Tag Archives: conflicts of interest

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading

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Morning Ethics Warm-Up, 5/8/2018: George Washington, Elaine Chao, Brown-Haired Fox News Babes And Clumsy Cheerleaders

Good Morning!

1. Diversity at Fox News! There was a brunette co-anchor sitting with Bill Hemmer this morning. I almost spit out my coffee, Now if the network would only hire a female newsreader who wouldn’t be a credible contestant in a beauty pageant, the culture might advance a bit…

2.  Can an employer refuse to hire an asshole? The NFL Players Association has filed a grievance  on behalf of free-agent safety Eric Reid,  alleging collusion that has denied him a job for the upcoming 2018 season, and arguing that no NFL rule mandates players stand during the playing of the national anthem, that the league has indicated it respects “the rights of players to demonstrate,” and the collective bargaining agreement states “league rules supersede club rules.”

The grievance loses, or the NFL is in big trouble. Well, it is already in trouble, but more trouble. Demonstrating players annoys fans and hurts business. The NFL may force teams to allow jerks like Reid and ex-player Colin Kaepernick to interfere with Sunday head-bashing frolic by imposing their half-baked politics on the proceedings, but team can certainly choose to pay million dollar contracts to players who have better judgment, and are thus more trustworthy employees.

3. At George Washington University, it’s The Political Correctness Morons vs. The Conflict-Averse Spineless! I can’t believe I’m writing this. No, of course I can: I’ve predicted it.

The following on-line petition has garnered the requisite number of signatures among George Washington University students, and now will get an official response:

“We, as students of the George Washington University, believe it is of great exigence that the University changes its official mascot. The use of “Colonials,” no matter how innocent the intention, is received as extremely offensive by not only students of the University, but the nation and world at large. The historically, negatively-charged figure of Colonials has too deep a connection to colonization and glorifies the act of systemic oppression. Alternative nickname recommendations are “Hippos,” “Revolutionaries”, or “Riverhorses.”

They apparently don’t teach American history at GW.  The nickname  for the athletic teams  is “The Colonials” because the United States, prior to its liberation, were called “the Colonies,” because they were colonies. Colonials are those who have been colonized, not those who do the colonizing. The mascot, meanwhile, is called “George,” because he is a caricature of George Washington, who led the Colonials to victory over Great Britain, and anyone who can’t puzzle that out shouldn’t be in college.

The petition represents the mutant offspring of a one night stand between The Confederate Statuary Ethics Train Wreck and The Niggardly Principles.

Who will win? Oh, the Morons, probably. On campuses the Morons almost always defeat the spineless administrators, as well as common sense and rationality. [Pointer: Res Ipsa Loquitur]

Oh…here’s George:

4.  Speaking of spineless…The cheerleading  coaches at Hanover Park High School in New Jersey decided that there would be no more try-outs for the squad. The school’s athletic director said that after a single mother complained about her daughter not making the cut, the policy would be changed in favor of “inclusion.” The school board released a statement saying: Continue reading

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Morning Ethics Warm-Up, 4/18/2018: The Bad, The Beautiful, And The Stupid

Good morning, everyone…

1. Tales of the King’s Pass. Fox News put out a statement saying that Sean Hannity had its “full support.” We can assume that means no punishment, no sanctions, not even any public regrets, despite the fact, and it is a fact, that the right-wing talk-show host-turned-Trump propagandist went on the air and defended Trump’s fixer, Michael Cohen, without mentioning the fact that Hannity was Cohen’s client. Thus Fox is announcing, in effect, that undisclosed conflicts of interest are just fine and dandy if your ratings are good enough. This also means that Fox News is admitting that it really doesn’t care about candor, honesty, and objectivity, since it will ignore blatant violations of all three if the profit is sufficient.

In fairness to Fox, Hannity’s blatant biases toward all things Trump are no more egregious than the open Obama bias displayed across the mainstream media’s full spectrum of journalists and pundits; it just stands out more because he has less company. However, this is a specific conflict of interest, with Hannity having undisclosed connections to a newsmaker that could reasonably affect his commentary. The closest parallel would be ABC’s George Stephanopoulos reporting on the Clinton Foundation’s dubious activities without telling viewers that he was a $75,000 donor. ABC didn’t discipline him, either, but at least he made a public apology on the air.

