depositions

Afternoon Ethics Jolt, 8/3/2018: A Lawyer Finds A New Way To Be Unethical, Verizon Makes Our Kids Obnoxious And Ignorant, And The Times Decides To Show Its Colors…

/ Jack Marshall / 22 Comments

 

Good…afternoon.

Yes, I couldn’t get this up before noon again. Mornings have been crazy lately. And no, I’m not at the beach…I just WISH I was at the beach.

1. A legal ethics “Kaboom!“ From the New York Times account of the litigation surrounding New York Yankee great Thurmon Munson’s death when his private plane crashed in 1979:

James Wiles, one of FlightSafety International’s lawyers at the time, still contends there was no culpability in Munson’s death on the part of either company. But a trial, he said, was just too risky…. Wiles, who was present for all the depositions…said that when Yogi Berra testified, he put a box of 24 baseballs in front of him and requested he sign them. Berra, who was a Yankees coach when Munson died, grudgingly obliged, but at one point asked if Wiles was authorized to make such a demand.

“It’s my deposition,” Wiles said he told Berra.

My head exploded after reading that. There is no rule I can find that declares such a blatant professional abuse unethical, unless it is the deceitful “It’s my deposition” response, which is literally true but falsely implies that the lawyer has the power to force a witness in a deposition to do something completely unrelated to the case for the lawyer’s personal benefit. Rule or no rule, this was incredibly unethical, and a perfect example of how lawyers will come up with ways to be unethical that they can’t be sanctioned for.

2. More on the New York Times’ new editor: Yesterday, I covered the astounding—but maybe not so astounding—appointment of far-left journalist Sarah Jeong as its technology editor despite a huge archive of explicitly racist and sexist tweets. The Times’ defiant explanation, a rationalization, really, stated:

“We hired Sarah Jeong because of the exceptional work she has done … her journalism and the fact that she is a young Asian woman have made her a subject of frequent online harassment. For a period of time she responded to that harassment by imitating the rhetoric of her harassers. She regrets it, and The Times does not condone it.”

Jeong’s statement was simply dishonest:

“I engaged in what I thought of at the time as counter-trolling. While it was intended as satire, I deeply regret that I mimicked the language of my harassers. These comments were not aimed at a general audience, because general audiences do not engage in harassment campaigns. I can understand how hurtful these posts are out of context, and would not do it again.”

The issue is not whether she will “do it again”—presumably even the Times wouldn’t stand for that, but whether her many racist outbursts online do not raise the rebuttable presumption that she is, in fact, a racist. Nothing in her statement tells us that she doesn’t believe such things as “white men are fucking bullshit,” only that she didn’t aim these comments at the general public.

I find it hard to believe that the even Times is so stupid and arrogant that it will dig in its metaphorical heels and refuse to admit its gross mistake. As Glenn Reynolds writes today, Continue reading →

Ethics Dunce: “Rolling Stone” Founder/Owner Jann Wenner

/ Jack Marshall / 5 Comments

rape-on-campus

 

I’ve been awarding Ethics Dunces for more than a decade now, and I’m beginning to find the title too generic. For example, Jann Wenner, in this instance, is a particularly repugnant Ethics Dunce. In short, the title’s too good for him.

Wenner’s iconic baby, Sixties relic Rolling Stone magazine, is a defendant in a  $7.5 million lawsuit brought by Nicole Eramo, a former Associate Dean of Students at the University of Virginia, who claims that the 2014 Rolling Stone article “A Rape on Campus” depicted her as a villain in the shocking story, which was ultimately shown to be about a gang rape that never happened. (Ethics Alarms covered this episode extensively, an ethics train wreck, here.) Testifying in video excerpts from his deposition, Wenner said his magazine was wrong to retract the  article, despite the fact that it was based on false allegations. In his videotaped testimony Wenner claimed that much of the material in the article was accurate

How Dan Rather of him! In a classic example of agenda-driven reporting, Rolling Stone writer Sabrina Rubin Erdely accepted the tale of a never-identified student called  “Jackie” who claimed to have been brutally raped at a party that never happened, at a misidentified fraternity, primarily by one student who was falsely accused. Because of the article, the  fraternity system at the University was temporarily shut down and permanently subjected to more stringent regulations. The male student body was tarred as teeming with sexual predators. The entire thesis of the article was based on the fabricated rape account. There is no ethical justification to continue to present such an article after its diseased heart must be removed. Continue reading →

Now THIS Is “Conduct Prejudicial To The Administration of Justice”!

/ Jack Marshall / 1 Comment
The late Joe Jamail, role model...

The late Joe Jamail, role model…

Almost all jurisdictions include in their lawyer ethics rule a catch-all provision, Rule 8.4 (d), that says that is is professional misconduct for a member of the bar to

(d) Engage in conduct that is prejudicial to the administration of justice;

Virginia is one state that omits this prohibition as too vague; D.C.’s version says that a lawyer must not engage in conduct that is seriously prejudicial, whatever that means. My position is that such a rule is necessary, since no set of rules can cover every situation, and lawyers, I have found, are especially creative in finding new ways to be unethical.

