The Left’s Assault On The Rule Of Law And The Legal Profession’s Cowardice, Or “Nice Little Firm You Have Here—Be A Shame If Something Were To Happen To It!”

unbalanced-justice-scale

One of the many benefits of the Trump Administration and the concomitant 2016 Post-Election Ethics Train Wreck, one theory goes, is that it has exposed the ethical rot and lack of integrity of so many previously admired and trusted professions.

Among those that have thoroughly disgraced themselves in their rush to enamor themselves before their progressive, President Trump- loathing colleagues and friends—you know, the good people—have been journalists (of course), academics, psychiatrists, doctors, epidemiologists, ethicists, historians, teachers, judges and lawyers. Thus it shouldn’t have been a surprise (though it was to me, as always an optimistic sap) when efforts to prevent the Trump campaign from having the best possible legal advocates as it pursues challenges to the 2020 election results would bear ugly fruit.

The NeverTrump Lincoln Project joined the anti-Trump Democrats in targeting the law firms hired by the campaign. Election law specialists Porter, Wright, Morris & Arthur and its lawyers were threatened with professional ruin. The theory went that daring to support the President of the United States constitutes a “dangerous attack on our democracy.” The firm, showing a dearth of legal ethics and integrity withdrew, whining that the assault on its reputation created a conflict of interest, was disrupting the firm, and had prompted at least one lawyer’s resignation. Since then other firms have dropped the campaign as a client, and the reason was fear—of losing clients, of being shunned in the legal community, of losing money. Mostly the latter.

This is only the latest progression in the decay of basic law firm ethics that began during the Obama administration. The reason is—broken record here—bias.

Continue reading

Without Courage, Integrity And Professionalism In The Legal Profession, The Rule Of Law Hasn’t A Prayer: The House of Representatives v. Burwell Saga

" Nice law firm you got here. Too bad if something were to happen to it..."

” Nice law firm you got here. Too bad if something were to happen to it…”

As I explained  here and here in 2015, the process of judicially determining whether the Defense of Marriage Act was constitutional or not was unethically sabotaged by  threats to and improper lobbying of the law firm that had agreed to defend it. The Justice Department and the President had refused to do their sworn duty to uphold the laws of the United States, and same-sex marriage activists pressured the biggest client of the firm that had accepted the case to pass the pressure along. It worked. The firm dropped the case, precipitating a resignation by the partner handling it and this ringing assertion of traditional legal ethics:

“…[D]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

This was, we are learning, not an anomaly. On the Volokh Conspiracy, law professor Josh Blackmon relates how the same strategy of applying of unethical political pressure, and the unprofessional capitulation of major law firms to it, nearly made a legitimate challenge to illegal payments to insurers under Obamacare impossible. He explains in part: Continue reading

The Legal Profession’s Failure Of Professionalism Regarding Gay Marriage

blind_justice

Charles Green helpfully sent me the link to today’s New York Times piece documenting how…

“the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.”

“Am I right that something’s quite amiss here?” he asks. Indeed he is, and I’ve touched on it before.

There are several factors at work here, but the result is deplorable, and indictment of the corrupt values of the legal profession. One of the factors is bias, and it is a bias that the lawyers themselves are either unaware of,  or are unwilling to avoid its effects as their professional codes of ethics require.

The majority of high-powered lawyers hail from urban centers where liberal culture flourishes among the wealthy, the powerful and the influential. These are cosmopolitan lawyers, sophisticated and urbane, who have gay colleagues, gay friends and gay children. They are less likely to be religious, and more likely to have contempt for those who are. Combine with them the legal academics who drive consensus on legal ethics matters—like most academics, they have marinated in the extreme leftist attitudes of U.S. academia—and it becomes clear why, as Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford, tells the Times, “The level of sheer desire to crush dissent is pretty unprecedented.”

I noticed this in 2011, when the legal ethicists I follow, know and debate with decreed virtually en masse that a judge who was not only gay himself but in a long term domestic relationship with his partner had no ethical obligation to recuse himself before he issued the decision on the constitutionality of California’s anti-same sex marriage Proposition 8. Nor did they feel he was ethically obligated to disclose his situation before ruling. I wrote: Continue reading

Instant Ethics Train Wreck: The Alabama Gay Marriage Stand-off

What does Dred Scott have to do with the Alabama gay marriage mess? Absolutely nothing.

What does Dred Scott have to do with the Alabama gay marriage mess? Absolutely nothing.