To make the King’s Pass case even stronger, after Politico reported this week that dinnertime news anchor Bret Baier played nine holes of golf with President Trump over the weekend, Fox News acknowledged that Baier was admonished by the president of the network.  I don’t agree with the reprimand at all. The opportunity to spend that kind of time with a President is invaluable, a rare opportunity to acquire insight and access over an extended period of time. The idea, I assume, is that it creates the illusion of chumminess. It’s a dumb illusion. If I were a journalist,  I would play golf with anyone if it allowed me to learn something. If I were president of a network, I’d reprimand a reporter for turning down such an opportunity.

2. The Virtue-Signaling Hall Of Fame. Starbucks is reacting to the PR nightmare arising out of the arrest of two black men for refusing to order anything while waiting for a companion in a Philadelphia Starbucks by a grand gesture: it will close all U.S. stores and corporate offices on the afternoon of May 29 for “employee racial bias training.” I suppose this is good crisis management, though cynical and non-substantive. It also permanently tars as a racist the Starbucks ex-manager, who says she was following a locale-specific company policy in an area that had experienced problems with loitering. Continue reading

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Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed. Continue reading

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Morning Ethics Warm-Up, 4/17/2018: Blacklisting, Boycotts, And A Fox News Ethics Breach

Good Morning, all.

1 The blacklisting of R. Lee Ermey. Ermey, the ex-Marine turned actor who gained fame playing a Marine drill sergeant in “Full Metal Jacket,” died this week. I had thought he might already be dead, since I hadn’t seen him show up in movies or TV shows for quite a while. No, it appears that he was blackballed by Hollywood after he criticized President Obama in 2010, while he was being hired with some regularity. Speaking at a Marine Corps Reserve’s Toys for Tots rally, he said it was difficult to raise money for the charity because “the economy sucks” and went on to blame the Obama Administration, saying,

“We should all rise up, and we should stop this administration from what they’re doing because they’re destroying this country. They’re driving us into bankruptcy so that they can impose socialism on us, and that’s exactly what they’re doing, and I’m sick and damn tired of it and I know you are too.”

Ermey’s agent and the sudden reduction in his offers persuaded the tough Marine to beg for forgiveness with an abject apology for daring to critique Obama so harshly. Never mind:  His contract as a GEICO character was terminated, and the company removed Ermey’s commercial from their official YouTube channel. He later told interviewers that he had been blacklisted by Hollywood, and that he never had major film offer after he criticized Obama.

Observations:

a) I wonder when fair, decent, ethical Americans who believe in freedom of thought and expression will become sufficiently alarmed about progressives and Democrats using blacklists and boycotts  to enforce ideological conformity. This increasingly totalitarian end of the political spectrum needs to be informed that its ethics alarms are seriously malfunctioning.

b) Actors identified with products and companies cannot complain when they lose those jobs after making divisive political comments. If Ermey wanted to do commercials for anyone other than the NRA, his comments about Obama were just plain stupid.

c) As an actor in films, however, Ermey played villains and parodies of military characters.  His political views in those contexts should have been irrelevant, and certainly wouldn’t harm receipts for movies he was in. If he really was blacklisted, it was an act of punishment for refusing to accept the Hollywood community’s lockstep worship of a weak and divisive President.

d) In contrast, recall this public rant from actor Robert DeNiro in January regarding the current President of the United States:

“This fucking idiot is the President. It’s The Emperor’s New Clothes – the guy is a fucking fool. The publication of the Pentagon Papers was a proud moment for American journalism. The Times and the Post challenged the government over critical First Amendment issues. And the press prevailed. Our government today, with the propping-up of our baby-in-chief – the jerkoff-in-chief I call him – has put the press under siege, trying to discredit it through outrageous attacks and lies.’

I don’t think Bobby has lost any roles over this. To be fair, if there is a place where The King’s Pass, aka “The Star Syndrome,” rules supreme, it’s Hollywood. A major star like DeNiro obviously has more leeway than a narrow-range character actor like Ermey, and Ermey had to know that. Still, the double standard is striking. Continue reading

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Morning Ethics Warm-Up, 3/31/2018: The Baseball-Trained Rifleman, The Hockey Hero Accountant, And Some Other Stuff That’s Just Annoying…

Good morning!

1. “The Rifleman” and “Fix the problem.” I recently was interviewed by a graduate student in organizational leadership and ethics. One thing we discussed was how popular culture in America once dedicated itself to teaching ethical values and ethics problem-solving, especially in shows aimed at young audiences. This is not so true any more; indeed, popular culture models unethical conduct at least as often today.

