Spurious And Vindictive Litigation Ethics: An Update On The Ethics Alarms Defamation Lawsuit

As I predicted yesterday, upon being informed that the plaintiff’s motion to reconsider the rejection of his appeal of the trail court’s rejection of his defamation suit had also been rejected, the now-banned Ethics Alarms commenter filed a petition for “futhur Appellate review” with the Massachusetts Supreme Judicial Court.

The argument presented is an extension of his appellate brief, which erroneously relied on Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), a Supreme Court case that is not germane to this one. The plaintiff isn’t a lawyer, though he is inexplicably confident of his legal analysis skills, which is unfortunate for both of us, as well as the poor judges and clerks in Massachusetts who have to waste their time and the State’s money dealing with these flawed motions and appeals.

The reason there was no defamation and could be no defamation is that my opinions of the plaintiff and his motives, harshly expressed as they may have been, were based entirely on what he had written on the blog and an email to me that I quoted, as well as the plaintiff’s own blog, to which I included a link. The core of defamation, be it libel or slander, is alluding falsely to or asserting some undisclosed event or conduct that a reader or a listener has no way of knowing whether it is in fact true or not. That was indeed the situation in Millkovitch, where  a newspaper columnist’s account of a brawl at a high school wrestling match reported that one of the teams’ wrestling coach, Millkovitch, had incited the riot and lied about it. Continue reading

Veteran’s Day Ethics Warm-Up, 11/11/19: Wishing My Dad Hadn’t Died Before He Figured Out How To Comment On Ethics Alarms…[CORRECTED]

Pop Quiz:

How many military veterans are currently running for President in 2020?

Answer: Two…Rep. Tulsi Gabbard (D-Hawaii), and South Bend Mayor Pete Buttigieg.

[Correction notice: I forgot about Pete in the first version of the post. Thanks to Jutgory for the catch, and thanks to Mayor Buttigieg for his service.]

1.  Here’s that “violating democratic norms” Big Lie again. This one was flagged by Ann Althouse (Thanks, Ann!)

U.S. District Judge Paul Friedman,  an appointee of President Bill Clinton,  said in a speech at  the annual Thomas A. Flannery Lecture in Washington, D.C. last week, “We are in unchartered territory. We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms. He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.'”

Althouse comments,

How do you get to be a federal judge and think the expression is “unchartered territory”? That’s a written speech too (presumably). Did he visualize some entity that issues charters authorizing people to speak about the courts in a particular way? You don’t need a license to speak in the United States, and to require one would, ironically, violate our norms. The expression is “uncharted territory,” which would simply mean that Trump is venturing into a new area of speech that we haven’t previously explored and therefore have not mapped…Now, I agree with the idea that Trump’s speech about law is unconventional, but what determines that he has violated all recognized democratic norms? It’s often said that the judiciary is the least democratic part of the government, that it’s countermajoritarian. So what are the norms of democracy that say a President should not criticize the courts?! You might just as well call this purported norm a norm of anti-democracy.

Anyway… the weasel word is “recognized.” It takes all the oomph out of “all.” Trump’s speech about judges violates “all recognized democratic norms.” Who are the recognizers? The judges? Judges certainly have a role talking about democratic norms, which are often part of the determination of the scope of the judicial role: Judges refrain from doing what is left to the processes of democracy. But part of democracy is speech about government — which includes the judges — and that speech is not limited to flattering and deferring to them. It does not violate the norms of democracy to criticize and attack judges.

Bingo. And it is because of judges whot say these sorts of things that the President is not unreasonable to accuse the judiciary of  bias. Ann chose not to mention that this was also a “norm” breached by Barack Obama, more than once, but I will, the point not being “everybody does it,” but that to this judge and others, what Obama did was apparently only objectionable when Trump did it too—a common theme in the anti-Trump propaganda of the last three years. Continue reading

A Rare Ethics Hero-Ethics Dunce: Maine Attorney General Janet Mills

I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

I looked everywhere to find a picture of a combination Hero-Dunce. This was the best I could locate: the Maine Atty. Gen.

