence that might exonerate a criminal defendant doesn’t get “inadvertently” left out of the material shared with defense counsel prompted this comment from one of the Ethics Alarms resident Marine vet, THE Bill:

“I’ve always wondered why the civilian courts haven’t adopted the military practice of having both the prosecutor and the defense council in the same office under the same command as they do in JAG. It would seem that this would eliminate the US versus THEM mindset.”

I responded…

“It’s because of loyalty and trust, Bill. The adversarial relationship and the appearance of such assures the accused that the two lawyers aren’t colluding against the defendant, and attorney-client confidentiality is surely at risk if there is not physical distance. That’s why in law firms a lawyer with a client who might be adverse to another lawyer’s client in the same firm has to be screened from substantive contact with the other lawyer.”

(I will note here that the last section about screening is an over-simplification of a very complex and confusing issue, as when and if screening is permitted varies state to state, and in many cases still isn’t enough to deal with an unwaivable conflict of interest.)

texagg04 then added the following discussion of the cultural differences between the military and civilian America, and how this informs the differences between the ways the respective systems deal with criminal prosecutions.

This is an appropriate place to salute tex, who is among the most prolific, serious and vital Ethics Alarms commentators. As his comments are often in an advocacy or adversarial mode rather than an expository one, his percentage of  officially recognize commentary excellence is less than it should be considering the consistent quality and frequency of his participation here. He has long made Ethics Alarms better and sharper, if perhaps scarier for first time swimmers in these waters, since thanks to tex (and others), the tide is swift and merciless.

I hope he realizes how much I value  and appreciate his thoughtful and vigorous contributions.

Here is texagg04’s Comment of the Day on the post, “Ethics Hero: Dallas District Attorney Craig Watkins.”

There is a presumption given the weight of military Commissions combined with the added weight of the Oaths of Office, that barring any obvious corruption, the officers in charge are not corrupted. Whereas in the civilian world, the presumption that so much burden lies on the state and the accused’s innocence until proven guilty, that even a hint of amiability between defense and prosecution is enough to worry about corruption. Continue reading

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The Real Legal Ethics Conundrums In “Bridge of Spies”

bridge-of-spies

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

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A Conflict of Interest Lesson: The New York Observer’s Donald Trump Endorsement

Trumps

Stipulated: Jared Kushner, who is married to Donald Trump’s daughter Ivanka Trump, and who owns the The New York Observer, which he purchased in 2006, was in a difficult situation regarding the New York Republican primary. (That’s Jared on the right in the photo above.)

He had a clear and unresolvable  conflict of interest. If his paper endorsed Trump, the endorsement would appear to be dictated by family loyalty rather than objective analysis, and would harm whatever credibility the paper has left (it has been falling in influence and quality for a long time). If The Observer endorsed anyone else, in addition to whatever problems it would cause Kushner behind closed doors (and they would undoubtedly be considerable), a rejection by a paper with such a strong Trump family connection would be interpreted as having special significance, and would be handing a potent weapon to Trump’s adversaries.

Kushner’s dilemma was made worse by the fact that for any newspaper to endorse Donald Trump for President without a conflict of interest that at least would explain such an idiotic position would be tantamount to an admission of collective insanity, instantly turning such a  paper into the successor of the late, lamented Weekly World News, which was prone to breaking scoops like this one:

Weekly_World_News_-_Cover_Art_4800

Faced with these two mutually unacceptable alternatives, there was only one ethical, rational, responsible course that would acknowledge the conflict of interest without falling prey to it: endorse nobody, and explain why.

Nah! Continue reading

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Barbra Gives An Ethics And Intelligence Test!

Streisand tweet

Quick, now: what is Babs missing, other than the basic ethics principle that “Everybody does it” is not a justification or an excuse for unethical conduct?

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