The American Bar Association Has Lost Faith In Professionalism, It Seems.

For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.

Now the American Bar Association has apparently decided that it was all a myth. In  Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.

“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”

The opinion breaks possible personal relationships into three categories:

Continue reading

Surprisingly, Many California Lawyers Want To Have The Option Of Having Sex With Their Clients

It's all your fault, Arnie...

It’s all your fault, Arnie…

For most of the last century, sensible and rational lawyers accepted that exploiting the attorney-client relationship to have sex with their clients was unprofessional and unethical, without needing a formal rule to tell them the obvious. Then along came Steven Bochco’s popular TV drama “L.A. Law,” the over-heated saga of a high-rolling Los Angeles law firm and its libidinous lawyers. Most libidinous of all was domestic law specialist Arnie Becker, played by the then-blonde and dashing Corbin Bernsen. Arnie habitually slept with his clients when they were wealthy, sculptured, beautiful trophy wives trying to shed their husbands. This was not the image that the family law bar wanted to see broadcast to America, so lobbying efforts were undertaken in many state bars to formally declare Arnie’s nocturnal client conferences unethical, as they undoubtedly were.

California, being partially at fault for the uptick in the public’s false belief that lawyers use their practice as a virtual dating bar, was among the first states to pass an “Arnie Becker Rule,” though it had company, like Oregon, which amusingly anticipated Bill Clinton by including a strangely specific definition of what sexual intercourse was, and New York, which narrowly limited its prohibition to Arnie Becker and domestic relations lawyers like him. Other jurisdictions demurred, as well as the American Bar Association, which is supposed to seek consistency in the legal ethics rules. California’s new rule was one of the more wishy-washy ones, with Rule 3-120 stating that Continue reading

Is It Ethical For Professors To Date Students?

teacher-student datingProfsBlog asks the question regarding law professors and law students, but the question doesn’t change by narrowing the definition. The question is really, and only, “Is it ethical for teachers to have romantic relationships with students?” The answer is, has been, and forever shall be, “No.”

The answer to an ethics question sometimes becomes obvious when it is apparent that every argument on one side is either a logical fallacy, an unethical rationalization, or the application of an invalid ethics principle. Such is the case here, and thus I somewhat question the motives of the author of the post, Kelly Anders. Wishful thinking, perhaps? Asking the question creates the illusion that there is a real controversy. In this case, there isn’t.

I addressed this question a long time ago, in an early post here barely seen at the time but among the most frequently visited since. I wrote:

[P]rofessors [are] obligated to maintain a position of authority, objectivity and judgment as mentors and teachers of the whole student body, and [have] a duty to their schools not to allow their trustworthiness to be undermined by having intimate relationships among the same group that they [are] supposed to be supervising and advising. Dating a student is a professional breach of trust, and one that adversely effects the integrity of the entire educational institution…. The appearance created when a supervisor/manager/leader indulges in intimate relations with someone over whom they have authority, status and power—and every professor has authority over every student, in class or out— undermines the institution and the profession, by sending the false message that such relationships are standard, approved, and implicitly desirable in the culture where they occur…A professor has a potential teacher-student relationship with all students at a university, not just those in his or her classes.

Dating a student who happens not to be in one of those classes is what lawyers call “a distinction without a difference.” Many students and professors will reasonably assume that the pairing arose out of the student-teacher relationship, and in some ways it almost certainly did. A teacher always has superior power over any student by virtue of his or her position of authority, and it is an abuse of that power to use it to entice students into dates or bed…

[It] is naive to ignore the extended conflicts such relationships create. Might the professor’s best friends on the faculty be more generous when grading their friend’s significant other if he or she is one of their students? Will the professor consciously or subconsciously be easier on the friends of his student lover if they are in his class? The fact that the question can be asked shows that the situation should not occur where it can be asked.

Students, all students, must be off-limits as romantic partners for professors and administrators in universities, regardless of what rules are in place.Professors who date students risk their jobs because a student body is not their sexual smorgasbord, and it is a breach of trust and duty to treat it like one.