I told my interviewer about recently watching an episode of “The Rifleman,” the early ’60s TV Western about a single father raising his young son while being called upon to use his skill with a rifle to fight for civilization in the harsh frontier.  In the episode, hero Lucas McCain (played by the under-rated Chuck Connors) had to deal with an old friend, now an infamous outlaw, who had come to town. (The ethical conflict between personal loyalty and an individual’s  duty to society was a frequent theme in Westerns.) Lucas was a part-time deputy, and at the climax of the episode, his friend-gone-bad is prepared to ride out of town to escape arrest for his latest crime. Lucas tells him not to leave, and that if he tries to escape, Lucas will have to let his custom-made rifle settle the matter, as usual. (Peace-loving Lucas somehow managed to kill over a hundred men during the run of the series.)  Smirking, his friend (Richard Anderson, later known as the genius behind “The Six Million Dollar Man”), says that he knows his old friend is bluffing. For Lucas owes him a lifetime debt: he once saved “The Rifleman’s” life.  You’re a good man and a fair man, the villain says. “You won’t shoot me. I know you.” Then he mounts his horse , and with a smiling glance back at “The Rifleman,” who is seemingly paralyzed by the ethical conflict, starts to depart. Now his back is all Lucas has to shoot at, doubling the dilemma.  You never shoot a man in the back, an ethical principle that the two officers who killed Stephon Clark somehow missed. We see McCain look at his deadly rifle, then again at the receding horseman. Then, suddenly, he hurls his rifle, knocking his friend off his horse. The stunned man is arrested by the sheriff, and says, lamely, as he’s led away. “I knew you wouldn’t shoot me.”

I love this episode. It teaches that we have to seek the best solution available when we face ethics conflicts, and that this often requires rejecting the binary option presented to us, and finding a way to fix the problem.

Of course, it helped that Chuck Connors used to play for the Dodgers, and could hurl that rifle with the accuracy of Sandy Koufax.

2. Here we go again! Now that anti-gun hysteria is again “in,” thanks to the cynical use of some Parkland students to carry the anti-Second Amendment message without having to accept the accountability adults do when they make ignorant, dishonest, and illogical arguments in public, teachers and school administrators are back to chilling free speech and expression by abusing their students with absurd “no-tolerance” enforcement. At North Carolina’s Roseboro-Salemburg Middle School, for example, a 13-year-old boy in the seventh grade was suspended for two days for drawing  a stick figure holding a gun.

I drew pictures like this—well, I was little better at it—well into my teens. It’s a picture. It isn’t a threat. It isn’t anything sinister, except to hysterics and fanatics without a sense of perspective or proportion—you know, the kind of people who shouldn’t be trusted to mold young minds. “Due to everything happening in the nation, we’re just being extra vigilant about all issues of safety,” said Sampson County Schools’ Superintendent Eric Bracy, an idiot. How does punishing a boy for a drawing make anyone safer? It makes all of us less safe, by pushing  us one step closer to government censorship of speech and thought.

Then we have Zach Cassidento, a high school senior at Amity High Regional School in Connecticut who was suspended and arrestedarrested!—for posting a picture of his birthday gift, an Airsoft gun, on Snapchat. He was not charged, but was suspended for a day from school….for posting, outside of school, on his personal account, the picture of an entirely legal toy gun (It shoots plastic pellets: my son has several of them).

The people who do this kind of thing to children in violation of their rights as Americans are the same people who cheer on David Hogg while signing factually and legally ridiculous petitions. They should not be permitted to teach, and this kind of conduct ought to be punished.

Where is the ACLU? For the organization not to attack these abuses is an abdication of the organization’s mission. Continue reading

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Ethics Quiz: Bill Cosby’s Bias Argument

As Bill Cosby’s latest trial gets underway, “the Cos” and his lawyers contend that the presiding judge should recuse himself because the judge’s wife is an advocate for sexual assault victims. Judge Steven O’Neill’s wife, Deborah O’Neill, is a social worker on a University of Pennsylvania special staff that advocates for students who are alleged victims of sexual assault. According to the motion for the judge to recuse, she has donated money to a victims advocacy group that plans an anti-Cosby rally outside the courthouse during Cosby’s trial.

 

Your Ethics Alarms Ethics Quiz of the Day:

Should the political activities, public statements or occupation of a spouse be considered a sufficient conflict of interest to mandate judge’s recusal?

Continue reading

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