I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,” and the lawyer shrugs and says, “Whatever you say! It’s your contract”?
WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages. 22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”
The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it. Continue reading
It’s very thoughtful of Ethics Alarms readers to provide such high level content so I have a chance of completing the 2015 Ethics Alarms Awards before March. I am awash in potential Comments of the Day all of a sudden, and this is the first of nesting COTDs, both inspired by the recent post on the surrogate with gestating triplets who is blocking the attempt of the biological father to abort Eenie, Meenie, or Miney, he doesn’t care which.
New commenter J. Jonah Jameson—presumably not really Peter Parker’s employer—submitted a helpful personal story that puts much of that drama in perspective. Here is his Comment of the Day on the post, The Strange Case Of The Unwanted Triplet:
I am the biological father of a child born of a surrogate mother. I’m sure ResurrectedToday is correct that the father fully knew that there was a chance of triplets. But the surrogate knew the same thing, and I’m almost 100% certain that she agreed in advance that she would have an abortion if the father requested it. (If not, then there are a lot of lawyers, doctors and other professionals who did not do their job.) Either she changed her mind, or she never really intended to abide by that agreement.
I can say a few things about my own experience:
1. There were a lot of people involved in the process: me, the surrogate, the donor, the three lawyers representing us, the doctors, and the psychologists and social workers at the lawyers’ and doctors’ offices. In almost every conversation that I had with any of these people, the subject of multiple births was discussed. Everybody involved understood clearly that there was a very high possibility of twins, triplets or even more.
I try to keep my legal ethics seminars up-to-the-minute, so while preparing for yesterday’s session with the Appellate Section of the Indiana Bar, I came across a bunch of entertaining stories in which the ethics were a lot clearer than the law, or vice-versa. All of them could and perhaps should sustain separate posts; indeed, I could probably devote the blog entirely to such cases.
Here are my four favorites from the past week’s legal news, involving a mother-son lawsuit, a brazenly unethical attorney general, a college scoreboard named after a crook, and police officer’s sense of humor: Continue reading
Filed under Business & Commercial, Character, Ethics Alarms Award Nominee, Ethics Dunces, Family, Finance, Government & Politics, Humor and Satire, Journalism & Media, Law & Law Enforcement, Marketing and Advertising, Professions, Rights, Sports, U.S. Society
The almost lawyer, learning about the justice system…
Mauricio Celis, 42,was expelled from Northwestern Law School, just before he was due to graduate, for not telling the school when he applied that he was a former felon in Texas, convicted there for falsely holding himself out as a lawyer and also for impersonating a police officer. Northwestern confirmed that it never asked him to disclose any criminal history, but argued that Celis should have known that his criminal record was material.
The school didn’t check on his background; it didn’t even google him. If it had, it would have learned that Celis was infamous in Texas, and called “The Great Pretender.” A prosecutor called him “the biggest con man in the history of Nueces County.” He certainly was audacious, opening law offices in multiple cities, raking in fees, using his success as a fake lawyer to raise money for Democrats. Compared to his scam, Northwestern was timid. It just took his money, $76,000, and then expelled him without giving him a diploma.
Your strange Ethics Alarms Ethics Quiz:
Was it ethical for Northwestern to expel Celis?
*The reference in the title is to the “Naked Teacher Principle,” discussed often here. In brief, it holds that a teachers whose nude (or in some cases, almost nude or sexually provocative) photographs become publicly available cannot object when they are terminated as unfit to teach.
Teachers employed in the Catholic schools in the Cincinnati archdiocese are being asked to sign a new restrictive contract that denies them the option of engaging in acts outside the classroom that are in opposition to Catholic teachings. It expressly forbids a “homosexual lifestyle” as well as any public support of homosexuality. It forbids abortions or advocacy of abortion rights, surrogacy, and in vitro fertilization. A teacher who signs the agreement agrees not to live with a partner as a couple outside marriage, engage in sexual activity out-of-wedlock, and not to endorse either practice.
New York Times columnist Frank Bruni is offended by this, and feels it is unethical. “Does a Catholic-school teacher relinquish the basic privileges of citizenship?” he asks, pointing to political engagement and free speech. Continue reading
“We made Mr. Wolf an offer he couldn’t refuse. Oddly, he refused it.”
What is it worth to a baseball team to save a million bucks? Apparently it’s worth being shunned by future players for being sleazy and dishonest.
Oh, it was all legal, don’t get me wrong. The Seattle Mariners, who, it should be noted, recently signed second-baseman Robinson Cano to a ten year contract averaging 24 million dollars a season, inked a deal with veteran pitcher Randy Wolf that guaranteed him a paltry million dollars if he made the team’s roster based on his performance in Spring Training. Sure enough,Wolf pitched well and not only made the team, but was told that he would be in the Mariners’ starting rotation.
There was a catch, however. Wolf was told that his being officially named to the team’s 2014 25 man roster to start the season—that’s next week, baseball fans—was contingent on him signing a legal document known as a 45-day advanced-consent release form. This would allow the Mariners to release or demote Wolf after the first 45 days of the regular season and be obligated to only pay him a pro-rated portion of his million dollar salary, rather than the entire one million dollars his original deal guaranteed. In other words, “Gotcha!” The perfect Catch 22. “Yes, you are guaranteed a million dollars, Mister Wolf, if you make the team, and you made the team. We keep our promises. We want you on the team. But if you don’t waive that guarantee, we won’t let you make the team.”