I wouldn’t change a word, except that typo I just noticed, and just fixed in the original. Nor is anything I wrote then revolutionary or new. These are the realities of authority, professionalism, leadership and power. It’s just that sometimes people really, really wish they were not. Continue reading

Love Your Lawyer? Bad Idea. Love Your Client? Even Worse.

This is all your fault, Arnie!

A Connecticut lawyer under fire for commencing a lawyer-client relationship with a woman with whom he was romantically involved made the novel argument that it is good to be in love with your client.  This indicates a profound misunderstanding of human nature and the nature of a lawyer’s duties.

Almost ten years ago, the American Bar Association recommended that state bars include a direct prohibition against lawyers having sexual relations with their clients, and the majority of the states did so. As I have mentioned before, it’s a dumb rule, too broad and too narrow simultaneously, a classic example of how some kinds of unethical conduct do not lend themselves to precise rule-making.  The main problem with the no-sex rules is that they are unnecessary. The legal ethics rules are replete with exhortations to maintain objectivity, independent judgment and to avoid conflicts of interest. Common sense suggests that it is irresponsible to confuse one relationship by adding another; professional standards dictate that combining a professional relationship of independence and with romantic relationships is wrong.  As the D.C. Bar’s Rules of Professional Conduct point out in its comments to Rule 1.7, Conflicts of Interest: Continue reading

George Will Is Conflicted, and Telling Us That He Is Doesn’t Cure It

Is George Will's wife making him pull his punches?

Conservative columnist George Will has a conflict of interest problem not of his making. A regular, and superior, commentator on politics and current affairs in op-ed pages and on television, Will’s objectivity and independent judgment is apparently compromised by the fact that his wife is an advisor to the presidential campaign of Texas governor Rick Perry

Initially, Will took the position that his wife’s business and his were independent, and that his integrity should be presumed based on his long and distinguished record as a columnist. But the Washington Post ombudsman, among others, declared that Will’s readers needed to be able to make their own judgment about his objectivity, and lately Will has been issuing formal disclaimers whenever he wades into Republican presidential politics. Most recently he did this while slamming New Gingrich—accurately and with precision—for taking a cheap shot at Mitt Romney regarding Romney’s work at Bain Capital.  Will wrote: Continue reading

Ethics Dunces: The Nevada Ethics Commission, Which is Pretty Depressing.

An X-Ray of Caren Jenkin's head, ethics sector

Here at last may be the answer to the riddle of why state ethics commissions have so little effect on the persistent problem of unethical government.

The people who make up the membership of such commissions may not know the first thing about ethics. Take Nevada, for instance:

To celebrate the 35th anniversary of the Nevada Ethics Commission, its executive director, Caren Jenkins, organized a party at a Carson City restaurant.  She invited current and former commissioners and staff, and also the state’s top elected officials, whose conduct is reviewed by the commission, which can fine them substantially or even seek their removal from office and prosecution for violating state ethics laws.
The invitation included a request for $33 to pay for the event.

“It never even crossed my mind that this would be seen as questionable,” said Jenkins. Never crossed her mind. eh? The event has elected officials whom the commission has to objectively oversee socializing with their state-appointed watchdogs. The Ethics Commission chair solicited money from officials who must depend on the commission for discretionary ethics calls. Jenkins has apparently never heard of appearance of impropriety, conflicts of interest, or interference with independent judgment. The Chair of the Nevada Ethics Commission has ethics alarms about as well-maintained as those of Charlie Rangel or Marion Barry. And since none of her fellow members bothered to raise any objections over her plan, their ethics alarms are in similar disrepair.

Unbelievable.

Or all too believable, come to think of it.

Unethical Quote of the Week: Detroit News Business Editor Sue Carney

"The new model is so ugly that...What's that? They give us HOW much ad money? Uh..hey, what a GREAT looking car!

“We made several changes to the online version of Scott’s review because we were uncomfortable with some of the language in the original. It should have been addressed during the editing process but wasn’t. … the changes did not fundamentally change the thrust of Scott’s piece … a car dealer raised a complaint and we took a look at the review, as we would do whenever a reader raises a flag. The changes were made to address the journalism of the piece, not the angst of a car dealer.”

