Jonathan Turley

From The “Law vs. Ethics” Files: A Westin Hotel Comes To The Nuisance

/ Jack Marshall / 24 Comments
nookwestin

The photo says it all.

In Austin Texas, Westin  opened a large hotel next to the Nook Amphitheater, which is famous venue for live music in a city with a strong music culture  Westin is now suing the Nook because its music is disturbing the guests. The complaint states that the Nook plays “chest thumping bass” seven nights a week until 2 a.m. making some rooms uninhabitable.and thus harming the hotel’s business.

Law professor and invaluable ethics story source Jonathan Turley notes that the case recalls the now defunct “coming to the nuisance” doctrine.  The defendant in such a case once could move to dismiss a nuisance claim on grounds that the plaintiff moved next door only to challenge the activities, business and even the existence of it neighbor in court.  Turley writes,

The doctrine originated in early common law with cases like Rex v. Cross, 172 Eng. Rep. 219 (1826).  The Court held:

“if a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party would be entitled to continue his trade, because his trade was legal before the erection of the houses in the one case, and the making of the road in the other.”

American courts found the doctrine to hinder growth and work against the common good, particularly as populations in cities expanded into rural areas.  

But, Turley explains, even in the absence of the “coming to the nuisance” defense, defendants have had some support from the courts: Continue reading →

Latest Ethics Notes On The Hillary Clinton E-Mail Scandal Ethics Train Wreck, Part 2

/ Jack Marshall / 21 Comments

Continuing from Part 1…

I swear, I didn't pick this photo to make James Carville look crazy or nasty. This is really what he looked like today...

I swear, I didn’t pick this photo to make James Carville look crazy or nasty. This is really what he looked like today…

5. The uproar over Clinton’s private server use and possible security breaches being investigated further with FBI inquiries into the newly uncovered Huma Abedin e-mails seems oddly out of proportion to its substance, at this point. The violent reaction of Democrats and Clinton’s campaign is more suspicious than the information itself. The immediate default to accusations of political and professional misconduct is itself unfair and unethical, and reminds those who are open to being reminded of the Clinton habit of bullying and threatening adversaries, including honorable ones. Just as Trump cannot seem to help himself from lashing out disproportionately at every affront real or imagined, the current over-reaction is itself disturbing. There are too many bullies and thugs in the Clinton camp.

6. Next to Harry Reid, the most publicized accuser of Comey has been Richard Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007. He has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics. As with Reid’s accusation, his is unjustified. Unlike Reid, Painter is intelligent, informed and honorable, and I can only speculate why he has jumped the rails like this. Painter argued in a New York Times op-ed on Sunday that Comey’s intent can be inferred from the absence of a good reason for sending the letter.

Huh? He had a good reason, and as a lawyer and ethics expert, it should be obvious. He didn’t want to be accused of lying to Congress, or to believe that he was lying to Congress. That’s an excellent reason. There are others. “Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate that is made on the eve of an election is . . . very likely to be a violation of the Hatch Act and a misuse of an official position,” Painter claims. Okay, but there were extraordinary circumstances. Public distrust of law enforcement institutions is at a dangerous, all-time high. Every decision is attacked as corrupt or politically motivated by one party or the other. The particularly volatile  situation of a Presidential candidate being investigated by the FBI was greatly exacerbated by the Attorney General allowing herself to be pulled into an inappropriate and improper meeting with the husband of the candidate under investigation shortly before a decision whether to prosecute was due–I’d call that an “extraordinary circumstance.” Comey has been trying to restore the integrity of the Justice Department, which Holder and Lynch, along with President Obama, has allowed to be seriously soiled. He may or may not have made the right choice, but for Painter to file a complaint alleging intentional political bias based on his actions alone is irresponsible. Writes Jonathan Turley, also a law professor of note, and one who does a better job avoid partisan bias than Painter does:

“Comey was between the horns of a dilemma. He could be accused of acts of commission in making the disclosure or omission in withholding the disclosure in an election year. Quite frankly, I found Painter’s justification for his filing remarkably speculative. He admits that he has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.  You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.”

“Or even an ethical charge.” Bingo. And those are harsh words from the usually excessively mild Turley.

