Florida

Animal Treatment Ethics, Stowaway Raccoon Division: Should A Lawyer Face Professional Sanctions For This?

/ Jack Marshall / 24 Comments

Controversial Cruelty to Animals Day at Ethics Alarms continues (I don’t plan these things) with this legal ethics story out of Florida. The video above is at the center of it.

Florida disciplinary authorities have opened an investigation into the professional fitness of a lawyer who forced a stowaway  racoon off of his boat a long way from shore,  and thought it was all amusing enough to post a video of the incident on Facebook. The bar’s assumption is that the animal drowned.  The lawyer is now subject to prosecution for a violation of Florida’s wildlife laws.

In Florida, as in every other U.S. jurisdiction, one of the kinds of unethical conduct that can result in bar discipline is committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,”  as stated by  Rule 8.4 (b) of the Florida Rules of Professional Conduct . Should the nautical lawyer’s conduct  qualify?

You may recall a far more egregious case of animal cruelty by a lawyer discussed here, where I questioned if a psychopath lawyer’s fatal attack on his girlfriend’s dog Snoopy really tells us anything about his trustworthiness as a lawyer. I wrote then,

Emotionally, I have no problem with seeing an animal abuser kicked out of my profession, but I don’t understand what values are being applied. Is it the commission of a crime? Most lawyer crimes don’t result in disbarment, if they don’t involve lying, cheating or stealing. …There is no basis on which to conclude that [Snoppy’s killer]  isn’t competent, zealous and trustworthy—just keep him away from pets.

Now, you may well ask, “Isn’t this at least “moral turpitude?” That’s the character flaw that will keep applicants for bar membership from getting a license due to character deficiency. There are two points related to that. First, moral turpitude might keep you out of the law at the outset, but it is not one of the official no-nos that will get you kicked out of it one you are a practicing lawyer.  The legal  definition of moral turpitude is an act or behavior that gravely violates the sentiment or accepted standard of the community. Brutalizing an animal would certainly qualify. The ABA, however, greatly narrowed the definition as it was applicable to legal discipline:

The 1983 Model Code (periodically amended by the ABA House of Delegates over the last 32 years) rejected the prohibition against “illegal conduct involving moral turpitude.” The ABA’s reason, which it included in a Comment to its Rule 8.4, was quite simple: “Moral turpitude,” the ABA advised, is a “concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” The American Law Institute’s Restatement of the Law Governing Lawyers § 5 (Third) (ALI 2000), agreed. It also concluded that “moral turpitude” is vague and may lead to discriminatory or otherwise inappropriate applications.”

This looks like an Ick Factor case to me. The abuse of poor Snoopy is so viscerally repulsive that the bar and the courts can’t keep their ethical priorities in order. It is also, as particularly ugly discipline cases often are, a matter of public relations and self-preservation for the legal profession. The bar association knows that not banning a lawyer like Pastor—one hopes there aren’t many–signals to the public that the bar welcomes brilliant advocates who may be monsters in their spare time. That is a dark and dangerous road the profession would rather avoid.

The lawyer in the Florida video also has some defenses the poodle-stomper did not.  Raccoons are wild animals, and cute as the are, they also bite. I wouldn’t want to be trapped on a boat in middle of the ocean with one, though I wouldn’t throw the critter overboard either, unless it was me or him. (My father had a home movie of me jumping out of a canoe and swimming to a lake’s shore when I saw a large spider in the vessel. Of course, I was only 15. All right, I was 26….) The raccoon may have also been a better swimmer than everyone assumes: unlike in the case of poor Snoopy, the lawyer wasn’t trying to kill the animal, just get it off the boat.

I do not, however, second the opinion of Law professor Dane Ciolino, writing on his Louisiana Legal Ethics blog, who says in discussing the case, “A Maryland lawyer was suspended for microwaving a cat. But a racoon? I think not.”

Wait—is the professor really saying that microwaving a live raccoon would not justify bar sanctions, but a cooking a cat does? That’s animal bigotry, but it is consistent with what I detected in the Snoopy case. If that lawyer had stomped to death a raccoon that wandered into the apartment, I doubt that he would have been disciplined.

Yet animal cruelty is animal cruelty. If gratuitously killing a dog or a cat shows that a lawyer is unfit to practice, so does unnecessarily killing a raccoon.


