conflicts of interest

Ethics Quote of the Week: Salon Columnist Joan Walsh

/ Jack Marshall / 4 Comments

Apparently I'm the pigeon in the lower left box.

“No one can be given credit for speaking from genuine moral or political conviction anymore; everyone can be dismissed or derided with a nod to their personal background. This may be the logical end of identity politics, where ultimately we’re each locked inside whatever little box we check, tiny caucuses of one, and common ground is impossible.”

—-Joan Walsh in Salon, bemoaning the accelerating tendency in public debate to discredit all beliefs, assertions and opinions, no matter how sincere or well-supported, as the product of bias and narrow self-interest.

Her comment could not be better timed, from my point of view. How tired I am of having readers demonstrate the trend Walsh describes by reflexively attributing every post I write as being proof of bias and a pre-existing agenda. If I criticize an atheist, I am a religious zealot; if I find fault with Obama, I must be a racist; if I point out that a production of “The Mikado” doesn’t really call for Sarah Palin to be beheaded, I’m a Left-winger. The problem is, unfortunately, that many prominent positions in the public square and blogosphere are driven by agendas and biases. It is so common that the concepts of independent judgement, an open mind and objectivity seem quaint and unrealistic.

I don’t know how to combat the problem, which is as serious as Walsh suggests. Recognizing it is a start.

Appearance of Impropriety II: “Here’s Approval For That Deal You Wanted…What? Sure I’d Like to Work for You! Wow, I Never Saw THAT Coming!”

/ Jack Marshall / 5 Comments

What's there to be suspicious about?

Meredith Attwell Baker, a member of the Federal Communications Commission who voted to approve Comcast’s takeover of NBC Universal in January, is leaving to  become senior vice president of government affairs for ….Comcast-owned NBC Universal.

Hey, why are you so suspicious, you jaded cynic, you? Comcast says it did not begin discussions with Baker about a possible job until after the takeover had her seal of approval. So it’s all on the up and up! Right? Right?

Okay, let’s say we believe that, since doing otherwise would amount to bribery. It doesn’t matter, and I don’t care. Taking a major job with  a company whose back you scratched with a favorable ruling as a government regulator looks terrible, promotes public distrust, erodes faith in regulatory structures, and is unethical. There are other jobs in the world for people with Baker’s credentials; she doesn’t have to take one that makes the U.S.  government’s business regulatory apparatus look like it’s fixed.

A condition of any regulator’s employment with a federal agency should be a pledge that he or she will never accept a paid position for a company that has benefited from the regulator’s rulings…not in a year, not in a decade, not ever.

Legal Ethics Train Wreck on “The Good Wife”

/ Jack Marshall / 2 Comments

Oh, Alicia, Alicia...what have they done to you?

The CBS legal drama “The Good Wife” continues to show the seamy side of big firm legal practice, with heroine Alicia Florrick’s firm, Lockhart, Gardner and Bond, its adversaries, and even Good Alicia herself violating legal ethics rules with abandon, and at an accelerating rate, based on recent episodes. There is nothing wrong with this as entertainment, as long as the Rules themselves are not being misrepresented (they aren’t), the misconduct isn’t being presented as ethical (it isn’t, though it is sometimes hard to tell), and viewers don’t get the idea that this is how most law firms behave. Unfortunately, like most legal shows, “The Good Wife” fails in this important realm. I work with many large law firms, and they are all very aware on the ethical lines, bold or fuzzy, that they must not cross, and take their obligations seriously.

The most recent episode of “The Good Wife,” entitled “Getting Off” included a full-fledged ethics train wreck sparked by the firm’s habitually unethical adversary, the fecund Patti Nyholm. In the middle of representing the defendant hospital in a lawsuit brought by a Lockhart, Gardner and Bond, Nyholm is fired by her firm and removed from the case. With a twinkle in her eye, she approaches none other than the Lockhart firm to represent her in a multi-million dollar lawsuit against her former firm for discrimination and wrongful termination, on the theory that it fired her because she was pregnant. Continue reading →

Comment of the Day: “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”

/ Jack Marshall / 8 Comments

The motion to vacate Judge Walker’s ruling on Proposition 8 has been filed, you can read it here. Since the original post, I have detected some cracks in the formerly near-united front of legal ethicists and journalists deriding Walker’s critics. Some of them are finally, grudgingly, admitting that the Judge might not have handled his potential conflict so well after all, and that the motion is not a frivolous, anti-gay outrage as they originally labelled it.  The most rickety of the rationalizations put forth on Walker’s behalf, advanced by some his most respected defenders, is that he had no obligation to reveal his own sexual orientation by disclosing his domestic arrangement because of its intimate and private nature. Yet the judge voluntarily disclosed it after his decision was in the books, raising a rebuttable presumption that his original silence was to avoid suggestions of conflict, not out of a desire for privacy.