This summer, the Supreme Court will again take up the issue of the Constitutionality of state gay marriage bans, having left the question open (why, I don’t know) after striking down the Defense of Marriage Act in 2013. Since that ruling, the states have been busy little bees, some passing laws banning same-sex marriage, some doing the opposite, then fighting out multiple appeals at various levels of the judicial system. Three things are certain: the cultural and legal acceptance of same-sex marriage looks unstoppable; all states need to agree on what a legal marriage is; and some faith-based same-sex marriage opponents will not give in until the last dog dies.

Beginning at the end of last week, a messy situation in Alabama involving all of these factors burst into a full-fledged ethics train wreck. The links in this post will let you immerse yourself in the mess if you choose: I’m going to try to be clear. Here is what has transpired so far:

1) A federal judge, District Court Judge Callie V. Granade,  struck down the state’s ban  on same-sex marriages in January and said that Alabama could start issuing licenses last week unless the U.S. Supreme Court stepped in and stayed her order. A stay was immediately requested by the Alabama Attorney General, who properly defended the state’s law.

2.) The 11th Circuit Court of Appeals refused to step in and stop her order from going into effect.

3) The U.S. Supreme Court also refused the stay request, allowing marriages to proceed in Alabama.

4) Roy Moore, chief justice of the Alabama Supreme Court, reminded everyone that probate judges report to him, not the federal judge and not the Attorney General, and do not have to issue marriage licenses to gay couples until he tells them to. He told them not to.

5) Some Alabama probate judges followed Moore, and some went ahead and issued the licenses. Mass confusion reigned.

6) Meanwhile, the refusal of the U.S. Supreme Court to issue a stay pending its ruling on state same-sex marriage laws later this year was widely interpreted as tantamount to SCOTUS deciding the case before it was even argued.

7) Justice Clarence Thomas, in a dissent from the  majority’s rejection of the stay (we don’t know what the vote break was), argued that “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our . . . responsibilities.”

8) Justice Ruth Bader Ginsberg, meanwhile, appeared to endorse gay marriage in an interview.

9) Attempting to break the impasse, U.S. District Judge Callie V.S. Granade ordered Mobile County, Alabama to start issuing marriage licenses to same-sex couples, paving the way for resistant officials across the state to follow suit, in a decision stating that the state’s ban on same-sex marriage had been struck down and that ­Mobile County’s probate judge had to adhere to that decision.

10) Chief Justice Moore remains unmoved, but now most of the probate judges are following the federal order.

Got that?

Good, now you can explain it to me.

What a mess.

Here are the ethics verdicts on the participants so far: Continue reading

Integrity And Future “Madam President”

Are you excited about having Hillary as run for President yet?

hillary-clinton1From Mediaite:

During a contentious interview on NPR’s Fresh Air, Clinton scolded host Terry Gross for persistently asking questions about the former Secretary of State’s “evolution” on the issue of gay marriage….Clinton publicly endorsed same-sex marriage only last year, leading many to surmise that she either withheld her true feelings on the issue all along, or had simply come around to the voting public’s increasing support for the issue. On Thursday morning, Gross attempted to understand Clinton’s change of heart, provoking a testy response.fter repeated questioning and several defensive responses, Gross told her interviewee: “I’m just trying to clarify so I can understand.”

“No, I don’t think you are trying to clarify,” Clinton fired back. “I think you’re trying to say I used to be opposed and now I’m in favor and I did it for political reasons, and that’s just flat wrong.”

She continued: “So let me just state what I feel like you are implying and repudiate it: I have a strong record, I have a great commitment to this issue, and I am proud of what I’ve done and the progress we’re making.“

What could this possibly mean? What is Clinton repudiating? That she opposed gay marriage until last year? That she said she opposed gay marriage? What is she proud of? That she only changed her mind when it was politically expedient? That she came to the conclusion that gay marriage was a human right after lots of other non-gay American—like me—had been making the point for years? Continue reading

Unethical Quote of the Week: Senate Majority Leader Harry Reid

“The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd.”

—Senate Majority Leader Harry Reid, after calling Wednesday’s Supreme Court ruling striking down the Defense of Marriage Act “a great, historic day for equality in America.” Reid voted for the law when it was overwhelmingly passed by the U.S. Senate, back when treating gays like second-class citizens was popular.

Harry Reid, embracing absurdity when it is politically expedient...

Harry Reid, embracing absurdity when it is politically expedient…

It’s hard to say which of the legislative lions prowling the cloak rooms of Capital Hill are more loathsome—Republican Mich McConnell, Nancy Pelosi, or Harry Reid. It’s easy to decide which is more shamelessly cynical and hypocritical, however. That would be Harry Reid.

