integrity

Is Continuing Legal Education A “Farce”?

/ Jack Marshall / 17 Comments

Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.

AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all,  charge for.

Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.

Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.

Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):

Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.

To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!

Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.

This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!

Continue reading →

Morning Ethics Warm-Up, 10/26/2018: ‘Bombs,’ Bicycles And Bullying

/ Jack Marshall / 93 Comments

Good morning!

I need Jimmy today. (Bing’s on this one too…)

1. They’re NOT “bombs.” I urge everyone to call their friends on this. Until it is established that in fact the “suspicious packages” (the FBI’s current description) or the “potentially destructive devices” can blow up and that they were intended to blow up, referring to them (as the New York Times has done) as “pipe bombs” and the mysterious asshole who sent them as “the bomber” is misleading and, in many cases, deliberately inflammatory. Cut it out. Nor are the mailed whatevertheyares “attacks.” Nobody has been “attacked” until the intent to harm them has been established, and it hasn’t been.

This is driving me crazy, in case you can’t tell.

The news media obviously wants these to be bombs, wants the sender to be a deranged Trump fan, hell, they’d love it if the sender was Trump himself. So they can’t help themselves, apparently, in jumping the gun and dishonestly reporting what is still very much in doubt. Personally, I would love to have it determined that the perp is a “resistance” member pulling a false flag operation, just to teach the news media a lesson, not that they are capable of learning it.

2. Trump’s Tweets. CNN and MSNBC are melting down with faux fury over this morning’s Trump Tweet, which said,

Funny how lowly rated CNN, and others, can criticize me at will, even blaming me for the current spate of Bombs and ridiculously comparing this to September 11th and the Oklahoma City bombing, yet when I criticize them they go wild and scream, “it’s just not Presidential!”

Notes: Continue reading →

Conclusion: If #MeToo Has No Integrity, Then It Is Doomed, And Deserves To Be

/ Jack Marshall / 31 Comments

When the #MeToo movement emerged, the idea appeared to be that women (and men!) should speak out about sexual assault and sexual harassment, that powerful people should not feel entitled to take physical liberties with others, and that the culture needed to unequivocally and clearly condemn such conduct. Like most abstract concepts, it sounded good in theory, until—

—the question about what constituted sexual assault and harassment remained unanswered, because in so many cases it is a matter of perception and perspective.

—basic due process and the presumption of innocence were ignored, minimized, or jettisoned entirely, turning the accused into victims themselves

—Democrats sought to weaponized the movement politically, raising questions about motive, equal justice, and bias, and turning what should have been a bi-partisan movement into a cynical partisan one.

—The “women must be believed” mantra, discriminatory, unjust and ridiculous on its face, became part of the narrative and burst into open misandry and outrageous double standards.

Then the Harvey Weinstein Ethics Train Wreck collided head-on with the Brett Kavanaugh Ethics Train Wreck, and here we are among ethical and cultural carnage.

Good job, everybody!

Now here’s where we are: Continue reading →

Ethics Quiz: The Good Hoax?

/ Jack Marshall / 83 Comments

A scholarly journal called “Sex Roles” published what t thought were the results of  a two-year study involving “thematic analysis of table dialogue” to uncover the mystery of why heterosexual men like to eat at Hooters. A journal of feminist geography, whatever that is, featured research om “human reactions to rape culture and queer performativity” at dog parks in Portland, Oregon. Another paper was deemed worthy of publication in a journal of feminist social work:  titled “Our Struggle Is My Struggle,” it merged current feminist cant into passages lifted from Hitler’s “Mein Kampf.”

Last week, the three authors of these and many other hoax papers  revealed in an article for the online journal Areo explaining that their fakery was part of a project to expose the lack of integrity in academia. “Scholarship based less upon finding truth and more upon attending to social grievances has become firmly established, if not fully dominant, within these fields,” they wrote. James A. Lindsay, Helen Pluckrose and Peter Boghossian  (above) said that they wrote 20 fake scholarly papers and had several accepted and published in journals. The embarrassed publications rushed to retract the fake scholarship…

…while many scholars praised the hoaxers. for casting a harsh and revealing light on the “peer-reviewed research” scam.

Your Ethics Alarms Ethics Quiz Of The Day:

Was the hoax project ethical?

