In Which I Am Admonished For A Slur, And Am Unapologetic

Former US senator John Edwards speaks 30

An episode today raised echos of a couple of Ethics Alarms topics this week, such as incivility and the use of uncomplimentary words.

Today’s presentation of the musical legal ethics seminar “Ethics Rock 2021” began with my partner Mike Messer singing “Ethics Man,” a parody of Billy Joel’s classic “Piano Man.” It was about the tenth version of that wonderfully adaptable song that I have written. This was today’s chorus (it’s usually a sing-along, but not on Zoom):

Sing us the Rules, you’re the ethics man!
Sing us the Rules today!
We’re stuck in an ethics dilemma here
And it’s your job to show us the way!

I had returned an old verse to this installment because I felt the issue of character and the fitness to practice law was an especially relevant topic. The verse was first written shortly after the John Edwards scandal was exposed.. Edwards, as you may know, never faced any professional discipline from the North Carolina bar despite what I have been told were thousands of complaints, though none were related to his legal practice…

Now John, he was running for President
While running around on his wife
And he fathered a daughter and lied like a rotter
Constructing the scam of his life.
But some lawyers say, “Hey, all that’s personal!
He isn’t unworthy of trust!
Like that guy with the huge student loan he owes
So his bar application’s a bust.”

The last part was a reference to Robert Bowman, a hard-working, honorable law grad denied membership in the New York bar for years because his student loan debt had ballooned due to no fault of his own. (He was eventually admitted.) Bowman was found to lack the character to practice law, while Edwards was (and is) still officially a lawyer in “good standing.” This is a sore point for me; I have said many times that I wouldn’t trust Edwards to mail my water bill, and for the profession to assert that he has the “moral character” to practice law is not just a double standard but a ridiculous one.

Somewhere in my riff on Edwards versus Bowman I used the term “scumbag” to describe the former Senator, and quickly got a message from one of the participants claiming that it was “inappropriate” to refer to Edwards with that slur.

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Morning Ethics Warm-Up, “Happy Birthday George Washington!” Edition

Good Morning!

1 The Indispensable Man...This is George Washington’s birthday, and every American alive and dead owes him an unmatched debt of gratitude. A useful assessment of why this is true can be found here.

Not only was Washington indispensable as the military leader who won the Revolution, he was also, it seems likely, the only human being who could have navigated the impossibly difficult job of being the first President of a new nation attempting an unprecedented experiment in democracy. The precedents he set by his remarkable judgment, presence, wisdom, character and restraint continue to be a force today. Washington was also perhaps the most ethical man who has ever been President. The principles that guided him from his youth and that resulted in his being the only man trusted by the brilliant but often ruthless Founders who chose him to lead their new country can be reviewed here, but two of them tell us what we need to know about Washington’s ideals…the first,

Every action done in company ought to be with some sign of respect to those that are present.

…and the last,

 Labor to keep alive in your breast that little spark of celestial fire called conscience.

Revoltingly, the average American is largely ignorant regarding the great man whose face adorns the one dollar bill. For example,  a recent YouGov survey asked respondents who was the best President in U.S. history. 16% of Americans selected Ronald Reagan, and 16% selected Barack Obama. Abraham Lincoln took third place with 15%. Washington finished fourth,but only 10% of those surveyed named him as the best President,  14 percent of Republicans, and only six percent of Democrats. I assume that Reagan, and I hope even Obama, would find these results ridiculous. They tell us that citizens can not distinguish politics from virtue. They tell us that the schools teach neither history nor critical thought effectively. They tell us that Democrats regard the fact that Washington was a slaveholder more notable than the fact that he made the United States possible. They tell us that the nation is losing a connection to its origins, heroes and values. It tells us that most of the public is ignorant of things that competent citizens must know.

It tells me that when an advocate cites a poll that says, “Americans want this,” the proper response is “Why should anyone trust their judgment? They think Regan and Obama were better Presidents than George Washington.”

2. Children’s Crusade update: Both CNN and HLN are flogging the high school student protests virtually to the exclusion of any thing else. The total commitment to aggressive and emotional advocacy on the part of the mainstream news media was disgraceful after the Sandy Hook school shooting, but this is worse; just when I think our journalism has hit the bottom, it finds a way to go lower.