I’m not sure what’s going on with Painter, whose opinions I have followed for years. I have followed him, and even argued with him occasionally, on the excellent legal ethics blog, the Legal Ethics Forum, where he is a contributor. If he is a Republican, he’s either a disillusioned one or a strange sub-species. Most of his posts tilt leftward, and they are almost all political in nature, in sharp contrast to everyone else. He obviously has no respect for the Republicans in Congress, and is as vehemently anti-Trump as I am. Unlike me, apparently, he seems to have allowed his rational contempt for Trump lead him to a damaging bias in favor of Hillary Clinton. Ethics complaints should not be used as a political weapon. Continue reading →

Latest Ethics Notes On The Hillary Clinton E-Mail Scandal Ethics Train Wreck, Part I

/ Jack Marshall / 30 Comments

train-wreck-air

[The first example of an Ethics Train Wreck or ETW (Ethics Alarms Definition: Ethics train wrecks are chains of unethical conduct created by a central unethical action. As the event becomes more complex and involves more participants, it becomes increasingly difficult to sort out right from wrong, and all parties who become involved with the episode in any way are at risk of engaging in unethical conduct themselves, intentionally or inadvertently.) that spawned a second ETW, or sub-train wreck to a train wreck, was the Trayvon Martin-George Zimmerman ETW, which has launched  several (Ferguson, Freddie Gray). I am now forced to designate the Hillary Clinton E-Mail Scandal, previously just a prominent car, perhaps even the engine, on the Hillary Clinton Presidential Candidacy Ethics Train Wreck, as an ETA itself. Since the revelation of the letter FBI director Comey sent to Congress explaining that the investigation into possible Clinton criminal wrongdoing regarding her reckless handling of official State Department communications was no longer to be considered “completed,” passengers have been leaping onto this rampaging juggernaut like there was free Halloween candy on board. I have no choice. In what I fear will be just the first of many, this post will sort out the latest developments.]

1. The word that best expresses the reaction of the Clinton campaign, its media allies and Hillary’s supporters is fury. The emotion in this context resembles the moment in every action film when the super-villain or evil mastermind who was sure that victory was his suddenly discovers that through an amazing confluence of factors, he’s going to lose after all. This comparison is not flattering to Hillary, her minions and her corrupted, but it is apt. They really believe that they deserve to get away with years of unethical and incompetent conduct and more than a year of lying about it, and go into election day with it all a distant memory, sure to be spun as just another conservative “nothingburger” …until the next time.

If there is anything worse than unethical practitioners of politics, it is smug and arrogant ones. To some extent I resent being led so forcefully to schadenfreude, but still, this crew so deserves its present pain!  They also deserve to have voters go into their booths November 8 still uncertain of just how dishonest and corrupt Hillary Clinton is, wondering if, as with Richard Nixon in 1972 (Hillary is this generation’s Nixon, except that he was more skilled, and she has the gender card to play), there are more ugly shoes to drop.

I have written this before and recently, but it bears repeating: Hillary Clinton has nobody to blame for this crisis but herself. She could have played by the rules; she could have turned everything over to State immediately, including the mysterious 30,000 “personal” emails; she could have admitted misconduct and ignorance; she could have been honest to journalists and the public. If she had done these things, the entire episode would have been negated before 2015 was out. Being angry at James Comey makes as much sense as Trump being angry at his various sexual assault accusers, and it is just as much an indication of base character.

2. The news media’s taking the cue from the Clinton campaign and reporting this as a James Comey/ FBI story is yet more proof of news media bias and its efforts to assist Clinton. Comey was cheered by Democrats (and accused of conspiring to clear Hillary by Republicans) for not recommending an indictment of Clinton when the investigation was first closed. We have since learned that his decision was very unpopular among his subordinates. The argument that the same man is now showing political bias against Clinton makes no sense.

Here is the most unethical headline yet in the “Let’s smear Comey for Hillary” division. The New York Times. this morning, on the front page, proclaims: “James Comey Role Recalls Hoover’s F.B.I., Fairly or Not.”

Who’s “recalling”? Nobody who remembers Hoover’s FBI and isn’t trying to impugn Comey unfairly would make this comparison. This is a cognitive dissonance attack, despicably seeking to link Comey to the infamously racist, extorting, power-abusing founder of the FBI. Continue reading →

Ethics Dunce: The Smithsonian Institution

/ Jack Marshall / 18 Comments

anita-hill

The new Smithsonian Institution’s National Museum of African American History and Culture is intended to celebrate the two aspects of African American influence on the nation mentioned in the title, and that includes honoring  influential and historically significant African American leaders. Among the figures ignored by the museum’s displays is Associate Justice Clarence Thomas, only the second black member of the Supreme Court. The museum does, however, celebrate the “heroism” of his last-minute accuser at Thomas’s confirmation hearings, law professor Anita Hill.

This is another and particularly sad reflection of the petty partisan bias and lack of integrity demonstrated by the Obama Administration at so many levels. It is stuffed with so many intractable ideologues, and often incompetent ideologues, that objectivity, respect and fairness are frequently too great an effort to muster. The museum honors Hill, who was recruited as a last ditch effort by Democrats to block President George H.W. Bush’s nomination of a black conservative judge to the Supreme Court and whose accusations of sexual harassment were never verified except by the confirmation bias of Democrats and Thomas’s enemies. It chose to snubThomas, which all involved had to know would be seen as an insult to the Justice, and a calculated one.