Continue reading →

I Break My Own Rule And Publish A Social Media Meme…

/ Jack Marshall / 15 Comments

Here it is:

The Ethics Incompleteness Principle holds that ethics rules don’t always work in anomalous situations. An Ethics Alarms rule is that internet memes are simple-minded agitprop, lazy ways for the uninformed and the critical thought-challenged to circulate pre-digested talking points and partisan distortions. I hate them.

But I was actually beginning work on a flow chart of the constantly changing arguments against the confirmation of Brett Kavanaugh, and this magically appeared. (Pointer: Instapundit)

It’s perfect, fair, and true.

Bravo.

Look! An Ethics Dunce Mob: 2,400+ Law Professors

/ Jack Marshall / 73 Comments

“My mind may be mush, but I can get 2400 colleagues to agree with me anyway!”

In the New York Times: The Senate Should Not Confirm Kavanaugh Signed, 2,400+ Law Professors

One of the most disillusioning aspects of the epic 2016 Post Election Ethics Train Wreck, the worst and most damaging of them all, has been the serial disgrace of one profession after another as they abused their public trust, ethics codes, core values, and expertise. Psychiatrists, physicians, lawyers, journalists, academics, educators, judges, elected officials, pundits, journalists, law enforcement officials and more: so many have sided with partisan mobs when the nature and mission of what makes them valuable society demand that the professionals  remain neutral and objective. Law professors have been particularly fond of disgracing themselves since President Trump’s election, and almost all of them are Democrats,  so seeing over 2400 of them sign a statement that can stand as a warning to all against taking pronouncements from this particular group of  legal academics seriously is hardly a shock.  It’s still discouraging.

What is unethical, as well as dumb, about this stunt, for stunt it is? Let us count the ways.

1. It is grandstanding and virtue signaling designed to mislead the public, and seed further division, if that’s possible. Every one of these professors can have their own individual opinion about the Kavanaugh nomination, but it is no better, or more influential, nor should it be, than yours or mine. They seek to increase their influence by amassing thousands of personal and biased opinions into a single loud one masquerading as a professional opinion, which it is not.

2. The number 2400 is inherently misleading. This isn’t close to a majority of the law professors in the country. It’s not close to a majority of the Democrats and progressives in the profession. Most of the public, however, doesn’t have continuing relationships at law schools, haven’t worked for them, haven’t graduated from one, or taught at one, like, say, me. The petition is designed to deceive. There are more than 20,000 law professors in US Law schools. Now we know at least 10% appear to be unfit to teach law.

3. The letter is completely irrelevant. Nobody in the Senate cares what a group of liberal law professors want. No Senator is going to read this opinion and say, “Oh, no! I guess I better vote against Kavanaugh: a boatload of professors I’ve never heard of think I should!” Continue reading →

Morning Ethics Warm-Up, 10/4/18: On Baseball, Mocking Ford, Apologies, and “Tax Schemes”

/ Jack Marshall / 48 Comments

Good Morning!

[BOY its been hard keeping up on ethics blogging between air travel, a balky laptop, seminars, the new firm and, most of all, ushering the Red Sox to a World Championship. Yesterday was classic: I had multiple posts composed in my head, and literally was never able to find time to work on them. I’m sorry. I’ll figure it out…]

1 Baseball ethics: The exciting Cubs-Rockies Wild Card elimination game was set up by the Colorado 12-0 win over the Washington Nationals on the final day of the season. Thus the Rockies ended the season in a tie with the Dodgers on top of the NL West, requiring one of the two tie-breaking games on Monday. These were ratings bonanzas for baseball and the networks showing them, leading to conspiracy theories regarding that last Rockies victory.  Max Scherzer, arguably the best pitcher in the league, was supposed to start the game fr Washington, and if he had, its safe to say that the Rockies would not have won 12-0, if at all. Reportedly he wanted to start the game, but the Nationals decided late to start the immortal Eric Fedde. Were they trying to give the game to the Rockies? Did orders come down from MLB to tank?

The theory makes no sense, because the suits and networks are always rooting for the big media centers and their teams to make it to the World Series. The Dodgers, Red Sox, Yankees and Cubs mean big ratings, and the Rockies posed a threat to the Dodgers and ended up eliminating the Cubs. Nonetheless, a team like the Nats, out of the race, running out the string, should have the professional integrity to go all out to win when a game is important to its opponent.

2. I’m not going to demand an apology, but they still owe me an apology. The Hill is reporting that…

Congressional investigators have confirmed that a top FBI official met with Democratic Party lawyers to talk about allegations of Donald Trump-Russia collusion weeks before the 2016 election, and before the bureau secured a search warrant targeting Trump’s campaign.

