End Of The Day Ethics, 4/24/2020: A Curse, A Whorehouse, And The Grim Reaper

Yay.

Another weekend…

1. Nah, there’s no news media narrative coordination! Twitchy has pointed out the remarkable conformity of language regarding the Joe Biden sexual assault accusation. Last week, CNN reported that Democrats are “grappling with questions” about Tara Reade’s allegations. This week:

Politico: “The movement is facing a new challenge: how to grapple with the allegations against Joe Biden without tearing itself apart.”

Jake Tapper on Twitter: “Democrats grapple with questions about Tara Reade’s sexual assault allegation against Joe Biden…”

Jeremy Scahill at the Intercept: “My aim in writing this piece was to put into words what many principled people are grappling with right now, not to tell anyone what to do. Recognizing and understanding the problem helps us all decide what we believe is right…”

Mother Jones: “Sexual Assault Advocates Are Grappling With the Allegations Against Joe Biden”

All independent, objective journalists, of course…talking points? What talking points?

2. This “sharing a life” concept seems to be beyond you…over at Social Q’s a woman who is living with her boyfriend to ride out the pandemic complains, “He eats significantly more than I do, including some foods I don’t touch. Still, we split the grocery bill, and I am paying significantly more for food than usual. How should I handle this?” Columnist Phillip Gallanes’ advice is impeccably ethical:

Try stepping back and looking at the bigger picture…Sure, he eats more than you, but are you twice as messy (while sharing cleaning duties equally)? Do you watch three times as much Netflix (but split the bill in half)? And I haven’t even touched on emotional labor yet. ..if you want your partnership to survive even after we’re set free again, consider all the contributions each of you makes.

Nice try, Phil, but I’m guessing that question is signature significance, and the relationship is doomed. Continue reading

Now THIS Is An Unethical Lawyer. Yes, I Am Confident That I’m Not Jumping To Conclusions Here…[CORRECTED]

John Gillespie, a  criminal defense lawyer in Melbourne, Florida, was arrested in a law enforcement sting operation over the weekend  for using his legal practice to recruit young female clients into a prostitution ring that he ran out of his home.

And you thought “Better Call Saul” was disillusioning…

The Orlando Metropolitan Bureau of Investigation found evidence that Gillespie “would initiate women he represented on criminal charges into prostitution or exchange sex acts for legal fees.” A former law firm employee tipped off the agency, explaining that she had helped Gillespie recruit women and girls into sex trafficking. Continue reading

April Fools Free Zone Ethics Warm-Up: Everything You Read Here Is Real, Unfortunately.

Happy Day Like Any Other Day.

Well, not “happy,” exactly…

I’m on record on Ethics Alarms as detesting April Fools Day, as well as regarding April Fools stunts by professionals, like lawyers and journalists, unethical though usually not sanctionable. It should be a children’s day, like Halloween, but adults are determined to co-opt all such days, ruining it for everybody.

1. I lost a good friend yesterday. It’s more than that really: the human race lost one of its finest representatives. His name was Dennis Nollette; he was a lawyer, a writer and a bon vivant, but most of he was one of those amazing people who made you feel good just by being around him. I knew him in laws school, where he was my room mate for a year; he also was a member of the casts of the three productions I staged when I was a student. Since graduation, I think I saw Dennis six times, never for long, but with him it seemed like the time melted away: he was always the same, always emitting his powerful positive energy, optimism, and love for those around him, and I always felt as close to him as ever.

And just like that, he’s gone. There was no warning; it all happened so fast. All I have now is an overwhelming feeling of loss, along with an acknowledgment of my duty to let as many people as possible know that he was here, that he made the world a better place by being here, and that those of us who remains should follow his example by making the best out of life, and encouraging others to do the same by our example. That was Dennis’s genius, and attention must be paid.

2. Maybe the Constitution IS a suicide pact…Justice Robert H. Jackson’s  famous line in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case, has come to mind many times in the past few weeks, as the news media and online sources have churned out some of the most irresponsible and outrageous essays in memory, many of them about how this period will “change America forever,” usually in undesirable ways.  90% of these screeds are nonsense and based on flawed reasoning. My current leader for the worst idea is this piece, by conservative gadfly Roger Simon: “Should We Postpone the Presidential Election One Year?”

