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.
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.
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.”
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?”
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.'”
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?
1. Call me an old ethics fogey, but I don’t think these kinds of TV series are culturally healthy. I’ve been watching the Netflix series “Ozark,” and hating myself for it. The show is well acted and even has its ethics dilemmas, but like “Breaking Bad,” which was obviously its inspiration, there are no admirable characters, and the “heroes” are criminals. In the Golden Age of TV, there were unwritten (and sometimes written) rules that shows could not rationalize, trivialize or romanticize illegal, immoral or unethical behavior, and needed to reaffirm positive values. In “Ozark,” “Breaking Bad” and “Better Call Saul,” the latter’s spin-off, as well as “House of Cards,” and “Shameless,” among others, there are virtually no admirable characters at all. I have been watching “Ozark” in part because I like the actors, in part because there’s nothing I want to watch anywhere else except baseball, and, yes, in part because of voyeurism. Still, it makes me want to take a shower, and I fell that the increasing tendency of Hollywood to portray everything and everyone as corrupt makes a “the ends justify the means” rationalization seem like a matter of survival.
2. Post-mortem slander, again. This is a recurring theme here: a famous person is deliberately misrepresented in a dramatic depiction, and legally there is nothing that can be done about it. The First Amendment protects the practice, but it is still wrong, it still leads to public misconceptions, and it still sullies the reputations and legacies of important figures in history who deserve better.
In a recent one-man show Off- Broadway about American song-wrting legend Irving Berlin, writer-performer Hershey Felder portrays Berlin in his dotage as ” a miserable fossil so twisted with rage and zonked on Nembutal that he shooed away carolers who came to his Beekman Place window to serenade him with ‘White Christmas’,” shrieking “They don’t deserve it,” meaning the gift of his iconic song. That’s not what happened, however; not even close, according to the Times review of the show:
When he was 95, Berlin not only let those carolers into the house on Beekman Place but also kissed and hugged them and (according to some reports) poured them hot cocoa. “This is the nicest Christmas gift I ever got,” he said.
UPDATE: I relied on the New York Times review for this comment, and not for the first time, trusting the Times to play straight may have been a mistake. Reader Eric Herrault has a very different view, and I am appending his comment here:
In a website however that discusses ethics I think it is important to call attention to the real serious problem here. The quoted “review” in the New York Times of The BERLIN piece, was some kind of personal grudge hatchet job against the performing artist. This brainless reviewer does not describe the show I saw, or in fact the show at all. This is easily provable by seeing the show itself, or having a look at every other New York outlet, major and minor. Nowhere does anyone suggest this twisted and bizarre take on Irving Berlin. The one place it is suggested however, is by the reviewer himself, as he links to and then lauds a review of the book As Thousands Cheer about Berlin, that calls Berlin terrible things and worse. And yet, somehow this neanderthal supports that utter nonsense. The show is full of joy and laughter from beginning to end, with a sad feeling lived too long and the world having passed him by. The ethics violation here is that this disturbed reviewer (for whatever reason) is allowed to write in the first place.
The death of John McCain is one of many important ethics stories that came on the radar screen today, and several of them warrant solo posts. At the risk of not having time to get them up today at all—this is a work day at ProEthics, for ethics never sleeps—I’m going to keep the warm-up to the lesser stories, and keep my fingers crossed.
1. Miracle Whip, Florida. The town of Mayo, in Florida’s Panhandle, secretly made a deal with the Kraft-Heinz mayonnaise alternative Miracle Whip to change the hamlet’s name so videographers could capture the residents’ shock when they hear that the name of their town is now a corporate brand. The plan was for ad-makers to film faux efforts to get residents to remove mayonnaise from their homes. Street signs and the name on the water tower had been changed and the mayor lied in an interview with the Associated Press, insisting it would be a good idea to make the name change permanent, before residents were let in on the joke.
Mayo will get between $15,000 and $25,000 to con its own citizens. The money will be used for city beautification measures, so I guess that makes it OK.
The town should impeach the mayor and everyone involved with the scheme, which was almost certainly illegal, and clearly unethical.
But funny!
2. First Ma’amophobia, and now…The Atlantic explores the controversy over using “guys” as a generic term for a group of mixed gender members, as in “hey, guys!” It’s an artificial controversy, and women who take offense when a boss says “you guys” when addressing the group knowing very well that no adverse intent was behind the wording should not be indulged, tolerated or “heard.” The problem is that overly sensitive superiors and others have given undo weight to similar contrived complaints through the years, with innocent and innocuous uses of a whole dictionary of collective nouns and pronouns being declared near equivalents of racial or gender slurs.The confounding factor is that there are terms that need to be retired. The use of “girls” to describe adult women was part of societal marginalization, just as the use of “boy” for adult African American men was demeaning. Eliminating the descriptive distinction between “actors” and “actresses,” on the other hand, is based on a contrived offense.
What is objectionable is that any argument for declaring a term offensive is supposed to be per se decisive, without debate or analysis, if it’s offered by a so-called oppressed group. No group should have the privilege of not having to make its case. I will, for one, eat my foot before I submit to the rhetorical abortion that is “person of color.”
There is nothing necessarily wrong with calling a mixed group by the jocular “guys.” The alternatives all stink, in different ways. I will not use “y’all” and sound like a refugee from “Hee Haw.” “People” is imperious, and actually annoys me (though I would never complain about it). “Folks” is more informal (good) but rings phony (bad). “Friends” is presumptuous, speaking of John McCain, whose habit of addressing every group as “my friends” probably lost him a million votes in the 2008 election.
Communication shouldn’t be that hard, and definitely should not be dangerous. A little Golden Rule would go a long way toward eliminating this problem, guys. Continue reading →