Former FBI general counsel James Baker met during the 2016 season with at least one attorney from Perkins Coie, the Democratic National Committee’s private law firm.

That’s the firm used by the DNC and Hillary Clinton’s campaign to secretly pay research firm Fusion GPS and Christopher Steele, a former British intelligence operative, to compile a dossier of uncorroborated raw intelligence alleging Trump and Moscow were colluding to hijack the presidential election.

The dossier, though mostly unverified, was then used by the FBI as the main evidence seeking a Foreign Intelligence Surveillance Act (FISA) warrant targeting the Trump campaign in the final days of the campaign.

This is not exactly surprising, but it ticks me off for personal reasons. Several left-leaning commenters here who I respected and gave a lot of attention, abandoned Ethics Alarms in high dudgeon because I continued to question the growing evidence that the entire Russian collusion investigation was rigged, partisan, illegal, and an effort to bring down an elected President using a corrupt and politicized FBI and Justice Department. Here was one exit speech, and from a friend:

“But I can’t allow my own tiny voice to be associated with this nonsense any longer. Being the “left” voice is one thing; being way out on the fringe is quite another, and I don’t think it’s me that has moved. I see far too many shades in our times now of McCarthyism (not Gene), George Wallace-ism, and autocracy. I’m deeply concerned about the continued health and well-being of our democratic institutions. I suspect Rod Rosenstein will soon have no recourse but to resign, and I’m doing something similar. I don’t want to be party to this hysterical of a dialogue (in my humble opinion).”

Continue reading →

And The ACLU Takes A First Class Seat On The Brett Kavanaugh Ethics Train Wreck. Of Course It Has. (The ABA Stayed In Coach)

/ Jack Marshall / 19 Comments

The American Civil Liberty Union has decided to make an “exception” to its supposedly unshakable policy of being non-partisan and non-political—Oh,  the pop-up fundraising appeal the group is currently showing on its website says to contribute to “stop Trump’s attack on civil liberties.” Then it vanishes, with the permanent text on the site staying abstract and without any overtly partisan slant.  Nice. And dishonest!—and announced its opposition to Kavanaugh’s confirmation.

This should not have surprised anyone, because the ACLU has become a sham organization, claiming to be non-partisan and apolitical while every day making it increasingly obvious that it, like so many organizations that take that pose (including virtually all of the mainstream news media), it is a fully committed ally of the Democratic Party. Nonetheless, there is always hope that at crucial moments in the nation’s history, organizations will find their soul, their guys and their principles before they seep away.

For this we need look no farther than The American Bar Association, another “non-partisan” group that habitually endorses Democratic Party agenda items that should not concern it at all. Its membership is overwhelmingly Democratic, and being that this entire section of the political spectrum is in the process of being ethically corrupted, many members, including members of its governing body, were prepared to turn on Brett Kanavaugh, a judge the organization had rated as very qualified for the Supreme Court, and recommend his rejection as a consequence of unsubstantiated, last minute allegations of sexual misconduct by an accuser dredging up dim memories from more than three decades ago. As a lesser tactic, many were in favor of bolstering the Democratic Party’s disingenuous call for an open ended FBI investigation, not because it is likely to clarify anything, but because it will accomplishe the Party’s stated objective since before Dr. Ford was persuaded, or pushed, to play the part of Anita Hill in this adaptation of “The Clarence Thomas Hearings.” They want to delay until after the November elections.

Thus it was that Robert Carlson, the latest Democratic Party contributor to lead the organization, wrote this letter on ABA letterhead, falsely stating that he was speaking for the ABA itself:

“The American Bar Association urges the United States Senate Judiciary Committee (and, as appropriate, the full Senate) to conduct a confirmation vote on Judge Kavanaugh’s nomination to the Supreme Court of the United States only after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.”

Rather than allow him to hijack its process and integrity, the ABA sent this letter to the Judiciary Committee, clarifying that Carlson was speaking for himself only:

Of course, if it were really a non-partisan, non-ideological organization, the ABA would be in the process of removing Carlson from office. In every organization, falsely using one’s post to imply organizational support of a personal view is a firing offense. Instead, the ABA took the face-saving measure of posting Carlson’s misleading letter (lawyers are prohibited from engaging in misleading conduct) under a link saying, “ABA President Calls For…” THAT’S deceit (lawyers are prohibited from engaging in deceit). Most readers will not notice the material distinction between the President of the ABA’s position and the official ABA position, and that’s just the way the association wants it.

