conflicts of interest

“Miracle On 34th Street,”An Ethics Companion, Continued…Chapter 3: Kris Joins The Macy’s Family! [REVISED and CORRECTED!]

/ Jack Marshall / 2 Comments

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

 Kris takes Santa’s throne

Kris’s rave reviews as Santa in the Thanksgiving Day Parade are so good,  Doris hires him play Santa at Macy’s flagship New York City store on 34th Street. He agrees, which is strange, when you think about how busy he should be at this time of year, supervising the elves and all. If he really is Santa, or even if he thinks he is, taking the job in New York is irresponsible.

His supervisor gives him a list of toys to “push”—toys that are overstocked. “Now, you’ll find that a great many children will be undecided as to what they want for Christmas. When that happens, you suggest one of these items,” Kris is told. “You understand?”

Kris says he understands, but later makes it clear in his comments to a co-worker, that he has no intention of “pushing” the merchandise.:

“Imagine…making a child take something it doesn’t want…just because he bought too many of the wrong toys.That’s what I’ve been fighting against for years!”

That being the case, there is exactly one thing Kris needs to do. He needs to quit. What he cannot do, and must not do, and has a clear ethical obligation not to do, is to accept a job when he has no intention of doing what the job requires. This is a sales job. If Kris doesn’t want to sell, then he will be accepting a pay check under false pretenses. This isn’t noble conduct, as the film would have you believe. It’s unethical conduct. It’s wrong.

Kris needs to put himself on his own naughty list. Continue reading →

Sunday Before Christmas Ethics Ornaments, 12/22/19: Googling Ethics, “Cats,” Goldman Sachs, De Niro, Trump Derangement

/ Jack Marshall / 13 Comments

Here’s hoping that the the next three days rescue the Spirit of Christmas…

…because the last few weeks have been a downer, man.

1. Googling ethics:  Phillip Galanes, at Social Q’s was consulted by a woman who had bad vibes about her girlfriend’s new love, so she googled him, and found out, as she suspected, that he had some serious red flags in his past. She told her friend, who had discovered the bad news herself, but who was hurt and angry that the inquirer did a background check on her boyfriend. “Was I wrong?” she asked. In his answer, Gallanes implies that she was, although “everybody does it.” I’d like a nice, succinct, substantive explanation of by what ethical theory it can ever be wrong to access publicly available information about anyone. This isn’t an issue of privacy, because the information isn’t private. There was nothing wrong with the inquirer’s motives, because she was concerned about her friend.

I’d call this the Ick Factor at work. It seems unethical because the fact that anyone can check our lives out online is creepy. The research itself, however, is ethically neutral. The ethics comes in with how the information is used.

2. I guess I have to mention “Cats”…since it is getting the most spectacular negative and cruel reviews since “Showgirls,” and maybe before that. “Exorcist II, The Heretic” perhaps. Oddly, the usually hyper-critical New York Times is not one of the worst defilers, but here was what the reviewer really found objectionable :

“It’s too bad that no one seems to have thought through the semiotics of Victoria’s chalky white cat face, given that Hayward is of mixed race and that the heavy is Idris Elba’s predatory Macavity. Elba seems to be having a fine time, but come on!”

Ah! The old “mixed-race actress in whiteface being menaced by a black actor playing a cat” racist imagery!

I can’t wait for them to write down these rules. Continue reading →

In The Baseball Dead Of Winter, An Old And Unresolved Ethics Problem Glows Bright

/ Jack Marshall / 14 Comments

From left to right: MLB, players, and the union.

…as Major League Baseball ignores it, as usual.

Ethics alarms test: Scott Boras, lawyer and player agent, represents two Washington Nationals free agents in their prime. One is Stephen Strasburg, one of the best and most sought after starting pitchers in the game. He was seeking, on the advice of his agent, a long-term contract of more than 30 million dollars a year. Another is Anthony Rendon, third-baseman, and the Nationals’ best player in 2019, their championship year. He also is seeking a salary of at least 30 million per year, over many years. He is a fan favorite in Washington, D.C., and obviously enjoys playing there. Contrary to popular belief, however, Major League baseball teams do not have endless supplies of money, though they have a lot. Mike Rizzo, Washington Nationals general manager, told the sports media and Washington fans that the team could not afford to sign both Strasberg and Rendon at the rates they were demanding and the marketplace dictated.

Is there a problem, and if so, what is it?

You shouldn’t need much time to answer, but then again, thousands of baseball sportswriters and the entire baseball establishment havn’t figured this out over many years, do I’ll give you a “Jeopardy!” period of reflection:

OK, contestants,what’s your answer? Continue reading →

End-Of-Week Ethics Inventory, 11/24/19: Really, Really Bad Mood Edition

/ Jack Marshall / 44 Comments

Worst…Ethics Alarms…Week…Ever!

Or so it seems, anyway. Have people already started ignoring life for Thanksgiving? Or am I being punished for not being able to squeeze enough posts out while driving, flying, typing in crowds and moving in and out of various abodes while trying to work? To make it worse, there was a lot going on that required some time and solitude to research and analyze, and I just didn’t have it. I also managed to make myself sick. Tuesday and Wednesday had the worst non-holiday mid-week traffic of 2019, and Saturday had the lowest number of visits for that day in three years.

