contracts

Morning Ethics Warm-Up, 3/17/2018: Mockingbirds, Headlines, And Reasonable Doubt

/ Jack Marshall / 25 Comments

Good Morning, Scout!

1 Assorted blog stuff. I’m going to have to fly to Boston next month for the hearing on my motion to dismiss the specious defamation suit against me by an Ethics Alarms  commenter to whom my responses were no more defamatory than what I have said to many of you when provoked…Every now and then some blog or social media participant with a huge following links to an old post here, and I am swamped with visits from a lot of individuals with no serious interest in ethics. They almost never comment, and if they do, the comments typically don’t meet my posting standards. Still, they swell the traffic stats, and I’ll take ’em. In 2017 I had none of these fluky hit avalanches, after a 2016 that had several. This time, the post suddenly drawing interest is a 2014 essay about a letter written to director Terry Gilliam in 2005. You just never know…Expect a lot of Comments of the Day this weekend: I am way behind, and I’m sorry. Tough week.

2. Keep hope alive! Yesterday’s New York Times front page headline perfectly embodied the fake news-by-innuendo tactic that has marked the mainstream media’s efforts to pander to the “resistance.” The Special Prosecutor’s fishing expedition just subpoenaed the business records of the Trump organization relating to its dealings in Russia. Says the Times headline: “Investigation nears President.” Ooooh! Scary!

Hype, and unprofessional. This is the “He’s getting closer! And closer!” narrative the anti-Trump journalists have been flogging for a year. Yeah, I guess any time an investigation involves someone’s business it is “near” the owner, but why would that obvious fact justify a headline?  The reality is that Trump’s organization had business dealings in Russia (legal and unremarkable), the fact that Mueller is looking does not prove or suggest that those dealings had any connection to the campaign, and Mueller could have asked for these records a year ago. There is nothing ominous about the request from the President’s perspective at all, unless, as this whole fiasco has presumed from the moment Democrats seized on Wikileaks and fake Facebook news as the designated excuses for Hillary’s inexcusable defeat, there really was “collusion.”

That an investigation has been launched does not imply, suggest, or indicate wrongdoing. The news media’s reporting continues to suggest otherwise because they want the President to be guilty of something heinous. Imagine that: there are Americans who want their elected President to be proven guilty of wrongdoing.

3. To kill a “To Kill A Mockingbird.”  Harper Lee’s estate filed a complaint last week in federal court in Alabama, arguing that a Broadway bound stage adaptation of “To Kill A Mockingbird” by “The West Wing” creator and “A Few Good Men” writer Aaron Sorkin violates a contract, between Harper Lee and the producers that stipulates that the characters and plot must remain faithful to the spirit of the book. (I wrote about the complexities surrounding Atticus Finch’s character in a 2015 post.) Continue reading →

Comment Of The Day: “Morning Ethics Warm-Up, 3/6/ 2018: “Remember the Alamo” Edition” (#2: “The Option”))

/ Jack Marshall / 3 Comments

Commenter Zanshin returned to expand on his answer to the hypothetical I offered a Boy Scout troop based on one of my late, lamented professional theater company’s many dilemmas over the years. Here is the situation again…

The Option

Your professional theater company has limited funds, so it offers its actors an option. They may choose a flat fee for their roles, or get a percentage of the show’s profits, if there are any, on top of a much smaller base fee.

The company just completed an extremely profitable production, the biggest hit your theater has ever had. Nine of the show’s ten cast members chose the percentage of profits option, a gamble, because most of the shows lose money. One, the star, who you know could not afford to gamble, took the flat fee for the role. After the accounting for the production is complete, you realize that every member of the cast will make $1000 more than the star, because of the show’s profits.

Question 1: What do you do?

  1. Give him the extra $1000. It’s only fair.
  2. Pay him the flat fee. A deal’s a deal.

Question 2: You remount the production, and the exact same thing happens. The actor chooses the flat fee, the show is again a huge money-maker,,and the rest of the cast will make much more than him because they chose the percentage. Do you give him the extra amount again?

  1. No. Now he’s taking advantage of me.
  2. Yes. Nothing has changed.

You can read the initial responses here, and check the poll results.

And here is Zanshin’s Comment of the Day, on the post Morning Ethics Warm-Up, 3/6/ 2018: “Remember the Alamo” Edition:

Here are my reflections on this ethical (hypothetical) issue.

Question 1: Some personal background influencing my thinking: In the early years of my career I worked at a small company (about 40 employees). After having worked there for 2 years the owners sold the company, probably for a very good price, because they decided to give every employee about $ 200 for each year that he had worked with the company. Some of my colleagues worked with them for 15 years and more.

For me it would be a nice $ 400 but to my surprise I received $ 1.000 with a handwritten note which stated something like, “We’ll give you $600 extra because we are very pleased with your performance with us. Please do not discuss this with your colleagues.”