Well, it’s not exactly integrity, but it’s a lot closer than what the ACLU has become. Continue reading →

Morning Ethics Warm-Up, 9/21/18: “Ho Ho Hey Hey!”

/ Jack Marshall / 31 Comments

Good morning!

1.  Oh! You’re bigots and fools, then! Got it. I was watching a mob of—I don’t know, feminists? The “resistance”? chanting yesterday at the Senate: “I believe Anita Hill! I believe Blasey Ford!” I believe that the only reasonable translation of this particular chant—all chants make protesters sound dumb, some chants more than others; at least this one doesn’t start with “Ho ho, hey hey!”—is “I believe whatever story supports my political agenda, and I believe people according to what they are, rather than based on any objective criteria!”

I guess it’s not sufficiently catchy.

2. In case you aren’t nauseous enough...Former NFL quarterback Colin Kaepernick will be one of the eight honorees of Harvard University for their contributions to black history and culture, the university announced yesterday.

Kaepernick, distinguished for his incoherent on field protest  during the national anthem, instantly setting off the NFL’s version of  #MeToo, as in “I want make my own pointless, annoying protest that I can’t adequately explain!,” thus costing the NFL fans and billions of dollars, will receive the W.E.B. Du Bois Medal from Harvard’s  Hutchins Center for African and African American Research. The deliberately divisive honor to Kaepernick, who favors socks with cartoons of pigs in police uniforms, is apparently the work of Henry Louis Gates Jr., director of the Hutchins Center and Barack Obama pal. You may remember Professor Gates as the race-baiting catalyst for Obama’s “beer summit,” after Gates impugned the character of a Cambridge police officer. No personal agendas here!

The award supposedly honors individuals who “Emerging from a variety of backgrounds and professions…represent the quest for knowledge, freedom of expression, and pursuit of truth that are foundational to black history and culture, and that were foundational to Du Bois as a thinker and activist.”

Yup, that sure sounds like Colin Kaepernick!

3. Ed Whelan, call your ethicist! Ed Whelan, an attorney and president of the conservative Ethics and Public Policy Center, upped the craziness quotient in the Kavanaugh confirmation process and took a First Class seat on the Brett Kavanaugh Nomination Ethics Train Wreck by announcing that Ford’s accusation from three decades ago was based on mistaken identity, and that another student, whom Whelan named and thoroughly doxxed, along with publishing his yearbook photo, was the real alleged assailant.

Well, you can’t just accuse a random private citizen of sexual assault, or even alleged, unsubstantiated sexual assault while a drunken high schooler. I know Ed went to Harvard College and Harvard Law School, but even then, he’s no idiot. I have to believe that this isn’t just an unfounded accusation, because  Ed knows that he’s asking for a lawsuit if it is. He wrote:

“By one week from today, I expect that Judge Kavanaugh will have been clearly vindicated on this matter. Specifically, I expect that compelling evidence will show his categorical denial to be truthful. There will be no cloud over him.”

Whelan has to deliver on a statement like that, or have his own reputation permanently scarred. The only explanation I can come up with is that Kavanaugh’s  twin has already agreed to admit to being at the infamous party and having some kind of episode involving Ford. Of course, there will be no reason to believe him, either.

Still, I may go to the Senate and chant, “I believe Brett Kavanaugh, I believe his secret twin!”

Just for fun. Continue reading →

Ethics Dunce State: California (Who Else?)

/ Jack Marshall / 17 Comments

We don’t need further evidence that the Golden State has jumped the ethics shark, has general contempt for the Bill of Rights and is in thrall to Alinskyite “ends justify the means” rationalizations, but here it is anyway. California state lawyers tried to defend in federal court an old law, California Penal Code §26820, which read:

No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.

Now, don’t ask me how a law like lasted as long as it has; the thing is 95 years old. But it’s embarrassingly unconstitutional. That’s prior restraint by definition. If a first year law student, or a well-educated college student (if thee are such things), reads that law, the First amendment alarms have to start ringing. Why wouldn’t California just repeal such a law, quietly, so as not t embarrass the state? Why wouldn’t California, like a state with some integrity that supports  core U.S. values, just concede to the Court that the law is a dud, and not oppose the claim that it is illegal? I think we have to assume that is because the culture of this particular state has rotted through. It doesn’t support core U.S. values like the freedom of speech, which might be the most vital of them all. Continue reading →