This morning on HLN, I was greeted by an extremely articulate Marjory Stoneman Douglas High School survivor who said,  confidently and radiating certitude, “These episodes are completely preventable.” Putting such nonsense on the air, even when spoken by an attractive, sympathetic, youthful idealist who perhaps cannot be blamed for not knowing what the hell she’s talking about,is irresponsible and incompetent. It is no different from saying “The Holocaust never happened,” Barack Obama was born in Kenya” or “The world is ruled by the Illuminati.” “These episodes are completely preventable” is, from the mouth of anyone qualified to be on television talking about gun policy, a lie, and from someone like this young woman, as naive as professing a belief in Santa Claus. Such statements should not be presented in a news forum as a substantive or serious position. A news organization has an ethical obligation either to correct the misinformation, or not to broadcast it without context, like “Here is the kind of arguments these child activists are making, making serious and coherent debate impossible.”

When the crawl across the bottom of my screen added another argument from one of the activist students—has there ever been a time when the policy analysis of people lacking high school diplomas has ever been given so much media attention and credibility?—that read, “Student protester: “People are buying guns who don’t need them,” I switched to the Cartoon Network

Right, kid, let’s pass laws that prohibit citizens from buying what the government decides they don’t need.

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But…But… It Doesn’t Mean He’s Not A Good Lawyer!

RIP, Snoopy.

This is a fascinating example of the legal community’s incomprehensible standards regarding who is and who isn’t fit to practice law.

In New York,  the bar took away lawyer Anthony A. Pastor’s license after he violently killed his girlfriend’s poodle “Snoopy.” See Matter of Pastor, 2017 NY Slip Op 06729, (App. Div. 1st Dept. Sep. 28, 2017).

An autopsy revealed that Snoopy  had nine broken ribs, a crushed kidney and massive internal bleeding, all at the hands of Pastor.

In disbarring Pastor, [ Matter of Pastor, 2017 NY Slip Op 06729, (App. Div. 1st Dept. Sep. 28, 2017)], the court noted that the sentencing judge’s comments that the respondent’s conduct “‘showed almost incomprehensible violence, and malice,’ that the dog was in ‘excruciating pain’ up until she lost consciousness while respondent ‘sat down at his computer in the most cold-blooded manner, and went to work, knowing that the dog lay dying, . . . on the floor behind him.’”


But what does it have to do with whether the creep is a competent, honest, trustworthy lawyer?

Again I note that John Edwards never faced discipline for his massive deceptions and machinations, while his wife was dying of cancer, and while he was running for President. This conduct directly implicated trust and character, yet the refrain of Edwards’ colleagues was that his deceptions and cruelty, while clearly unconscionable, did not involve the practice of law, and thus did not preclude Edwards continuing to be regarded as a trustworthy lawyer. Are they kidding? I wouldn’t trust John Edwards to mail my water bill. Still, I hear this argument all the time in my legal ethics classes. One hypothetical is about a law partner who is caught cheating at poker in a regular game among fellow attorneys. Does that conduct mandate reporting him to the bar for discipline? Most lawyers say no.

They are wrong. Continue reading

Yes, Aaron Schock Is Untrustworthy. Why Wasn’t that Obvious From The Start?

SchlockRep. Aaron Schock (R-Ill) resigned from Congress this week, effective March 31, after it was revealed that he charged more driving miles of travel to taxpayers than he had mileage on his car. This was just the latest indication that Schock was infected with a fatal sense of entitlement, which you can read about here and  here. I’m not going to waste time declaring the Congressman unethical: obviously he is unethical. What concerns me is that he was elected to Congress three times despite being such a textbook example of a Narcissistic Personality Disorder victim that everyone should have been running away. This was a stunning instance of voters, journalists and pundits being naive, ignorant and incompetent. Continue reading

Why Is A Lying Journalist Not Fit To Practice Law, When A Lying Presidential Candidate Is?

Question: Which two men are fit to practice law? (It's a trick question...)

Question: Which two men are fit to practice law? (It’s a trick question…)

The Wall Street Journal Law Blog muses on an issue that has troubled me for a long time: the fact that the legal profession allows people to keep practicing law whose conduct would have kept them out of the profession had it occurred before they were lawyers.

The reason for the current examination is the apparent inconsistency of disgraced New Republic journalist Stephen Glass continuing to fight and uphill battle (and, I think, doomed) to be admitted to the California bar, while lying scum-of-the-earth John Edwards still has his law license and is opening up a new practice in North Carolina. I wrote about Glass here, and Edwards here.