If he “always” thought that DOMA was “absurd,” why did he vote for it? Are we to take from this that he not only is willing to vote for absurd measures (he has voted for many), but also votes for measures when he believes they are absurd? Or does he just say whatever he thinks will sound good to the low-information, knee-jerk progressives who have a memory of about two weeks (if that) regarding any issue, and possess the naïve belief, also absurd, that only Republicans lie to them? Continue reading

Ethics Quiz: The Hypocrite and the Hecklers

GLAAD precedent: Emperor Hirohito reads the announcement of his Nobel Peace Prize for agreeing to end World War II...

GLAAD’s  precedent: Emperor Hirohito reads the announcement of his Nobel Peace Prize for agreeing to end World War II…

Former President Bill Clinton received the first Advocate for Change award at the GLAAD Awards in Los Angeles over the weekend. Clinton, who uniquely appears to be immune from ever being held accountable for his mistakes and misconduct, was honored by the LBGT advocacy organization for opposing a ban on same sex marriage in North Carolina, and supporting efforts to legalize same sex marriage in New York. In his remarks, Clinton attacked the Defense of Marriage Act (DOMA), which prohibits legally married same sex couples from receiving federal benefits and protections, saying,

“I want to keep working on this until not only DOMA is no longer the law of the land, but until all people, no matter where they live, can marry the people they love. I believe you will win the DOMA fight, and I think you will win the Constitutional right to marry. If not tomorrow, then the next day or the next day.”

What Clinton did not say is that he is 100% responsible for the fact that DOMA is the law of the land, as he is the one who signed it into law in 1996. Nobody held a gun to his head: it was a popular bill in its day, and Clinton—surprise!—was following the polls. He also said at the time that he believed that the law was just.

This inconsistency—GLAAD honoring Clinton with an award for opposing a law he is responsible for inflicting on the gay and lesbian community, and his having the brass to accept it, are the stuff of Onion stories—prompted some at the event to heckle Clinton, shouting, “You signed it!”  I am tempted to cheer this development, but must pause—I object to heckling on civility and fairness grounds. One can rebut speech, but one shouldn’t seek to obstruct it. Yet there are exceptions to every rule, even in ethics. Thus your Ethics Alarms Ethics Quiz for today is this query:

Is it ethical to heckle Bill Clinton under these circumstances? Continue reading

The Part of Legal Ethics The Public Will Never, Ever Understand

Sen. Brown has the pulse of the public on this issue, and like the public, he’s ignorant.

Especially since politicians like Scott Brown keep making sure that they misunderstand.

In this week’s Massachusetts Senate debate between Sen. Scott Brown and Democratic challenger Elizabeth Warren, Brown slammed the anti-corporate crusader, the self-styled intellectual catalyst for the Occupy Movement, for accepting $250,000 from the Travelers insurance company to help the company deny claims for asbestos poisoning. He said:

“You chose to side with one of the biggest corporations in the United States: Travelers Insurance. When you worked to prohibit people who got asbestos poisoning, and I hope all the asbestos union workers are watching right now. She denied, she helped Travelers deny those benefits for asbestos poisoning, made over $250,000 in an effort to protect big corporations….”

Brown is accurately stating the way most people look at lawyers and what they do. But he is absolutely mistaken. His characterization of what Warren did is incorrect, and his inference of hypocrisy is unfair.  It is all the worse because he is a lawyer himself. If Senator Brown, as a lawyer, doesn’t understand what’s wrong with his accusation, he should. If he does know, then he is undercutting his own profession for political gain. [NOTE: The original version of the post incorrectly stated that Brown was not a lawyer. My thanks to Mass lawyer James Flood III for flagging the error.] Continue reading

The Provocative T-Shirt Problem

Dress codes+grievance-mongers+freedom to be rude...oh, it's hopeless.

An ethical dilemma occurs when a clear ethical principle clashes with a strong non-ethical consideration. An ethical conflict occurs when multiple ethical principles suggest diametrically opposed results. The question of what is ethical conduct when it comes to wearing apparel bearing controversial messages has the elements of both a dilemma and a conflict.

                                                                                Welcome to Dollywood!

A same-sex couple visiting Dollywood Splash Country with friends and their children was told by a park gatekeeper that one of the women had to wear her T-shirt inside-out because its message—“Marriage is so gay”— “might be objectionable” to some visitors at the “family-friendly” park.

   <Sigh.> Continue reading

Ethics Hero: Attorney Paul Clement

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