It’s an incompetent question. Not only shouldn’t we, we can’t, and any suggestion from Republicans that we ought to even think about it would be instantly condemned as the attempted dictatorship by Donald Trump that Big Lie #3 has warned us about.  We also know that if the President did get an extra year, it would spent all of it defending himself against one impeachment attempt after another. Continue reading

When Ethics Alarms Don’t Ring (Or Were Never Installed): The Covidiots

Once again, one has to ask:

What’s the matter with these people?

The Beach

California Gov. Gavin Newsom issued a shelter in place order for the Golden State’s  nearly 40 million residents to stay at home from March 20 to the foreseeable future. California is third among the states in number of Wuhan virus cases. So, naturally, people went to enjoy themselves at the beaches, hiking trails and parks.

The Hosts

New Jersey police arrested  Eliyohu Zaks last week after a neighbor notified law enforcement that a large crowd had been observed at his home. It was a wedding. Police dispersed the crowd of at least fifty and charged Zaks with “maintaining a public nuisance.”  Earlier in the week, police broke up two other weddings in the same neighborhood, and the day before, a fourth homeowner, Shaul Kuperwasser, was also charged with “maintaining a public nuisance” by hosting more than fifty friends at his residence.

This is something of an epidemic of its own. “The Lakewood Police is asking that its citizens be responsible and obey the directives set forth by the State of New Jersey for the safety and health of all,” local law enforcement said in a statement. “Those that choose not to will be subject to criminal prosecution.” Continue reading

Sunday Morning Ethics Reveries, 3/15/2020: Oh, Hell…I Have To Write About The Wuhan Virus Whether I Want To Or Not..

Good morning…

The avalanche of Wuhan virus stories with ethical implications cannot all be squeezed Part III of the series about the pandemic’s ethical implications, especially since that one will concentrate on politics and the news media. So I’m stuck, much as I would prefer to think about almost anything else….

1. Here’s one that compels the question, “What’s going on here?” among others.  The Struthers, Ohio, police department posted this notice on Facebook:

“Due to the coronavirus, the police department is asking that all criminal activities stop until further notice. Thank you for your anticipated cooperation in the matter. We will update you when we deem it’s appropriate to proceed with yo bad selves.”

Before I got to the end, I assumed this was a serious message. It is far from the dumbest thing I’ve seen in response to the Wuhan Virus mess.Then I reached the end, and I decided that it was probably a joke.

Thinking some more, though: would it necessarily be futile to ask criminals to be responsible members of the community just for a while, for their own benefit as well as society’s? There might be some who would take the appeal to heart. If there were, however, the joke ending of the message would undermine any such impulse.

2. More on the Name Game: Our esteemed Mrs. Q had dubbed the illness the WuFlu. Checking on Google, there was a flurry or reports using that name in January and February; there was even a hashtag. I like it, but using Wuhan Virus does a better job of rubbing in the face of the appropriate parties the deceit and cowardice of the news media’s rush to follow China’s edict and pretend that the virus originated somewhere else. Continue reading

The Last Ethics Warm-Up of 2019…And I Finally Figured Out How To Get Ethics Alarms Links On Facebook

Ethical New Year!

1. Boy, am I slow. You can link to an Ethics Alarms article by using the Twitter link that every post has. This link works on Facebook, where EA has been banned with no explanation: I just tested it. So an interested reader clicks on that link, and is taken to a tweet that contains the Ethics Alarms link.

From now on, all posts will include the Twitter link to the post at the end.