By all logic and reason, Hill should be, at best, a footnote to a Thomas display. Mean-spirited bias from the empowered Left under Obama has extended even to museum curating, which should be non-partisan. Continue reading →

Without Courage, Integrity And Professionalism In The Legal Profession, The Rule Of Law Hasn’t A Prayer: The House of Representatives v. Burwell Saga

/ Jack Marshall / 10 Comments
" Nice law firm you got here. Too bad if something were to happen to it..."

” Nice law firm you got here. Too bad if something were to happen to it…”

As I explained  here and here in 2015, the process of judicially determining whether the Defense of Marriage Act was constitutional or not was unethically sabotaged by  threats to and improper lobbying of the law firm that had agreed to defend it. The Justice Department and the President had refused to do their sworn duty to uphold the laws of the United States, and same-sex marriage activists pressured the biggest client of the firm that had accepted the case to pass the pressure along. It worked. The firm dropped the case, precipitating a resignation by the partner handling it and this ringing assertion of traditional legal ethics:

“…[D]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

This was, we are learning, not an anomaly. On the Volokh Conspiracy, law professor Josh Blackmon relates how the same strategy of applying of unethical political pressure, and the unprofessional capitulation of major law firms to it, nearly made a legitimate challenge to illegal payments to insurers under Obamacare impossible. He explains in part: Continue reading →

Observations On The University Of Houston’s Anti-Free Speech Oppression

/ Jack Marshall / 19 Comments

zipper on mouth

Prelude

I gave an ethics training session for a local non-profit yesterday. At the end of the two hours, a staffer who was pursuing U.S. citizenship was obviously stimulated by the various issues and principles we had discussed and had many provocative questions, which he struggled to articulate in his second language, for he was Sorth Korean. “Why is it right for me to pay taxes to assist illegal immigrants?” he asked. “In Sorth Korea, they say we are decades behind the US is democracy, but Korean laws are enforced no matter who the law-breaker is. I see that law-breakers in the US who are rich and powerful or famous get special dispensations from the law. Doesn’t that mean that Korea is ahead of the U.S., at least in that respect?” (Gee, I wonder who he was referring to…)

He had insightful observations, as recent immigrants to the U.S. so often do. Finally he said, “Do you agree that political correctness is a great threat to liberty and democracy?”

Yes. Yes I do. I thought so the first time I heard the term “politically correct” in the Seventies, and was so certain that the concept’s loathsomeness (and the parallel loathsomeness of its advocates, frankly), ensured that it would be a short-lived phenomenon.

Which shows how smart I am…

***

Shortly after the July 7 massacre of  five police officers in Dallas, Rohini Sethi, the vice-president of the University of Houston’s Student Government Association, posted this on Facebook:

BLM tweet

The student governing body suspended her from her office and the group.

From the Houston Chronicle…

Student body vice president Rohini Sethi has been suspended by the SGA and is temporarily barred from participating in group activities. She is also due to attend a “diversity” workshop per the ruling….The University of Houston issued a statement this week that said the move is not a university action and doesn’t impact Sethi’s academic standing. “The University of Houston continues to stand firm in support of free speech and does not discipline students for exercising their constitutional rights,” the statement said.

The action came after minority student groups on campus condemned her statement as racist or “insensitive,”and demanded her removal. The accommodating president of the SGA complied. For her part, Sethi apologized and agreed to take a three-day cultural sensitivity workshop, though she wrote several Facebook posts defending her actions. Ultimately she was brought to heel, made a public statement along with the SGA head, and like a brain-washed prisoner of war, grovelled..

“I have chosen to take these steps on my own because of the division I’ve created among our student body. I may have the right to post what I did, but I still should not have. My words at the time didn’t accurately convey my feeling and cause many students to lose their faith in me to advocate for them. I will always continue to learn and be ready to discuss these issues.”

Observations: Continue reading →

Behold..THE DUMBEST ETHICS STORY EVER TOLD!!!

/ Jack Marshall / 37 Comments

peetoy

Are you ready?

James and Isabelle Lassiter, who hail from Texas, were visiting Murfressboro, Tennessee and stopped into a Wasabi Japanese Steakhouse recently with their children. Apparently the sense of humor at hibachi restaurants has declined precipitously since the last time I ate at one, for I am told that the gag the Lassiters endured is now common fare. One of the Wasabi chefs held up a plastic toy depicting a little boy, and when the boy-toy dropped his shorts, he squirted water in a long, thin stream, as if urinating. The children were delighted! They were especially delighted when the stream hit their mom in the face.

