There will be various ethics matters to consider in coming days regarding the acquittal of Kyle Rittenhouse, but for now I am occupied with a hypothetical ethical dilemma.. Ready to board the Kyle Rittenhouse Ethics Train Wreck?
I heard a member of Rittenhouse’s family speaking about how Kyle could now get on with his life. He’s going to college, or intends to. Hmmmmm….
If you were involved in the admissions process of a relatively competitive college with a national reputation, would you favor admitting Kyle Rittenhouse? Let’s assume that he has good enough grades and test scores to be admitted to your school, but neither such outstanding credentials that he is a lock, nor a dearth of qualifications that would normally justify rejecting him even if he wasn’t a divisive and controversial figure.
The Euthanasia Slippery Slope: A Case Study, this morning’s post, has attracted a wider range of opinion than I expected. I considered attaching a poll to the original post; now I’m going to go a step farther, and base that poll on a hypothetical of the kind that I use in my legal ethics seminars.
Speaking of those, on Tuesday, September 17, in Richmond, VA, and Wednesday, September 18, in Fairfax, VA, I’ll be presenting “The Greatest Legal Ethics Seminar Ever Taught!” for three hours of legal ethics CLE credit to Virginia lawyers and others. The title reflects, other than my own warped sense of humor (“The Greatest Story Ever Told” is one of the worst movies I’ve ever seen), the fact that the legal ethics hypotheticals being discussed cover what I have found to be many of the most contentious, fascinating legal ethics issues extant over 20 years of doing these things. Moreover, I am being joined by my friend and colleague, John May, who approached these issues from the perspective of a practical litigator as well as one who often defends lawyers accused of ethical improprieties. He’s also one combative and clever pain in the ass who loves disagreeing with me, so I recommend bringing popcorn. The details are here.
Commenter Zanshin returned to expand on his answer to the hypothetical I offered a Boy Scout troop based on one of my late, lamented professional theater company’s many dilemmas over the years. Here is the situation again…
The Option
Your professional theater company has limited funds, so it offers its actors an option. They may choose a flat fee for their roles, or get a percentage of the show’s profits, if there are any, on top of a much smaller base fee.
The company just completed an extremely profitable production, the biggest hit your theater has ever had. Nine of the show’s ten cast members chose the percentage of profits option, a gamble, because most of the shows lose money. One, the star, who you know could not afford to gamble, took the flat fee for the role. After the accounting for the production is complete, you realize that every member of the cast will make $1000 more than the star, because of the show’s profits.
Question 1: What do you do?
Give him the extra $1000. It’s only fair.
Pay him the flat fee. A deal’s a deal.
Question 2: You remount the production, and the exact same thing happens. The actor chooses the flat fee, the show is again a huge money-maker,,and the rest of the cast will make much more than him because they chose the percentage. Do you give him the extra amount again?
No. Now he’s taking advantage of me.
Yes. Nothing has changed.
You can read the initial responses here, and check the poll results.
Here are my reflections on this ethical (hypothetical) issue.
Question 1: Some personal background influencing my thinking: In the early years of my career I worked at a small company (about 40 employees). After having worked there for 2 years the owners sold the company, probably for a very good price, because they decided to give every employee about $ 200 for each year that he had worked with the company. Some of my colleagues worked with them for 15 years and more.
For me it would be a nice $ 400 but to my surprise I received $ 1.000 with a handwritten note which stated something like, “We’ll give you $600 extra because we are very pleased with your performance with us. Please do not discuss this with your colleagues.”
Back to the question.
I would go for a third option. First, Pay him the flat fee. A deal’s a deal.
But at the same time, give him in some personalized way, about $500 extra.With personalized I mean, fitting the situation. Why couldn’t he gamble with his reward? For instance, his car is broke, he needs it very bad for whatever reason. Offer to pay a part of the bill, etc.