In the Journal piece, estimable legal ethicist Stephen Gillers opines that the different standards applied to Glass and Edwards are paradoxical,  with the law grads entering the profession being held to more stringent ethical standards  than a veteran attorneys. “If anything, you might say it should be the opposite,” he says.

Especially if the veteran lawyer is a high-profile, national figure who makes every other lawyer want to crawl under a rock… Continue reading

Profiles In Expediency: Former San Diego Assemblywoman Lori Saldaña

"You knew!"

“You knew!”

If you have been wondering, as I have, how it could have been possible for his party and colleagues to nominate hands-on San Diego Mayor Bob Filner, serial sexual harasser, predator, and master of “the Filner Headlock,” without knowing of his ongoing War on Women (karma’s a bitch, Democrats!), so have I, and so have a lot of San Diegans. Sure enough, it turns out that indeed the party did have advance notice that Filner had a problem (though not as big a problem as any female staffer who came within his reach), but inflicted him on San Diego anyway.

So says former Democratic assemblywoman Lori Saldaña, who told the media that in the summer of 2011 six San Diego women prominent in local politics, business and education alerted her that Filner had physically or verbally harassed them.  Saldaña said she duly warned former party Chairman Jess Durfee about the evidence and Durfee was among a group of Democratic leaders who met with Filner to discuss the issue that summer. Nothing happened. Filner was nominated and elected, and the rest is history, headlocks, fanny pats, gropes, stolen kisses and mayoral solicitations of sex from subordinates and colleagues.

San Diego is such a friendly city.

“As disgraceful as Bob’s behavior has been, it’s been tolerated by our Democratic Party leadership,” Saldaña scolded. Continue reading

If Only The Profession Was This Strict AFTER Admitting A Lawyer To The Bar…

No, surprisingly in light of last week's revelations from Cambridge, the applicant who cheated on her bar exam did NOT go to Harvard. I'm as stunned as you are!

No, surprisingly in light of last week’s revelations from Cambridge, the applicant who cheated on her bar exam did NOT go to Harvard. I’m as stunned as you are!

One of the legal profession’s ethics anomalies is that its character standards for entering legal practice are far more unforgiving than the standards for keeping one’s license to practice after being admitted. For while John Edwards continues to be a North Carolina lawyer in “good standing,” an Ohio bar applicant was held to lack the requisite good character to be a trustworthy lawyer (Ohio Supreme Court opinion here) because of the following set of facts.

When Jasmine Shawn Parker of Covington, Kentucky was taking the Ohio bar exam, a test monitor reported that she had continued to write for up to 30 seconds after “time” was called on a set of two exam questions, and then again for 45 to 60 seconds on two sets of two exam questions. The Board of Bar Examiners investigated, and asked Parker’s tablemates about their observations or her actions, if any, after time had been called. They reported that Parker had continued writing for maybe a second or two past the declared deadline on Day 1 of the exam, and on the second day, had continued to write past the stopping point “long enough to get at least two lines of writing on paper.” As a penalty after these findings, the Ohio Board of Bar Examiners gave Parker no credit on the exam question with the highest point value. Never mind: Parker’s score was high enough to pass the bar exam anyway. Her alleged cheating, however, led the Board of Commissioners on Character and Fitness to recommend her license be denied, with the opportunity to reapply.  Continue reading

Professional Discipline For Unethical Law School Deans?

Why not?

What the North Carolina Bar considers a trustworthy lawyer...

What the North Carolina Bar considers a trustworthy lawyer…

Law professor Ben Trachtenberg has caused a stir by suggesting in a law review article for the University of Missouri Law School Journal  that law school administrators responsible for intentional and egregious misrepresentations in advertising for their schools have violated the professional ethics codes and could, and should, face discipline, such as disbarment.

I don’t want to cause Nando a fatal cognitive dissonance attack, really I don’t, but I agree with the professor wholeheartedly. I have long believed that the Model Rules prohibition of dishonesty in Rule 8.4 should be applied to lawyer conduct not related to the practice of law more frequently and stringently than it is. Lawyers, for their own protection, are fond of the fictional Clinton myth that one can be an upright and trustworthy lawyer while displaying deceitful and dishonest conduct in their “personal lives,” as if lawyers are ethically schizophrenic. The proof: John Edwards still has his license.