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Lunch Time Ethics Appetizer, 4/17/2019: Accountability, Conflicts of Interest, Incivility, Hype And Privilege

/ Jack Marshall / 26 Comments

It’s a real ethics poop-poop platter…

1. Red Sox lousy start ethics. Boston Red Sox starting ace Chris Sale, widely regarded as one of the top two or three pitchers in baseball who signed a rich multi-year extension with the team right before the season began, lost his fourth straight start yesterday to begin the season. He told reporters, “This is flat-out embarrassing. For my family, for our team, for our fans. This is about as bad as it gets. Like I said, I have to pitch better…It sucks. I’m not going to sugarcoat it. I just flat-out stink right now.”

2. The Hollywood writers vs agents mess. I haven’t posted on this because I can’t find a copy of the controversial “Code of Conduct” that the agents refuse to sign. I also need to bone up on  the agency laws in New York and California. This article is a good summary of the show-down. Regarding the question of conflicts of interest in the practice of “packaging” and agents going into the production business, , however, it seems clear that the writers have the better arguments. From the article:

Packaging is a decades-old practice under which agencies may team writers with other clients from their stables for a given project. With packaging fees, an agent forgoes the usual 10 percent commission fee paid to them by individual clients; in its place, they are paid directly by the studio….The writers argue that agencies violate their fiduciary obligations to their clients when they make money from studios instead of from the people they are representing. The practice of accepting packaging fees, the writers say, allows the agencies to enrich themselves at the writers’ expense when they should be using their leverage to get more money for writer-clients.

Any time an agent gets paid by the party the agent is supposed to be negotiating with, that’s a textbook conflict. I’m amazed the agents have been getting away with this practice for so long. As for the production deals…

There are agency-affiliated companies that have moved into the production business — and this does not sit well with the writers unions. W.M.E., for instance, has an affiliate company called Endeavor Content. It was formed in 2017 and is a distributor of the show “Killing Eve,” as well as a producer of an epic drama coming from Apple TV Plus called “See.” C.A.A. also has an affiliate: Wiip. It is a producer of “Dickinson,” a comedy series that is also part of the Apple rollout scheduled for the fall. United Talent Agency is also getting in on production, with an affiliate called Civic Center Media. It has teamed up with M.R.C., the producer of “House of Cards,” to make new shows.

The agencies have argued that these affiliates are artist-friendly studios that will help writers, because they add to the number of potential buyers — which means more competition for writers’ services and bigger paychecks. The writers have said that agencies have a conflict of interest when they act as studios. How, they ask, can an agent represent you and also be your boss?

Bingo. The short and easy answer is “They can’t.”

Stay tuned… Continue reading →

Social Media Is Eyeball To Eyeball With Legal Ethics, And Guess Who Blinked First?

/ Jack Marshall / 4 Comments

Online consumer complaints about lawyers on sites like Avvo and Yelp have been driving lawyers crazy. The ethics rules on client confidentiality prohibit a lawyer from defending him (her) self online, because that requires revealing details of the representation. Two years ago, the Colorado Bar suspended a lawyer’s license d for six months after he responded to a negative online review and revealed that the complaining client had bounced a check and committed unrelated felonies. Lawyers are also generally prohibited from suing their clients for false statements about them in disciplinary complaints, but there have been exceptions. In Blake v. Giustibelli, the Fourth District Court of Appeal upheld a $350,000 libel judgement for a lawyer  against a divorcing couple who posted an online review that falsely accused the attorney of inflating fees and falsifying a contract.

Now Florida, one of the strictest jurisdiction regarding attorney ethics, has allowed a tiny crack in the wall. The Florida Bar Ethics Committee voted 18-0 to approve a Florida Bar Staff Opinion that “permits an inquiring attorney to post a limited response to a negative online review that the attorney says falsely accuses her of theft.” The Florida Bar says that  the increasing frequency of negative online reviews mandate some loosening of the rules. “An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded,” the opinion states. “However, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”

You can read more about the Bar Committee’s findings on the Florida Bar website here.

Ethics Hero: The Florida Senate

/ Jack Marshall / 7 Comments

Let us take a moment out of our hectic holiday schedule to say thanks to the Florida State Senate, which loudly and visibly re-affirmed ist rejection of one of my least favorite workplace traditions: the fake resignation.

 Broward County’s embattled supervisor of elections Brenda Snipes announced that she would resign her post effective January 4, announcing her departure after the November midterm elections had exposed, not for the first time, that she was a blithering incompetent who should have been fired long ago.  But then Governor–and Senator-Elect— Rick Scott suspended her late last month, citing “misfeasance, incompetence and neglect of duty.  Snipes announced that she was rescinding her decision to step down.