First time commenter Jada adds her Comment of the Day to the discussion: Continue reading →

The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price

/ Jack Marshall / 38 Comments

"Oh, all right...as long as we like the decision."

Thanks to the Judge Walker controversy, now have proof that the best legal ethicists in the nation are human. I suppose that’s something.

My colleagues in the legal ethics field are arguing—decreeing, really— that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality. Coincidentally, they also really, really like his decision. But then, so do I. Continue reading →

Ethics Hero: Attorney Paul Clement

/ Jack Marshall / 23 Comments

John Adams defended the guys in red, and Paul Clement understands why.

Law firm King & Spalding announced Monday that it would no longer represent congressional Republicans regarding the constitutionality of the Defense of Marriage Act (DOMA), the controversial 1996 legislation that defines marriage as being only between a man and a woman.. In response, the firm’s chief appellate lawyer, Paul Clement, who was handling the case, resigned from the firm.

In February, the Obama administration announced that its Justice Department would refuse to defend DOMA in a number of lawsuits, an unusual, controversial and troubling decision. It doesn’t take a lot of imagination to conceive of other federal laws another administration might decide to render dead letters by non-defense despite being duly passed by the people’s representatives. A government has an obligation to duly execute its laws or repeal them. The policy of the Administration regarding DOMA raised issues of governmental integrity quite separate from the provisions of the law itself. Continue reading →

Judge Walker Was Wrong

/ Jack Marshall / 27 Comments

Now that we know about Bert, should Judge Ernie have recused himself?

Judge Vaughn Walker, the Federal District judge who a year ago ruled California’s Proposition 8, which banned same-sex marriages, unconstitutional, was wrong. No, not about the law, which is pretty clearly unconstitutional: his opinion was fair and well-reasoned, and is likely to be upheld on appeal. Walker was ethically wrong in his handling of the delicate issue of his own sexuality, which had raised a controversy about his objectivity and ability to be impartial.

Two weeks ago, following his retirement from the bench, Walker publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. This changes the analysis regarding the propriety of his ruling on Perry v. Schwarzenegger. Walker had long been rumored to be gay; supposedly “everybody” knew he was gay. My position, as well as that of many others considering the arguments of anti-gay marriage opponents that he should recuse himself, was that sexual orientation could not and should not create a presumption of bias, any more than gender, age, race or marital status. Continue reading →

Now We Know: 22.5% of Business Execs Don’t Know What Ethics Is

/ Jack Marshall / 3 Comments

The Potter Factor: is 20% too much?

David Sokol was widely believed to be the anointed successor to billionaire Warren Buffett at the helm of Berkshire Hathaway Inc. until he resigned unexpectedly, following shocking revelations about his personal stock trading. Clever Sokol! He purchased ten million dollars worth of shares in Lubrizol Corp., a chemical company, then persuaded his boss, Buffett, to acquire it. Buffett agreed, the purchase swelled the values of the stock, and Sokol then sold his shares at a hefty profit, about 3 million dollars.

Sokol lost his job over the transaction, which has tarnished Buffett’s reputation, but he got his money. He appears to have found a neat little loophole in the insider trading prohibitions, which make it illegal for an individual to profit from investments made with the assistance of information that is not generally known. If Sokol knew that Buffett was going to purchase Lurizol and bought the stock to profit from it, he could be headed to jail. Because he made the purchase before he and Buffett discussed the deal, however, he’s only heading to the bank. Galling as it is, most authorities agree that he broke no laws.  Continue reading →

Conflict of Interest, Lack of Integrity, Appearance of Impropriety…Other Than That, Gov. Walker, It’s A Great Hire!

/ Jack Marshall / 15 Comments

"Why, no, his father's financial support played absolutely no part in his landing this plum job...I mean, just LOOK at him! He blew the competition away!"

Politics involves deals and trade-offs, quid pro quos and mutual back-scratching. The trick is to be a politician without undermining the public trust, and using those deals to benefit, not harm, the public interest. That means that certain deals, even relatively typical ones, may be unforgivable under certain circumstances. A prime example: Wisconsin Gov. Scott Walker’s hiring of Brian Deschane to oversee environmental and regulatory matters and a large staff at the Wisconsin Department of Commerce. Continue reading →

Ethics Alarms Presents: The Top Ten Thought Fallacies That Undermine Our Ethics

/ Jack Marshall / 5 Comments

Don't expect this list from Dave. ESPECIALLY not from Dave...

Today I’m teaching two ethics seminars for The Washington Non-Profit Tax Conference in D.C. One is on accounting ethics, the other is for lawyers. One segment in the accountants’ program involves the sub-conscious and genetically programmed human tendencies that can interfere with our better judgment and perceptions, warping our ethics, and causing our ethics alarms to sound faintly, if at all. There are a lot of them:  I have a list of more than thirty, and it’s growing. Here are my current Top Ten to be especially alert to, in your own thinking, and for understanding the behavior of others: Continue reading →