Question 2: In my opinion the set-up of the first situation (question 1) was already tainted. Just as we expect of journalists that they don’t “interview people who are drunk, drugged, impaired, or not in a mentally or emotionally stable state.” one should also not ask an employee who you know could not afford to gamble to just do that, gamble with his income. Continue reading →
While the Alamo was under siege, the provisional Texas government organized at Washington-on-the-Brazos. On March 2, the convention declared independence and the Republic of Texas was born, at least on paper. The Alamo’s garrison showed its support for independence from Mexico by sending its own delegates to the convention.While they were unaware that Texas had declared independence, the roughly 200 Alamo defenders stayed at their post waiting on help from the settlements. Among them were lawyers, doctors, farmers and a former congressman and famous frontiersman from Tennessee named David Crockett. While the youngest was 16 and the oldest defender was Gordon C. Jennings, age 56, most defenders were in their twenties. Most were Anglo, but there were a handful of native Tejano defenders as well. Legendary knife fighter and land speculator James Bowie was in command before falling ill and sharing duties with Travis. Several women and children were inside the Alamo, including 15-month-old Angelina Dickinson. Just before the final battle, Travis placed his ring around her neck, knowing she would likely be spared. One of the last messages from the Alamo was a note from Travis asking friends to take care of his young son Charles.
The final attack came before dawn on March 6, 1836. As Mexican troops charged toward the Alamo in the pre-dawn darkness, defenders rushed to the walls and fired into the darkness. Travis raced to the north wall but was soon killed. Bowie was most likely killed in his bed, while reports differ as to Crockett’s death. Many believe Crockett survived the initial attack but was put to death by Mexican soldiers soon afterward.
Mexican soldiers breached the north wall and flooded into the compound. The fierce battle centered on the old church, where defenders made a last stand.
BEXAR, Texas, March 6, 1836 — Alas, alas! Forever more, the name of the Alamo shall stand alongside that of Thermopylae in the annals of history as a tale of unmatched bravery to be handed down from generation to generation.
The bastion of Texas Liberty has fallen, and to a man, Lt. Col. William Travis and his fellow defenders — like the immortal 300 Spartans — have been martyred.
After withstanding an unrelenting siege of twelve days’ duration by one of the mightiest armies ever assembled on this continent, the walls of the old mission that had housed Travis (a man as brave as the fabled King Leonidas), Col. James Bowie, the Hon. David Crockett and some 200 other defenders were breached before the sun rose to-day.
Savagery was unleashed therein as a juggernaut orchestrated by the modern-day Xerxes, Mexican Gen. Antonio López de Santa Anna, swept over the Alamo….
Since I was a small boy, this episode in American history moved me more than any other. It still does. I first learned about the Alamo when I watched Fess Parker as Davy Crocket, swinging his rifle like a baseball bat at Mexiacn skulls, the last man standing as behind him we could see more of Santa Anna’s soldiers pouring over the wall. We never saw Davy fall—my dad explained that this was appropriate, since nobody is sure how or when he died, unlike Travis and Bowie, and the last verse of the Ballad of Davy Crocket played…
His land is biggest an’ his land is best from grassy plains to the mountain crest He’s ahead of us all meetin’ the test followin’ his legend into the West Davy, Davy Crockett, king of the wild frontier!
The politics and complexities of the Texas war of independence don’t alter the essential facts: a group of men of different backgrounds, under the command of three prototypical American figures—the pioneer (Crocket), the settler (Bowie), and the law-maker (Travis), all of whom were trying to recover from dark periods in their lives—chose to make the ultimate sacrifice for a cause they believed in fervently enough to die for, in the company of others who felt the same. It was, after all, the perfect ethical dilemma, the choice between an ethical act for the benefit of society and a non-ethical consideration, the most basic one of all: staying alive. They all had the same choice, and rejected life for a principle.
That’s what I remember about the Alamo.
2. There is hope. Once again, I gave a 90 minute presentation to a Boy Scout troop and parents last night, and challenged them this time with several hypotheticals that Ethics Alarms readers would recognize, such as this one, the plight of Ryan Seacrest and those who snubbed him on the red carpet, the “Mrs. Miniver” flower show, and this one, from personal experience, which set off the most lively debate of all:
The Option
Your professional theater company has limited funds, so it offers its actors an option. They may choose a flat fee for their roles, or get a percentage of the show’s profits, if there are any, on top of a much smaller base fee.
The company just completed an extremely profitable production, the biggest hit your theater has ever had. Nine of the show’s ten cast members chose the percentage of profits option, a gamble, because most of the shows lose money. One, the star, who you know could not afford to gamble, took the flat fee for the role. After the accounting for the production is complete, you realize that every member of the cast will make $1000 more than the star, because of the show’s profits.
Question 1: What do you do?
Give him the extra $1000. It’s only fair.