The Florida Senate has the authority to remove an official from office or reinstate them under the state’s constitution, but  the upper chamber’s general counsel, in a memo, determined that Snipes tried to take back her decision too late and that her resignation was permanent. Senate President Bill Galvano sent a memo to members last week confirming that her “Never mind!” was a non-starter.

Good.

This has nothing to do with Snipes’ well-established ineptitude. I’ve had personal experiences with “I quit!”/”I was just upset, I didn’t mean it!” in multiple settings. Every single time I have told the regretful employee, who was inevitably trying to use a resignation for leverage, “Sorry. Resignations are final.” In every such case, the employee was shocked, acting as if they had been fired with out cause. No, they had been in essence fired for cause, or more accurately, not re-hired because of their reliability, character and conduct. I have also replied to threats to quit, as in “If you don’t do it my way, then I resign!,” with a curt. “Fine. I won’t, and I want your resignation on my desk.”

Let’s call it “The Snipes Rule.” If you quit a job,  and you want it back, you have the same standing as any other candidate for your old position, except only you showed the dishonesty and bad judgment to quit when you either didn’t mean in, or hadn’t thought it through. That puts you at the end of the line.

“I wish you well in your future endeavors.”

 

Thanksgiving Week Launch Ethics Warm-Up, 11/19/18: Turkeys

/ Jack Marshall / 15 Comments

Good Morning.

1. This is weird. The Florida Supreme Court released a long-awaited decision concerning whether a judge’s Facebook friendship with an attorney should be  grounds for disqualification if the attorney is arguing a case before that judge. The 4-3 opinion holds that:

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification. 

I could not disagree more. A friend request from a judge is inherently coercive, and creates pressure on the lawyer to accept. Who wants to tell a judge that he doesn’t want to be his friend? Other bar associations and courts have held that it is improper for judges and lawyers to “friend” each other if there is any chance that the judge will be presiding over the lawyer’s cases, and that is the wiser rule. My own preference would be for judges to stay off social media entirely, except for close friends and family. They can only get in trouble there.

2. And this is much weirder…Apparently an app, ‘Santa Call New 2018,’ briefly available for download at the Amazon Children’s Store, would place a call to “Santa”when kids pressed the ‘call’ button, and Jolly Saint Nick would reply, “Hello there. Can you hear me, children? In five nights, if you’re free, I will look for you, I will find you, and I will kill you.”

Amazon is investigating.

Happy Holidays! Continue reading →

Saturday Morning Ethics Warm-Up, 11/10/18: “Ugh!” “Bah!” “Arf!””Ew!”And “Ahh!”

/ Jack Marshall / 33 Comments

Why are these guys happy? Read on…

Goooood morning!

1. Why does anyone pay attention to what Dan Rather has to say about the trustworthiness of the news media? Interviewed in some Trump-bashing forum or another, the man who was fired from CBS for using a fake document to bolster an anti-President Bush story argued that President Trump was waging a “war on the press” in order  to “undermine the public’s trust in the rule of law, ” and that he was making “some headway” in undermining the press’s legitimacy.

To the contrary, Dan Rather and his biased news media colleagues have been 100% responsible for undermining the public’s trust in journalists. All of the Presidents attacks and insults would come to nothing if it were not so obvious, which more evidence every day, that the news media was biased, incompetent, dishonest, and pursuing a partisan agenda. Indeed, the fact that CNN, MSNBC and other news sources still resort to Rather as a credible commentator is enough to justify distrusting the new media all by itself.

2. Yup, those Republicans won’t return to civility…Kathy Griffin, trenchant as always and teeming with wit, has now called President Trump a “stupid racist piece of shit.” It is time to definitively establish that the “Trump is a racist” slur is a Democrat/”resistance” Big Lie, and nothing else. There is no evidence that Donald Trump is a racist. I have reviewed the episodes that supported support that contention, and ultimately they boil down to “If you aren’t a progressive, you’re a racist.” Trump opposes illegal immigration, and the dishonest advocacy of open borders has relied on intimidating supporters of this self-evidently correct position by tarring them as racist. Trump challenged Barack Obana’s birthright citizenship exactly as he challenged Ted Cruz’s citizenship in the 2016 campaign for the GOP nomination. (Ted’s not black, in case you hadn’t noticed.) The argument that this proves Trump is a racist is a failed syllogism: Many racists were birthers, Trump was a birther, ergo he’s a racist. False. He’s an asshole. He would have trolled any President, of any color, with the same idiotic accusation if it suited his purposes. But, again, the Democratic play-book for eight years now has dictated that any criticism of Obama is suspect of racist motives. And, of course, the President must be racist because he wants to limit the number of Muslims who enter the country from hotbeds of terrorism.