Isabelle Lassiter was not delighted. In fact, she and her husband called the police, and accused the chef of sexual assault. “It peed on me…basically, out of his… wee wee area,” Isabelle explained, delicately.”It really didn’t have a wiener, but you got the point.” Investigators, who briefly took the toy into custody, indeed noted that the toy wasn’t anatomically correct. An officer wrote, “I observed the toy to have no penis and just a hole for the water to shoot out.”

PLEASE don’t tell me that if the toy did have a plastic penis, the claim of “sexual assault” would have been taken more seriously.

The Lassiters agree that this detail should not matter. “Just because somebody cut off a piece of plastic…doesn’t change the fact that you’re getting peed on,” said James Lassiter. “It was a sexual style assault on my wife.”

This is not a hoax. I wish it was a hoax. Reading about it has temporarily disrupted my capability to organize my thoughts, so I’ll just note the following in no particular order:

1. It was not sexual assault, by any stretch of the imagination. Nobody “peed on” Mrs. Lassiter. The cook squirted water on her, using a juvenile, risqué version of a squirt gun.

2. If Isabelle thought even  for a second that the stream of liquid was urine, she has a cognitive problem. Isabelle, pay attention: plastic figures do not urinate. They are toys. They have no bladder or kidneys. Even if the liquid comes from the toy’s “wee wee area,” it can’t possibly be urine.

3. Calling the police was beyond an over-reaction; it was truly idiotic, and it should be punishable. I’m trying to think of any reason not to have an ordinance that declares a spurious and wasteful call for police a misdemeanor carrying a hundred-dollar fine. Of course, such an offense should only be declared in extreme circumstances…like this, for example.

4. The manager of Wasabi did issue an apology to the couple, but claims he has never had any complaints about the toy in the past. “The kids like it, they think it’s a water gun, kind of like a water gun you know,” said Mr. Huang. Ah! The old “if kids think it’s funny, it’s ethical” standard. This standard is not reliable. The Lassiter kids might well have also found it hilarious if the chef hit their surprised mother with a cream pie, a pillow, or a dead cat. Continue reading →

DNC Progressives Jump The Shark

/ Jack Marshall / 10 Comments
Pop Quiz: Name all the ways this photo is appropriate to the post...

Pop Quiz: Name all the ways this photo is appropriate to the post…

[A “Happy Days” reference seems felicitous, since last week saw series creator, writer and frequent director Garry Marshall head off to the Big Malt Shop In The Sky. In addition to having the good taste to be named Marshall, Gary’s myrth-inducing career in TV and movies as a producer, writer, director and actor (Marshall’s turn in “Lost on America” as the incredulous casino boss whom a desperate Albert Brooks tries to persuade to give back the life savings lost by Brooks’ wife in a mad gambling spree might be my favorite comic acting bit of all time) was long and productive, and the culture will miss him greatly. As will I. ]

Attention must be paid to the fact that while the speakers at the Republican National Convention sounded scary (to some), the Democratic National Convention authorities acted scary.

Twenty-one Vermont Democrats have filed an official complaint with the party, protesting that the Democratic leadership ordered  the state party to replace Vermont Sen. Tim Ashe and party member Ken Dean with women, in the name of “gender balance” without adequate due process.

By all means, let’s make sure that gender discrimination in pursuit of the greater good and Progressive Nirvana is done with due process!

I think it’s cute that both political parties are losing their minds at the same time, don’t you? Continue reading →

Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

/ Jack Marshall / 13 Comments

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests. Continue reading →

Why Are So Many National Parks Visitors Vandalizing Nature?

/ Jack Marshall / 16 Comments

bison calf

My initial impression was that this trend is another canary dying in the mine (yes, I know THAT isn’t a canary!), as being and acting stupid and unethical becomes increasingly culturally acceptable. My theory holds that the public sees so many rich, powerful, successful public figures exhibiting these traits, and yearns to adopt their habits and values

The most recent example is the episode represented by the photo above. Well-meaning but ignorant tourists in Yellowstone National Park, where no human is supposed to get within 25 yards of the wildlife, decided to “rescue” a bison calf they found away from its herd, so they stuffed the animal into their car. They drove it to a ranger station, where they were cited for violation of park rules.

In effect, they had killed the calf. When the young bison was returned to the herd, the mother rejected it, and the beast began approaching humans, seeking food and company.

The park had to euthanize it.

Said the park officials in a statement,

“In recent weeks, visitors in the park have been engaging in inappropriate, dangerous and illegal behavior with wildlife. These actions endanger people and have now resulted in the death of a newborn bison calf.”

Morons. The Park Service should release their names, or give some Yellowstone wolves their scent. This is not a new taboo; there is no excuse for any visitor to a National Park to think this is responsible conduct.

Not fatal but equally infuriating is the tale behind this photo: Continue reading →