If one’s only point of reference were Eric Holder, one might get the impression that the job of an attorney general is to use the influence and power of the office to pursue the executive’s political and policy objectives. That is not what an attorney general is supposed to do, however, because the top lawyer of a city, a state or the U.S. is pledged to represent all the people, not just those who patronize a particular party, and the top lawyer’s client is not the executive, but the entire government entity. If that entity becomes corrupt, then the client becomes the public that is being betrayed.

Maine’s Attorney General Janet Mills illustrated how the job should be done and can be, if the lawyer holding it is ethical and not merely a serving as a political yes-man. Governor Paul LePage, a Republican, wanted to appeal the federal government’s  denial of his request to remove about 6,000 low-income young adults, 19- and 20-year olds,  from Maine’s Medicaid program. Normally the Attorney General would handle the litigation, but Mills refused, insisting that it was  a case that could not be won, and would waste state resources. Excellent. Continue reading

The “Too Handsome To Rape” Defense

Sharper, Mathis, Ted Bundy.

Sharper, Mathis, Ted Bundy.

For whatever reason, there have been a lot of attacks on the legal profession lately—and some from within the legal profession—because of so-called “disgusting” and “frivolous” arguments by lawyers who are zealously representing their clients. These range from outrage over the so-called “affluenza” defense (which, it apparently does no good to point out, was explicitly rejected by the judge in that case), to the law suit against the Glendale, California memorial to women forced into sexual slavery by the Japanese in World War II, to the argument that Red Sox broadcaster Jerry Remy was complicit in his son’s allegedly murdering his girlfriend because Remy hired a lawyer who mounted a vigorous defense in the son’s earlier domestic abuse arrests.

Lawyers are ethically obligated to advance whatever non-frivolous arguments and theories that are most likely to achieve their clients’ objectives, whether it is avoiding prison or rationalizing the crimes of the Japanese army. That is their job and societal function, and it is essential to our avoiding a jack-boot system where any of us could be thrown in jail by popular opinion or government edict. The laws are there to be used by every citizen, even when the citizen’s objectives are unethical, or when the citizen is a cur.

Our rights are all protected well by this principle, and it’s high time we stopped bitching about it.

Undeterred by this, however, yet another defense attorney is being savaged in the news media and blogosphere, as well as by women’s rights advocates, for making an argument in defense of his client that they find offensive. In Georgia, Darriuos Mathis and his legal team are making the argument, among their efforts to show that the evidence against him is not sufficiently conclusive, that Mathis is too attractive--fit, handsome, sexy– to have to resort to kidnapping and raping a 24-year-old woman two years ago, which is what he charged with.

Continue reading

The Comfort Women Memorial Lawsuit: A “Disgusting” Legal Argument, Perhaps…Unethical, No

The Glendale Comfort Women Memorial

The Glendale Comfort Women Memorial

The large and respected law firm Mayer Brown has taken the ugly case of some Japanese-American clients who want the city of Glendale, California to remove a memorial to World War II “comfort women” from a public park. In doing so, and in the way it is proceeding, the firm has inspired harsh condemnation from two estimable legal commentators, both First Amendment champions: Marc Randazza, and Ken White. Their objections, which caused Randazza to call the firm “the least honorable law firm in the world,”and White to conclude, “This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences,” are heartfelt, but, I think, misguided. Their argument, beside arguing that the lawsuit is frivolous, is best articulated by Randazza: Continue reading

When A Frivolous Defense Isn’t Frivolous, Or Why Ethical Lawyers Represent Unethical Clients

Mr. Friedman, wasting time and money, and proud of it.

Mr. Frieman, wasting time and money, and proud of it.

I don’t know if Jonathan Frieman is an Occupy Oakland refugee, a failed lawyer, a scofflaw, a dummy or just a trouble-maker, but he decide to game a California “2 or more persons” car pool lane by  “sharing” his vehicle with corporate documents. Thus, when he was pulled over, he  handed the Highway Patrol officer incorporation papers that were in the passenger seat. Get it? The corporation is a “person,” legally, so there were two “people” in his car! The officer ticketed him anyway, since his defense was ridiculous. But funny! Continue reading