Pay him the flat fee. A deal’s a deal.
You can weigh in:
Question 2: You remount the production, and the exact same thing happens. The actor chooses the flat fee, the show is again a huge money-maker,,and the rest of the cast will make much more than him because they chose the percentage. Do you give him the extra amount again?
No. Now he’s taking advantage of me.
Yes. Nothing has changed.
As before, the approximately 50 11- and 12-year old boys were astute, serious, thoughtful, and gutsy, and their ethical instincts were superb. Continue reading →
Night commenter Zanshin—he is one of the participants whose commentary frequently greets me in the morning–delivered a fascinating exercise expanding on my post about students in crisis situations defaulting to texting and social media rather than actively considering survival and defense alternatives. He was responding to yeoman commentator Chris, a teacher, who appeared to take deep offense at my suggestion that the texts of the Stoneman High School students reflected an unhealthy obsession with electronic devices rather than a healthy acculturation in self-reliance and fortitude in the face of danger.
I’ll mention here what I have said in the relevant comment thread: I know the issue flagged by commenter (and also a teacher) Andrew Myette was not the one I wrote about based on the link he sent me, but my job is to get everyone thinking about values and ethics even when it hurts, and I knew this angle would be especially uncomfortable to explore.
I can’t speak for Jack, but I sure can come up with,
a specific action the students could have taken that had a strong likelihood of being a better alternative than staying where they were.
Disclaimer 1. The text below is a possible scenario for a fictitious class involved in a school shooting. This is in no way intended to criticize schools, teachers, students and others who have been confronted with real school shootings.
One specific action could be … Oh, this is so good; this one is for you Chris … Haven’t you seen MacGyver? I believe he was part of (y)our generation. He would be so proud of this fictitious class who by relying on their unconventional problem-solving skills saved not only theirs but also other lives.
The teacher and about 5 of the strongest kids, may be members of the wrestling club, and yes, someone like Mack Beggs, who was born female and is transitioning to male while taking steroids, can also participate.
The entrance, the closed door is the one spot where one can get very close to the shooter if he/she tries to get in. That’s his/her vulnerable spot. So, the other kids hide in the safest spot. But the ‘welcoming committee’ stands on both sides of the door. With all the weapons and shields they can garner. Sticks and stones, a sharpened pencil, a can with hot water, pepper spray may be, certainly some chairs and tables. [I am here assuming the door opens to the outside.] On one side of the door you stack a few tables with one of the smaller kids on top with the can of hot water or a bag with the content of the waste bucket or what-ever one can throw on him from above (and that will not endanger the attackers on the ground).
On the other side of the entrance one of the kids has a broom. Continue reading →
Many years ago, indeed, decades ago, I had a very traumatic and unpleasant experience. A very gay friend, an actor, called me to ask me to do a favor for him. He had been invited to a formal event by another actress we both knew. He didn’t know her as well as I did, but she was kind of pathetic and needy, and my friend, who in every respect other than his sexuality would be a dream date (among other talents, he danced like Fred Astaire) said he would be able to endure the evening only if they doubled with me and my current girlfriend. I agreed, pending my date’s approval, which I received.
The evening was a humiliation that I will never forget.
My date, it turned out, had an strange and unrequited crush on my gay friend. I spent most of the night watching her spin around the dance floor with him—she was a professional dancer—while I sat with my friend’s supposed date, who sat making moon eyes at me. I danced with her a bit, though she was an even worse dancer than I was. I wanted to die. Not every guy gets his date charmed away by someone as flamboyantly uninterested in woman as Liberace.
The worst was yet to come. My date decided to stay the night with my gay friend—I forgave him, as he was genuinely guileless, but not her—and I took his date, now attached to me like a barnacle, which she resembled but with red hair, back to her apartment. I walked her to her door, and then, without warning, she reached up (I was about a foot taller than she), grabbed me by the neck, violently pulled my head down, kissed me, and stuck her remarkably long tongue so far down my throat that I nearly choked. I remember that my eyes were wide open, and so were hers, staring back at me like the Devil does to Mia Farrow while he’s raping her in “Rosemary’s Baby.” (Or so it seemed at the time. To be honest, her eyes were scarier than Satan’s. ) That image haunted me to for a weeks, and now I’m remembering it again. ARRGHHH! THANKS, Ethics Alarms!