The law school deans that Trachtenberg targets, however, don’t get the benefit of this pass. They are lawyers who were dishonest in their professional duties that, while not requiring a law license, have a clear impact on the legal profession.  Trachtenberg writes,

“In light of the common application of Rule 8.4(c) to lawyers who engage in dishonesty unconnected with the practice of law, there is little doubt that dishonest law school marketing conducted by members of the bar justifies professional discipline. Paul Pless lied repeatedly, over a period of years, about the quality of incoming students at the University of Illinois College of Law, deceiving the ABA and U.S. News, along with prospective students and others who relied on statistics they compiled.191 Mark Sargent conspired with colleagues to engage in similar conduct at Villanova.192 Can anyone dispute that these men engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation”? Surely serial dishonesty—committed with the purpose of gaming the rankings used by prospective students deciding whether and where to spend tens (if not hundreds) of thousands of dollars—is at least as serious a violation as falsifying a resume and transcript.”

Sure it is. As with Edwards, however, the profession is unlikely to be willing to expand the range of activities by lawyers outside of actual practice that will trigger discipline. Continue reading

Gen. Allen, Lockheed, John Edwards, Restraint Bias,and Further Musings on the Petraeus-Broadwell Ethics Train Wreck

Run away!

In no particular order:

  • In a tack that is being duplicated by other commentators on the left, MSNBC’s Rachel Maddow essentially pronounced the scandal as much ado about nothing (Columnist E.J. Dionne dismissively referred to Petraeus’s affair as his “little secret”). See, as long as an incident involves sex, the Left’s default position is that it can’t be that bad. Maddow mocked the actions of Jill Kelley, the woman who Broadwell threatened and who alerted the FBI, saying, “Who contacts the FBI because of threatening e-mails? If I did that, they would have to set up a special division just for me.” Ha ha.  How many of your threatening e-mails credibly suggested that the head of an intelligence agency was having an illicit affair with an unstable wacko, Rachel? Kelley did the responsible, intelligent thing given the possible national security implications. But it’s certainly good to know that you wouldn’t…because it’s only sex, of course.
  • Other pundits are complaining that the FBI became involved when what Petraeus did “wasn’t a crime.”  Yes,  it’s the “It’s legal” rationalization. Why people who can’t comprehend that dangerous, destructive, serious misconduct can occur without breaking any laws are allowed to write newspaper columns, I’ll never understand. Petraeus’s affair was a violation of the ethics rules, in an intelligence agency with major responsibilities in national security. That is serious, inherently dangerous, and easily could have led to security breaches that were illegal. If a leader materially, knowingly and publicly violates an ethics rule, he cannot lead. This is why Petraeus, who understands this, resigned, despite the certainty that the Rachel Maddows of the media would have been happy to shrug off his actions as “no big deal.” because it’s only sex, and “it’s legal.”
  • Kelley still boarded the ethics train wreck, not because of her actions in response to Broadwell’s threat, but in light of the revelation that she was maintaining a hot e-mail relationship with Gen. John R. Allen, the commander of U.S. and NATO troops in Afghanistan. The FBI has uncovered between 20,000 and 30,000 pages of primarily e-mails containing “potentially inappropriate” communication between Allen and Kelley. Wait, what? Between 20,000 and 30,000 pages? What the hell is going on with our generals? This is obsessive, unhealthy behavior, even if he’s just writing her limericks and recipes. Something is serious amiss in the ethical culture of the U.S. military leadership Continue reading

Ethics Dunce: The “Lady in Red”

Now that the John Edwards trial is over—it ended with an acquittal on one charge and deadlocked jurors on the rest—it’s time to heap some deserved contempt on the so-called “Lady in Red,” the alternate juror whose courtroom demeanor became such a distraction that it prompted the judge to send all the alternate jurors home. From the Washington Post:

“She walked in flipping her hair, smiling broadly at [Edwards], batting her long eyelashes, cocking her head playfully. She was just an alternate juror, but suddenly she was the most watched person in the cramped federal courtroom. Commentators had dubbed her the “Lady in Red” after she bopped into the courtroom last week in a revealing, off-the-shoulder red top. Others just called her the “flirty one,” interpreting her vivacity as some kind of courtship dance, though no one can say for sure whether that was her intent.” Continue reading