2. Don Imus. The infamous “I-man,” Don Imus, died last week. He was one more example of the inherently unfair standard that shadows “shock jocks,” who are paid to be improvisational, outrageous, irreverent, and brave, but if they make one miscalculation and go too far (and what “too far” is changes quickly), their careers can end overnight. So it was that Imus and his on-air acolytes made demeaning and racially inflammatory comments mocking a college women’s basketball team, and Imus never recovered. That was even before social media mobs had reached their current strength. Imus was on AM radio and simulcast on TV; no shock jocks dare to do his act under such conditions now.  They wouldn’t last a week. From his Times obituary: Continue reading

The Life of James Dailey

Another of the periodic death penalty controversies is unfolding in Florida. The stay of execution for James Dailey expired yesterday. Governor Ron DeSantis now has to decide whether to grant him a new clemency hearing, or uphold his death sentence. So far, the Governor has not been sympathetic.

New evidence provided by the co-defendant in the Dailey’s murder case has been offered by Jack Pearcy, Dailey’s co-defendant in the 1985 murder of 14-year-old Shelly Boggio. Pearcy was sentenced to life in prison, Dailey to death. Pearcy has written a letter declaring, “James Dailey had nothing to do with the murder of Shelly Boggio. I committed the crime alone.” A federal judge issued a stay until Dec. 30 to give attorneys an opportunity to file appeals.

As the New York Times argued in an editorial, Dailey’s conviction also depended heavily on the testimony of a repeat jailhouse snitch who had a cozy relationship with the prosecutors. The Times says, “The rank injustice of cases like James Dailey’s provides yet another reason, as if more were needed, that the death penalty must be abolished.”

No, it doesn’t. I haven’t studied the case, but based on what I’ve read, it certainly appears that Dailey might be innocent, and thus in his case, the death penalty is unjust. (I agree with the Times that jailhouse snitches are unreliable witnesses and should be regarded by juries with skepticism. On the other side, I don’t find a late claim of guilt exonerating a co-defendant especially persuasive. The guy is locked up for life; he has nothing to lose or gain. ) Continue reading

Ethics Warm-Up, 11/15/2019: Idiots, “Friends,” Rationalizations And Doing Things The Hard Way

The Korean War memorial on the Washington Mall….moving and ghostly.

Greetings!

1. The media, doing its best to make the public stupid. Yesterday the collected dolts  of “The View” managed to mangle the concept of hearsay, following a Democrat rep’s absurd contention that hearsay evidence cold be “better” than  direct testimony.  The panel show also misrepresented how the Clinton impeachment proceeded.

Sunny Hostin, the alleged conservative on the panel,  said that  President Clinton’s impeachment  was the result of Linda Tripp’s  testimony, saying , “Clinton was impeached because of Linda Tripp’s testimony, which was complete hearsay!”

How wrong can a statement be? Clinton was impeached because he lied under oath in a hearing involving the civil law suit against him by Paula Jones (as well as for lying to a grand jury and obstruction of justice.) Tripp had made an illegal tape recording of Lewinsky, which was not hearsay. Tripp’s tape was used to get Lewinsky to admit the affair, which was clearly not hearsay. Then there was that stained dress. Had not direct testimony and physical evidence backed up Tripp’s account, Clinton almost certainly   not have been impeached

2. This is why we can’t have nice things. It was inevitable, with all the recent resurgence in interest in the 90s sitcom “Friends,” that the long-running and still-popular show would finally be subjected to one of those depressing reunion specials. This was especially likely because the aging cast isn’t much in demand these days, and mots of them could use a boost.

But Beware, “Friends,” the woke posse is watching. The show about six white hetero singles living in New York was not diverse, and has been criticized in the 15 years since it ended for being implicitly racist, sexist, and anti-LGBTQ. Thus the Righteous have decreed, “Friends’ reunion is all we have wanted for years, but HBO Max version better have more racial diversity and LGBTQ representation.”

Thus we get this,

[T]he iconic NBC show is not without its problems, and yet it entertained us in real-time for ten years and for years after that, making us laugh on the days we are feeling low and making us believe that they will be there for us. It is only natural that we want to relive those feelings again, but even those of us who grew up on ‘Friends’ have outgrown those insensitive jabs about Chandler’s (Mathew Perry) drag queen father, unwarranted fat-shaming of Monica (Courtney Cox), repeated complicity of Joey’s (Matt LeBlanc) sexism and so on.