I never spoke to her after that night.
Fortunately, I did not become pregnant.
Your Ethics Alarms Ethics Quizof the Day, Harvey Weinstein Ethics Train Wreck edition:
1. Preet Bharara, the ex-U.S. attorney fired by the Trump Administration, tweets…
Quick reminder: something doesn’t have to be illegal for it to be foolish, wrong and un-American.
True. When Donald Trump, Jr. was informed that a Russian lawyer wanted to meet with him to pass along damaging information about Hillary Clinton, he should have gone to the FBI immediately, because this could have been indicative of a national threat. Instead he said “Whoopie!” or words to that effect. Moron.
But we knew that.
*Notice of Correction: In the original post, I erroneously stated that Bharara had joined Mueller’s team investigating Russian interference with the election. That was incorrect. I apologize. I was confused by this headline from the Washington Examiner: Special counselor adds former Preet Bharara prosecutor to Russia probe: Reports. It’s a bad headline, but I should have read the whole article. Careless.
2. Similarly, if Danny Jr told Kushner and Manafort what he was told the meeting would be about, THEY should have told him that the meeting was a bad idea, and to report it. They are slime-bags, and none too bright either.
We knew that, too.
3. It may be pure moral luck that this didn’t turn into a serious breach of election laws. But the fact is that no information changed hands, as far as we know. There was no “collusion,” which isn’t a legal term anyway.
4. The New York Times, from its good side, actually detailed the legal realities of the case, which ironically show how absurdly over-heated and misleading its own coverage is. The Times consulted with legal experts who said,
The events made public in the past few days are not enough to charge conspiracy. Renato Mariotti, a former federal prosecutor said the revelations are important because if further evidence of coordination emerges, the contents of the emails and the fact of the meeting would help establish an intent to work with Russia on influencing the election…at least on Donald Trump Jr.’s part.
But as has been the situation throughout, the episode is still waiting for real evidence of genuine collusion between the Russians and the Trump campaign, and this wasn’t it. The anti-Trump mob, in the news media and out of it, is so, so eager, so desperate, to prove sanctionable wrongdoing that it is pouncing on everything that contains a shred of hope.
There has to be an underlying federal offense that is being conspired to be committed. So far, there is no evidence of that, and the aborted meeting with the Russian lawyer didn’t come close.
If the e-mails released yesterday specified that what was being offered had been obtained by an illegal computer hack, that would be enough. They didn’t. Continue reading →
[The hypothetical is inspired by two recent events I witnessed in the past week.]
Preface: The state requires new bar admittees to take a one-day course covering the basics of practicing law in the jurisdiction—how the courts work, special procedural rules, unique aspects of local practice, horror stories, the works. They must complete the course or they can’t be certified, and the court-ordered series of lectures and presentations is held only once a month.
A company runs the mandatory curriculum under contract to the state, and is required to confirm in writing to the courts that its requirement have been fulfilled. One key requirement is that every attendee must be present for every minute of the presentations, except for brief emergencies, like using the rest rooms. The course administrators carefully monitor attendance. The published description of the course directs that once the course begins, theoretically at 9 am sharp, no late-comers will be admitted.
As you might imagine, missing the session can be quite a hardship, as participants often live and work in other jurisdictions.
The Event: It is 9:08 am on the day of the program, and the introductory video that begins the orientation is almost finished. It consists of interviews with members of the bar about the benefits of practicing in the state, the importance of ethical practice, etc: to say it is not substantive is an understatement. Literally nothing that is said and shown in the video is anything but boilerplate.
A young man, sweating profusely, bursts in the door, looking unhappy and desperate. “I’m sorry I’m sorry!” he babbles. He says that he had to drive up from a neighboring state and had an accident. “Can I still get in?” he pleads.
The male staffer responsible for the session chats briefly with an associate. The program was late starting, and this late arrival will miss nothing if he goes in now. “All right,” the honcho says as the young man heaves a sigh of relief. “I shouldn’t do this, but you haven’t missed anything.” As he goes into the auditorium, one can here the opening remarks of the first speaker, a judge. It is now 9:12 am, and another young man bursts through the door on a dead run. “My crazy cabbie’s been driving me all over the city for an hour!” he shouts. “I flew in last night from Arizona! Please, please, don’t make me do this again…I barely was able to afford this trip.” The administrator is wondering if he had seen the previous guy go into the auditorium. He’s heard this judge’s spiel many times: all that has been missed, to be honest, are a few (lame) jokes. “All right, all right, get in there quick!” he tells the new supplicant. “I’ll finish your paperwork during the break!” The kid looks like he’s going to cry, he’s so relieved.