Back to the question.

I would go for a third option. First, Pay him the flat fee. A deal’s a deal.

But at the same time, give him in some personalized way, about $500 extra.With personalized I mean, fitting the situation. Why couldn’t he gamble with his reward? For instance, his car is broke, he needs it very bad for whatever reason. Offer to pay a part of the bill, etc.

Question 2: In my opinion the set-up of the first situation (question 1) was already tainted. Just as we expect of journalists that they don’t “interview people who are drunk, drugged, impaired, or not in a mentally or emotionally stable state.” one should also not ask an employee who you know could not afford to gamble to just do that, gamble with his income. Continue reading →

Sunday Morning Ethics Warm-Up, 3/11/2018: Baseball, Bannon, and Chaos

/ Jack Marshall / 30 Comments

Good Morning!

1 Great. Now I have to defend Steve Bannon. What greeted me this morning, as I surfed the Sunday news shows, Diogenes-like, searching for an honest journalist, but the sight of Steve Bannon in France, addressing the far-right National Front party yesterday and saying, speaking of the party’s effort to stem unrestrained immigration, particularly from Muslim countries,  “Let them call you racist. Let them call you xenophobes. Let them call you nativists. Wear it as a badge of honor.” On every channel, this was interpreted as if Bannon was endorsing racism, xenophobia and nativism. Naturally this was then reflected on Trump as part of the “Trump is a racist” Big Lie that Democrats and the news media push virtually every day.

Bannon has certainly made testaments at other times that raise a rebuttable presumption that he is a racist, but this wasn’t one of them, and the fact that so many journalists would intentionally represent the statement to the public as if it was tells us either that they can’t be trusted to analyze news events, or that they can be trusted to spin them to advance an anti-Trump narrative even when it defies language and reality. From NBC in a typical fake history description: “Bannon’s appearance in France was part of a European tour as he seeks an international platform for his closed-borders, anti-foreigner message that helped Donald Trump win the U.S. presidency.”  Trump did not advocate “closed borders,” nor was his platform “anti-foriegner.” That was the dishonest characterization of “America should enforce its immigration laws” by Democrats and the allied news media.

The words Bannon referenced have been part of the ongoing efforts to silence and demonize legitimate positions that oppose progressive cant, such as condemning rather than welcoming illegal immigration. What  Bannon was obviously saying —and I do mean obviously—is “Don’t let their reflex race-baiting and demonizing tactics discourage you or deter you. Calling sensible immigration laws “xenophobic” is a desperate lie. Calling it racist is a lie. Calling it nativist is a lie. Recognize that their tactics mean you are winning the argument. Be proud, not intimidated.”

The fact that many of those he was addressing may be racists, xenophobes and nativists doesn’t change the meaning of what Bannon said. The news media’s job is to report, not read minds.

I could imagine making the same kind of statement to a colleague who has been savaged as a racist on Facebook for opposing affirmative action, or attacked as a sexist for questioning #MeToo tactics, or called a “Trump apologist” (or a Bannon apologist) for demanding fair and honest treatment from the media for politicians regardless of who they are. “Be proud that they are stooping to name-calling. It means they can’t rebut you on the merits.”

Oh: Bannon also said, “History is on our side.” This really upset the “journalists,” because everyone knows that history is on their side. Continue reading →

The Other Alleged Collusion Scandal: Baseball’s Unemployed Free Agents

/ Jack Marshall / 45 Comments

Major management-labor troubles are brewing below the surface in Major League Baseball. With the 2018 Spring Training camps opening in a few days, over a hundred free agents remain unsigned, including many of the best players on the market. The Players Association is preparing to open a special training camp just for all the unsigned players, and shouting foul. They are alleging illegal collusion among the team owners to keep salaries down.

A lack of signings on this scale has never happened before, and agents and their player clients are increasingly hinting that dark forces are afoot. Fanning the flames are sportswriters and commentators, whose left-wing sympathies are only slightly less dominant than in the rest of the journalism field. The content on MLB’s own radio station on satellite radio has become an almost unbroken rant about how unfair it is that the players aren’t getting “what they have worked so hard for.” The theory appears to be that employees decide how much they are worth, and their self-serving assessments shouldn’t be challenged.

It is not that many of the free agents haven’t offers for their services on the table. It’s not that they don’t have multiple year contracts that will pay them millions of dollars on the table. They do, and thus  many of the unsigned players can substantially fix the bitter impasse by saying “yes.” Oddly, they are finding that public opinion is not substantially in their corner as they choose to bitch instead.

The poster boy for this controversy is, as luck would have it, a player who is sought by my very own Boston Red Sox. He is J.D. Martinez, a slugging outfielder just entering his thirties who had the best year of his life in 2017. Naturally, he wants a large, multi-year contract that will leave him set for life; this is his big and probably only shot. He also has the most aggressive, successful and, in my view, unethical of sports agents,  Scott Boras, who began the free agent auction season by announcing that J.D. would be seeking a contract worth 250 million dollars or more.