When the show does return in – hopefully – 2020 for an HBO Max audience, we should hope that it is rich in diversity without it being about tokenism. It is unfathomable that this group of friends who live in New York, the melting pot of America, hasn’t made friends with more diverse backgrounds. Even more so, it is difficult to believe that they haven’t even interacted with people of different sexualities, sexual identities, and races for them to know better than to make jokes about them. It may have flown in the 90s and 2000s, but it definitely isn’t going to in the current day and age.

No, we should hope that it is funny, but if awkward virtue signalling and making sure that all the EEOC boxes are checked while making up for ten years of insensitively showing a group of friends who hung out primarily with people like themselves (like most of us), are going to be the priorities, and you know they will be, it would be kinder and more responsible to leave Ross, Chandler, Joey, Phoebe, Rachel and Monica where they belong—in the past, on re-runs.

Incidentally, one of the two funniest jokes I ever heard on “Friends” involved “fat-shaming.” The groups was watching an old home movie taken when Monica was a grossly over-weight teen. The now svelte woman, embarrassed, said, “They say that the camera makes you look 15 pounds heavier,” to which Chandler replied, “Just how many cameras were on you?”

3. Upon reflection, I don’t think I need to add this new rationalization. The Rationalization List is stuck at 99, and I have been wondering what #100 would be. When I was writing about the now-fired Canadian hockey pundit Don Cherry bringing himself down with his big mouth, I was annoyed by how many of his defenders argued that Don was just being Don, and since he was always Don, and “didn’t mean anything” by being Don, and was popular because he was Don, being Don shouldn’t be held against him. I suspect this bothered me so much because it appears to be the only thing keeping Joe Biden from being ripped to pieces by #MeToo Furies, as he richly deserves to be. So briefly I considered the need for a “It’s just who he is” rationalization.

Upon reflection, I demurred. This is cutting the rationalizations too thin. We already have Rationalization 41 A. Popeye’s Excuse, or “I am what I am”:

Sure, let’s stipulate that the jerk is exactly who and what he presents himself as being. This doesn’t excuse his conduct in any way. He is what he is, and what he is is an irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep. Being a real  irresponsible, narcissistic, rude, boorish, uncivil, nasty, destructive, ignorant, impulsive untrustworthy and despicable creep is no more ethical than being a phony one. In this case, transparency is not a virtue.

..and Joe Biden even has his own rationalization springing from Cherry-like excuses, Rationalization 38B, Joe Biden’s Inoculation or “I don’t deny that I do this!”

A sub-rationalization to #38. The Miscreant’s Mulligan or “Give him/her/them/me a break!,” Joe Biden’s Inoculation argues that habitual bad conduct is mitigated by one’s open admission and acknowledgment that one’s engaging in it is an ongoing problem.

I think this base is well covered. The search for #100 goes on…

4. Why didn’t she just take the bar exam one more time?  I don’t understand this story at all.

Roberta Guedes graduated from Stetson University College of Law in 2014, but she  failed to pass the Florida Bar exam twice. The traditional remedy for this is boning up and taking the exam again, and again if necessary, but noooooo. 

Instead, federal prosecutors say, she used the name of a classmate  to register two new law firms with the state Division of Corporations. Agnieszka Piasecka attended law school with Roberta, and the friends  talked about starting a law firm together, When Guedes flunked the bar exam, Piasecka who did not flunk,   opened her own firm in Clearwater,  specializing in wills and trusts, immigration, and divorce cases.

The plot began when Guedes offered Piasecka the free use of her  office in downtown Tampa to meet with clients a few times.

In September 2014, Guedes incorporated a firm she called Ferguson and McKenzie LLC, listing Piasecka as its registered agent. In November, she started a second legal services business called Immigration and Litigation Law Office, Inc., listing another woman, Arlete Chouinard, as a vice president and manager.  Neither Piasecka nor Chouinard knew about this. She created websites for both companies, including claims of  national and international offices that didn’t exist, and faked partners and associates using stock photos. She also represented clients, accepting fees while never telling them that she had no license.

Now Guedes, 40, faces prison time after pleading guilty to federal charges of mail fraud and aggravated identity theft. It is fair to say that it is now too late to pass the bar exam.

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

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

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