I’m there, watching this (I’m on the program) and say to the administrator, “I bet this happens every time.” He says, “It does. I know that nobody misses anything that isn’t in the printed materials until 9:15, so it’s a hard stop after that.”
And another late arrival bursts through the door. It’s a bit after 9:14. The staffer has just told me that the final final deadline is 9:15, and it’s not that yet. This poor guy is bleeding through his pants, has a big bruise on his face, and is saying something about a bicycle accident. By the time he gets himself settled—he is told that there is no time to clean up—it’s past 9:16. He starts toward the auditorium door as the other staffer says, “OK, that’s IT,” and starts to take the registration materials and lists away….just a very stressed young African-American woman enters, in plenty of time to see the bicycle rider, who is white, enter the auditorium. I can hear the judge through the open door. He’s still telling jokes, longer this time than usual.
Issues and Observations
1. The young woman was not admitted, and told that she had to come back another month. She too was from out of state. She also had a legitimate-sounding excuse.
Was that fair to her?
Should it have mattered that the program had not yet reached a serious stage?
She was told that 15 minutes was the absolute, unwaivable deadline. That was true, but it was not the deadline the company was contracted and pledged to enforce. That deadline was 9:00 am.
2. Should the explanations used by the latecomers play any part in the decision to allow them in? Why? Continue reading →
As promised, here are some proposed lines regarding the ethics quiz on the lottery-enriched brother and whether his financially-challenged sibling should ask for a cut—and had a right to expect one. (Part 1 of the “Further Thoughts” is here)
All of the following assume that the lottery-winner does not have a personal emergency or crisis of his own that would require him to spend all or most of the money.
1. The wealthy brother is ethically obligated to offer financial assistance, if he can afford it without excessive hardship, without being asked, if his brother or his brother’s family is facing a health crisis of other catastrophe.
This is true regardless of whether his new financial resources come from luck, planning, work or skill, and regardless of how much money he has. Offering a loan rather than a gift is still fair and ethical. Charging interest under these circumstances is not, unless the poor brother has a record of not paying back earlier loans.
The last ethics quiz posed the questions of whether a financially struggling (that is, like most people) brother [NOTE: In the earlier version, I incorrectly said they were twins. Why, I don’t know, except that it makes the set up more perfect. I apologize for the error. It didn’t change the issues any, or the commentary.] in his Sixties should suggest to his lottery-winning brother, now 50 million dollars richer, that he could use some of that excess cash…and whether the brother would be unethical to refuse.
The more I think about it, the more I am sure that Slate advice columnist Emily Yoffe was answering a fictional hypothetical carefully devised to coax out the answer it did. I write these things for a living, and the brothers element is suspicious. The idea was to emphasize the perception of unfairness: here we have two genetically similar human beings raised with the same advantages and disadvantages, not just metaphorically “created equal” but equal in fact. How cruel and unfair that, in “Dear Prudence’s” words, “your brother-in-law, through no effort of his own—save the purchase of a quick pick—was smiled on by fate and now enjoys luxuriant leisure. Especially since the two brothers suffered from a start in life that would have crushed many, it’s disturbing that the lottery winner hasn’t been moved to share a small percentage of his good fortune so that his brother doesn’t spend his last years scrambling to meet his basic needs.”
I didn’t exactly give my preferred answer to the quiz, but I did suggest that Yoff’e’s answer and the orientation of the questioner were redolent of the prevailing ethos of the political left. This was met with some complaining in the comments, but come on: “it’s disturbing that the lottery winner hasn’t been moved to share a small percentage of his good fortune so that his brother doesn’t spend his last years scrambling to meet his basic needs” would be a great Occupy Wall Street poster if it wasn’t so long, and it perfectly states the ethically dubious mantra we can expect from Bernie, Hillary or Elizabeth and probably any other Democrat who is selected to be called “a lightweight” and “a loser” by Republican nominee Trump. In fact, I think this hypothetical would be a great debate question….and better yet if we explore some of the variables.
Ethics Alarms 