The problem is that not a lot of teams can afford such a contract, and those that can are, finally, wising up. Multiple year contracts have a way of blowing up in a team’s face. Analytics are now widely used to allow teams to make intelligent projections regarding just how much a player will add in value and wins. This year, most of the richest clubs are not hurting for home run hitters or outfielders, which leaves the Red Sox, who despite winning their division last year for the second year in a row didn’t hit as many homers in doing so as the spoiled Boston fans are used to, as the most obvious landing place for Martinez. Sure enough,  the team offered Martinez a five year deal reputed to be worth 125 million bucks. No other team has offered anything close, and it is unlikely that any team will. Boras and J.D. still say it’s not enough. They want a sixth year, and more cash. The Red Sox see no reason to bid against themselves, and have said, in essence., ‘There’s our offer. Take it or leave it.’  Somehow the baseball writers and the player see Boston as the villain in all this.

As George Will likes to say, “Well.” Continue reading →

The Slippery Slope: From Cyber-Zombie Peter Cushing To Hologram Zombie Maria Callas

/ Jack Marshall / 20 Comments

“We don’t have to pay her, and she can do a hundred shows a week!”

Thanks to the creation of a hologram clone, opera legend Maria Callas,  dead since 1977, appeared onstage at Lincoln Center last week. This is the continuation of a project that previously resurrected such departed stars as Tupac Shakur and Michael Jackson. Roy Orbison, who died in 1988, appeared after Callas. I wonder if he sang, “Pretty Hologram”?

I see where this is going, don’t you? We’re heading straight to “Looker,” the science fiction film directed and written by the late Michael Crichton (“Jurassic Park,”“Westworld,” Disclosure,” “ER,”—How I miss him!).  In that prescient 1981 movie, an evil  corporation transferred the images of living models to a computer program that could use then make the new CGI versions to do and say anything, and do so more effectively and attractively than the living models themselves, in television ads and even in live appearances via hologram. Then the company had the models killed.

In the New York Times review of singing Zombie Callas, the little matter of ethics never was mentioned.  Times critic Anthony Tomassini was not very critical, writing in part,

…[T]here is an amazing video of [Callas]  in Act II of Puccini’s “Tosca” in 1964. But no full operas by one of the greatest singing actresses in history; this hologram performance can seem to fill in a bit of that gap. The operatic voice, and the art form itself, can feel so fragile. What better way to represent that fragility — while also reviving it, in a kind of séance — than a hologram?…In introductory comments, [the director] said that the project has tried to present Callas with “restraint, subtlety and delicacy.” The notion of a singing hologram might seem incompatible with such a goal. Yet moments during Sunday’s preview were surprisingly affecting…The problem, as it always has been in opera fandom, will be if this specter from the past prevents a full appreciation of the vitality of opera and singing today. 

That’s the problem, is it? No, the problem is the same ethical problem I had with regenerating the deceased actor Peter Cushing in “Rogue One”: Continue reading →

The Unethical Fine Print Game

/ Jack Marshall / 17 Comments

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 →

UPDATE: Cyber-Zombie Peter Cushing And The Prospect Of Cyber-Zombie Carrie Fisher Remind Actors To Fight For Control Of Their Post-Mortem Acting Career

/ Jack Marshall / 11 Comments

cgi

It looks like I wasn’t the only one who felt that Peter Cushing was being abused by finding himself in “Rogue One” without his prior consent. Of the late actor being digitally inserted into a role he never agreed to play and deliver lines he never contracted to deliver, I wrote…

The emerging technology raises many ethical issues that didn’t have to be considered before, but when it comes to using a dead actor in a new role, the ethics verdict should be easy. It’s unethical, unless a performer  gives informed consent for his image to be used post mortem in this fashion. Presumably, the consent or the lack of it will be part of future negotiations and standard contracts. Actors who agree to have their images used as cyberslaves will also probably want to limit the uses of their names and images.

Cushing’s exploitation and the subsequent death of Carrie Fisher with widespread speculation that she would soon be added to the “Star Wars” franchise’s army of CGI clones have now sounded the alarm loudly. But apparently many actors were already aware of the threat, and taking affirmative action to control their destinies. Continue reading →

Comment of the Day (1), on Surrogate Ethics: “The Strange Case Of The Unwanted Triplet”

/ Jack Marshall / 3 Comments

surrogate-motherIt’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.

Continue reading →

Law vs. Ethics: A Snatched Bar Mitzvah Gift, A Leaky AG, An Embarrassing Scoreboard, and”OINK”

/ Jack Marshall / 19 Comments

Oink

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 →

Ethics Quiz: The Overly-Trusting Law School

/ Jack Marshall / 2 Comments
The almost lawyer, learning about the justice system...

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?

Continue reading →