The hypocrisy of Trump’s foes using the Nazi Big Lie tactic while accusing him of being a fascist is so obvious that it’s hard to believe everyone doesn’t see it. I admit, it’s a versatile Big Lie, allowing pundits to equate Trump’s advocacy of “nationalism,” meaning opposition to the world government dreams the Democratic Party (and quite a few Republicans) have been promoting since Woodrow Wilson (who WAS as racist) with “white nationalism.”

Griffin’s “evidence”? The President said the White House might pull the press credentials of April Ryan, who happens to be black. If CNN was real news organization, it would have fired Ryan, who is a biased, ideologically-driven hack, long ago. Here are the Ethics Alarms Ryan files. Here is what April Ryan considers legitimate questioning of the White House Press Secretary:

“Sarah, is slavery wrong? Sarah, is slavery wrong? Does this administration think that slavery was wrong? Sarah, does this administration believe slavery was wrong?”

Stop making me defend President Trump. Continue reading →

Evening Ethics Encounter, 9/26/18: And The Brett Kavanaugh Nomination Ethics Train Wreck Just Keeps On Rolling…

/ Jack Marshall / 40 Comments

Good evening!

Well, it wasn’t so good: the Red Sox lost the second game in a double-header to the hapless Orioles….

1. Tempted. I am considering posting the “Bad Guy” essay on Facebook. It is certain to upset people, a lot of them, some good long time friends. I don’t generally try to upset people, friends or not. The echo chamber on social media, however, has become unbearable, with the most extreme, unsupported, unsupportable, declarations from the dregs of the progressive talking points attracting likes and cheers, and no glimmer of perspective, objectivity, and certainly not ethics peeking through the muck. I guess I want to upset them, like you want to slap a hysteric, or throw ice water on two brawling drunks. Nothing I write will accomplish anything positive with people this infected with hate and bias.

I guess posting it would be unethical.

Right?

2. This shouldn’t even qualify as an “allegation.” The Times:  reports that Julie Swetnick  “said she witnessed Judge Kavanaugh… lining up outside a bedroom where ‘numerous boys’ were ‘waiting for their “turn” with a girl inside the room….Ms. Swetnick said she was raped at one of the parties, and she believed she had been drugged. None of Ms. Swetnick’s claims could be independently corroborated by The New York Times, and her lawyer, Michael Avenatti, declined to make her available for an interview…. Unlike two other women who have accused Judge Kavanaugh of sexual misconduct, one who went to college with him and another who went to a sister high school, Ms. Swetnick offered no explanation in her statement of how she came to attend the same parties, nor did she identify other people who could verify her account…. In her statement, Ms. Swetnick said that she met Judge Kavanaugh and Mr. Judge in 1980 or 1981 when she was introduced to them at a house party in the Washington are… She said she attended at least 10 house parties in the Washington area from 1981 to 1983 where the two were present. She said the parties were common, taking place almost every weekend during the school year. She said she observed Judge Kavanaugh drinking ‘excessively’ at many of the parties and engaging in ‘abusive and physically aggressive behavior toward girls, including pressing girls against him without their consent, “grinding” against girls, and attempting to remove or shift girls’ clothing to expose private body parts. I also witnessed Brett Kavanaugh behave as a “mean drunk” on many occasions at these parties.'”

Althouse asks,

If the allegations are true, there must be many, many other witnesses. Where have they been all these weeks? And why would she go to “at least 10 house parties” if they were as she described? The NYT suggests there’s a gap in the account because Swetnick doesn’t say how she got to go to the same parties as Kavanaugh. We’re told Swetnick grew up in Montgomery County, Md., and graduated from Gaithersburg High School — a public school — in 1980 and attended the University of Maryland. That puts her in a less elite crowd. She’s also 2 years older than Kavanaugh and graduated from high school 3 years before he did, so it makes it a little hard to picture them at the same parties. Did older, state-college women go to parties with prep school boys years younger than them? If they did and the boys raped them, repeatedly and systematically, how could the boys get away with it, and why are there not many more women coming forward with the same allegations? And why are we getting this through Michael Avenatti?

Continue reading →