Texas Super Lawyer Joe Jamail (who died last December) established the proposition that a lawyer could prejudice the administration of justice by his spectacular incivility in this deposition:

The Delaware Supreme Court condemned Jamail’s conduct as “rude, uncivil and vulgar,” saying that it abused the privilege of appearing in a Delaware proceeding,” and showed “an astonishing lack of professionalism and civility.” (The immortal quote from the video is Jamail telling his adversary counsel that he “could gag a maggot off a meatwagon.” The deposition deteriorated into a Trumpian insult-fest, with Jamail calling the other lawyer “Fat boy” and being called “Mr, Hairpiece” in return.) The court went on to call Jamail’s unprofessional behavior “a lesson for the future—a lesson of conduct not to be tolerated or repeated.”

Following the judicial reprimand,  Jamail said,  “I’d rather have a nose on my ass than go to Delaware for any reason.”

But even Joe never did this. Continue reading →

Now THAT’S An Unethical Lawyer!

/ Jack Marshall / 12 Comments
Don't keep them waiting, Doug...

Don’t keep them waiting, Doug…

You know, I don’t comprehend  professional ethics alarm malfunctions like this one. I mean, if a lawyer thinks, “Hey, I think I’ll threaten opposing counsel with pepper spray and a stun gun to keep him in line,” and no faint ringing in his head suggests, “Wait—that might be unethical—maybe I sould check the rules,” what would make his ethics alarms sound? How can a lawyer ever think such conduct is justifiable or permissible, never mind that he could get away with it?

Nevertheless, California Douglas Crawford  held a can of pepper spray a yard from the face of the opposing lawyer, Walter Traver, during an April 2014 deposition  (with a stenographer there!). Crawford then told Traver, “I will pepper-spray you if you get out of hand.” Then the lawyer pointed a stun gun at Traver’s head and said, “If that doesn’t quell you, this is a flashlight that turns into a stun gun.” To show he wasn’t kidding, Crawford discharged the stun gun near Traver’s face. Continue reading →

Bill Cosby’s Rationalization: #14. Self-Validating Virtue

/ Jack Marshall / 17 Comments

stuart-smalleyThe smoking gun Bill Cosby deposition took place over four days in September 2005 and March 2006, during which time the comedy icon answered questions in a lawsuit alleging sexual assault filed by Andrea Constand, a former basketball operations manager at Temple University. Cosby settled the case, we now know, to avoid the testimony of several women who were prepared to back Constand with similar stories of being sexually assaulted. The deposition did not become public until it was revealed this month by the Associated Press and the New York Times.

Here is a fascinating exchange from that deposition:

Constand’s lawyer:  Do you feel that you are a good person?

Cosby:   Yes.

With this, Bill Cosby illustrates one of the more common and troubling rationalizations, #14 on the Ethics Alarms list, Self-validating Virtue:

A  corollary of the Saint’s Excuse  is “Self-validating Virtue,” in which the act is judged by the perceived goodness of the person doing it, rather than the other way around. This is applied by the doer, who reasons, “I am a good and ethical person. I have decided to do this; therefore this must be an ethical thing to do, since I would never do anything unethical.” Effective, seductive, and dangerous, this rationalization short-circuits ethical decision-making, and is among the reasons good people do bad things, and keep doing them, even when the critics point out their obvious unethical nature. Good people do bad things sometimes because they are (or were) good people, and because of complacency and self-esteem begin with a conviction, often well supported by their experience, that they are incapable of doing something terribly wrong.

All of us are capable of that, if our ethics alarms freeze due to our environment, emotions, peer pressure, and corrupting leadership, among many possible causes. At the end of the movie “Falling Down,” the rampaging vigilante played by Michael Douglas, once a submissive, law-abiding citizen, suddenly realizes what he has done. “I’m the bad guy?” he asks incredulously. Indeed he is. All of us, no matter how virtuous,are capable of becoming the bad guy…especially when we are convinced that we are not.

Very few people can admit that they are not good people. Public polls suggest that over 90% of Americans think they are the most ethical people they know. I am certain Cosby was sincere in his answer. His complete absorption by this rationalization explains the apparent astounding hypocrisy between his words, public image and private life. Cosby doesn’t believe he has done anything wrong. How could he? He’s Bill Cosby, and Bill Cosby is good.

Indeed, Cosby embodies the kind of person described by Michael (Jeff Goldblum) in “The Big Chill”:

“Nobody thinks they’re a bad person. I don’t claim people think they do the right thing.They may know they do dishonest or manipulative things……but think there’s a good reason for it. They think it’ll turn out for the best. If it turns out best for them, it is by definition what’s best.You also come up against a question of style. My style may be too direct. Perhaps given my style I seem more nakedly……opportunistic or jerky or… – Whatever. All that’s happening is I’m trying to get what I want. Which is what we all do, but their styles are so warm……you don’t realize they’re trying to get what they want. So my transparent efforts are more honest and admirable….Don’t knock rationalization. Where would we be without it? I don’t know anyone who can go a day without two or three rationalizations. They’re more important than sex.”

Well, let’s say that for Bill Cosby they are exactly as important as sex.