Well, as Andy Kinkaid, my late, cynic-philosopher college roommate, a ruined Vietnam veteran,  used to respond several times each day to every argument, disappointment, tragedy, catastrophe, and piece of bad news as he smiled and retreated to his darkened room to get stoned, “Fuck it, right?“

1. Apparently there is a copyright battle over the obnoxious catch-phrase “OK, Boomer!,” the viral dismissive insult being hurled at Baby Boomers who dare to question the wisdom, passion, and hive-mind beliefs of Gen. Z-ers and Millenials. It looks like all such efforts to “own” the phrase are doomed, because it has rapidly become so ubiquitous as a put-down so quickly that nobody can prove it originated with them.

Has it occurred to any of the smug little snots brushing aside their elders that this is nothing but a personal ad hominem attack without substance, no more fair or valid, and just as rude and bigoted, as “Shut up, bitch,” “Go home to your mother, Pee-Wee,” or “Get a job, Pedro”? As a Baby Boomer, I think we ought to agree on a standard retort to “OK, Boomer” of equal substance and wit, and I hereby nominate “Keep flailing, Dumb-Ass!”

2. Speaking of Millennials, a New York Times social columnist informs me that they have decreed that on-line the term “OK” or “Okay” is now considered rude, and the proper term is “k-k,” which sound to me like a Klan chapter short of members, or someone with a stutter. Just because you want to create ugly and pointless new conventions to metaphorically mark your cyber-territory doesn’t mean I have to assent.

And no, I never have and never will use LOL or LMAO. They’ll have to shoot me first. Continue reading →

High Noon Ethics Warm-Up, 11/12/2019: Addendum!

/ Jack Marshall / 18 Comments

  • I ran out of space and a few items came to my attention right after I posted, so here are additions to the Warm-Up:

5. The obvious weakness of the current field of Democratic challengers has revived the Presidential hopes of several wannabe who—correctly—judged themselves unqualified and unlikely to be elected President in 2020. The latest to say “Oh,hell,  why not?” is wan Obama-imitator Deval Patrick, the former Massachusetts governor.

In that other party, ridiculous Mark Sanford suspended his Presidential bid, making the much anticipated Sanford-William Weld debates a lost hope.

Has the United States ever had such a dearth of qualified and trustworthy political leaders, or two political parties so inept at meeting their obligations to the republic? I began re-watching the wonderful HBO miniseries “John Adams.” over the weekend, It was inspiring and depressing simultaneously. Continue reading →

Comments Of The Day: “Open Forum, Or ‘I Guess I Picked The Wrong Time To Start Driving All Over Virginia!’” (“Profession Of Journalism” Thread)

/ Jack Marshall / 2 Comments

Today we have a rare tag team Comment of the Day: JutGory raised the provocative ethics issue of what constitutes a profession and whether journalism qualifies, and Rich in Ct, who has been on fire of late, responded with a sharp analysis.

This was all especially propitious, since the I had a dispute with my legal ethics teaching partner during our (very well-received) “Crossfire”-style seminars last week on just this question. He maintains that it is a a myth to pretend that a profession like the the law is called such for any reason other than the fact lawyers engage in it for compensation. Well, he’s wrong. Professions are not merely occupations, but pursuits one undertakes for the good of society. That is why the hallmark of professionals is that they are trusted and trustworthy, and why their compensation is of secondary priority. The desire for profit undermines professionalism by creating conflicts of interest.

My answer to the question posed by JutGory is that journalism must be a profession, because the public must be able to trust journalists for journalism to benefit society. However presents day journalists are driven by motivations far removed from the public good: their personal political agendas, the pursuit of fame and power, and the love of money. It can be a professiona, and should be a profession, but as currently practiced, it isn’t a profession.

Here are JutGory’s and Rich in Ct.’s  Comments of the Day on the “profession of journalism” thread in the post, “Open Forum, Or ‘I Guess I Picked The Wrong Time To Start Driving All Over Virginia!’”

First, here’s JutGory…

Can journalism be a profession?

My profession, law, has a set of ethical rules. It is a club, and it is self-regulating. Is it self-regulating? Yeah. My state gets about 1000 complaints per year, and about 10 percent each year get disciplined. Every year, you get a handful of disbarments. Not overbearing but I know a lawyer who got a 60-day suspension for a “non-legal” infraction and basically threw in the towel. I can empathize. It is like being accused of a crime; it can be hard to deal with. And, you are held to standards.

The press? You can’t be de-pressed? Dis-presses? Unimpressed?

In a free society, with a free press, can you have a profession where there is no way to regulate its participants.

A shorter way to ask the question: can the press be a true profession if Dan Rather can’t be barred from the profession?

Similar question for teaching. The wrinkle with teaching: can a profession governed by labor unions really enforce ethical standards and discipline?

Rich in Ct’s response… Continue reading →

The ABA’s Guidance For Judges With Potentially Conflicting Relationships

/ Jack Marshall / 5 Comments

“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.”
 Continue reading →

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

/ Jack Marshall / 7 Comments

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

/ Jack Marshall / 45 Comments

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

/ Jack Marshall / 7 Comments

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 →