 

Sue Carney, business editor of The Detroit News, lying her head off to rationalize a disgraceful instance of a newspaper changing its content—a car review— to serve the interest of an advertiser.

How often does an ethical news publication publish an article then go back after it has run and change the text, over the objection of the reporter who wrote it, not correcting an error but softening an opinion? Answer: never, by definition. Continue reading

Texas Lawyers And Sex: Not Horny, Just Wise

"Now about my fee...."

Texas lawyers have voted down a proposed ethics rule that specifically condemned attorneys having intimate relations with their clients. Naturally, the media will represent the decision as the predictable reaction of a bunch of high-rolling, fun-loving Texas legal horn-dogs to people trying to spoil the perks of their job; even the legal media has settled on a misleading headline:  “Texas lawyers reject ban on sex with clients.” But Texas lawyers don’t think that sex with clients is ethical, or want it to be ethical. Like the attorneys in many other states, they just think having a rule on this topic is bad idea. And they are right. Continue reading

“The Good Wife” Ethics: Sex With Clients Edition

Diane, Diane..what were you thinking?

Last night’s episode of TV’s smartest legal drama since the 1960’s, CBS’s “The Good Wife,” dealt with the “no sex with clients” ethics rule adopted by most states (but not Washington, D.C.!) in a continuing subplot about the budding romance between firm tigress-partner Diane Lockhart (Christine Baranski ) and ballistics expert Kurt McVeigh, played by Gary Cole. In the episode, entitled “Silver Bullet,” Lockhart decides to represent McVeigh when he is sued for millions.

That’s her first ethics mistake. Continue reading

GlaxonSmithKline Inspires a Fun Game For Your Holiday Party: “Forcast That Ethics Scandal!”

Almost all ethics scandals and examples of outrageous unethical conduct are thoroughly predictable, whether they involve individual, organizations or institutions. The most obvious proof of this is in politics. Once we consider past patterns, current conditions, institutional habits and what we know about human nature, the question when a new political party takes over isn’t whether there will be instances of bribery, influence peddling, self-enrichment, and conflict of interest, but only which elected leaders will be caught at it. Sometimes even that part is easy: everyone should have been able to guess, long before they occurred, that Tom DeLay’s ethics-free philosophy of politics as warfare would lead him to commit serious misdeeds, just as the odds against former Florida Rep. Alan Grayson running a fair or civil campaign for re-election were prohibitively high. Similarly, sports scandals can usually be seen coming a long way off. Once New England Patriots coach Bill Belichik was caught making surreptitious videos of his team’s opponents’ practices, it was easy to guess that he wasn’t the only one, and that since both he and his team were so successful, it would be only a matter of time before a similar incident came to light. And it did, last week.

As I look through various Ethics Alarms posts, it is striking how many of them could have been written in advance, in fill-in-the-blank format. All you need to do is identify an industry with a history of ethics problems, a weak ethics culture, a trusting, under-informed audience, the potential for increased profit, power or influence, and a large population of corruptible, lazy, incompetent, venal, ambitious or cowardly allies. I’m sure a computer program could be developed, but for this holiday season, why not forecast next year’s ethics scandals as a party game? Challenge your guests: Which TV reality show will be shown to have completely manipulated “reality”? Which revered sports figure will be disgraced in a sex or drug scandal? Which Wall Street firm will be caught violating the “sacred principles” posted on its website? Which school will suspend or expel a student for violating the letter of an overly broad and horribly-written rule without actually doing anything wrong? Which universally accepted scientific research will turn out to be the result of manipulated data? Which embarrassments of the Obama Administration will only be reported by Fox News, and which outrages committed by Republicans will the same network ignore?

And, of course, where will TSA employees put their hands next?

This occurred to me as I read about the recent Big Pharma-manipulating-medical-practice scandal, involving drug giant GlaxonSmithKline, while slapping my forehead and shouting, “Of course! This was the logical next step!” Continue reading