The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either. There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.
Judges, however, often make lawyers look like cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files. The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk. Continue reading
“Now now, your Honor—that’s the Plaintiff!”
This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.
American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes, we are enlightened that “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”
[Notice of corrections: This post had way too many typos, and I apologize profusely. Thanks to Crella for alerting me. I think I got all of them.]
I have a theory.
I wish I didn’t.
Therese Kozlowski got a videotape of her husband Brian poisoning her coffee with sleeping pills. Even with this evidence, the poisoner received a sentence of just 60 days in jail, which he will be allowed to serve on the weekends. The prosecutor called the sentence “a slap in the face” of the victim. Oh, it’s much worse than that.
It all started after Therese said she wanted a divorce. Then she noticed that she was feeling drowsy and tired on mornings when Brian made the coffee. She narrowly avoided an accident when she fell asleep while driving to work. So she secretly installed a small video camera by the coffee machine, and sure enough, Brian was putting the equivalent of eight sleeping pills in the morning java.
“Brian’s continuous, methodical, and calculated plot to poison me included a complete disregard for human life, including his own daughter [she also drank some of the spiked coffee], along with hundreds of other drivers who he put at risk every day for weeks,” Therese Kozlowski said in court. “I believe this was attempted murder. Once Brian realized he lost me and there was no getting me to stay in this unhealthy marriage, his goal was to eliminate me.”
This convinced Macomb County (Michigan) Circuit Court Judge Antonio Viviano , he said, to give Brian jail time instead of merely probation, which was his initial instinct. Continue reading
An appeals panel throws out the emoluments lawsuit filed by D.C., Maryland.
A three-judge panel of the US Court of Appeals for the 4th Circuit held that the District of Columbia and Maryland lack standing to sue President Donald Trump over claims related to his hotel in Washington, D.C. The court ordered a lower court to throw out the lawsuit with prejudice, meaning the lawsuit alleging violations of the Constitution’s emoluments clause could not be refiled.
The Emoluments Clause nonsense has been one of the more contrived “resistance” theories and this lawsuit was part of the organized plan of harassment against the President. Two Democratic jurisdictions filed this purely political suit as their contribution to the “resistance.”
“Even if government officials were patronizing the hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel,” the 36-page opinion said. “The hotel would still be publicly associated with the president, would still bear his name and would still financially benefit members of his family….Neither [emoluments] clause expressly confers any rights on any person, nor does either clause specify any remedy for a violation.”
The unique conflicts of interest issues presented when a multinational business owner becomes President was never imagined by the Founders, and once Trump was elected it was too late to deal with the problem equitably. The Democrats and the news media, not to mention Trump’s Republican rivals for the nomination and the legal establishment—and commentators like me, all neglected their duty to raise the issue in a timely fashion, mostly because they never thought Trump would win. They are all at fault for their own mistake. At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.
A New Jersey Appeals Court has reversed a decision of a Family Court judge who has a claim on the title of “Most Incompetent Judge Ever.”
The facts showed that a drunk 16-year-old boy raped an even more drunk 16-year-old in the basement during a party. The boy recorded a video of himself penetrating her from behind, and then shared it on social media among friends along with a text that said, “When your first time having sex was rape.” The victim could barely recall the incident, and when she confronted her attacker, he denied that he had raped her even as he continued to circulate the video. When the victim, known only in public records as Mary, an alias, because of her juvenile status, learned this, she had her mother contact authorities.
The Monmouth County prosecutor’s office wanted the boy to be tried as an adult. They applied for a waiver of his juvenile status, arguing that the alleged assailant’s actions were “predatory and sophisticated.” “At the time he led ‘Mary’ into the basement gym, she was visibly intoxicated and unable to walk without stumbling,” the prosecutor wrote. “For the duration of the assault, the lights in the gym remained off and the door was barred by a foosball table. Filming a cellphone video while committing the assault was a deliberate act of debasement.”
In criminal law, the defendant’s lawyer always tries to get a “good judge,” and in this case, the accused rapist teen hit the jackpot. Judge James Troiano of Superior Court was the ideal judge for this defendant, because he apparently leads his profession in rationalizing idiocy. “Good,” in this case, meant incompetent. Continue reading
But perhaps a potential Democratic Presidential candidate…or Virginia Lieutenant Governor maybe?
Judge Scott Gallina of Asotin County in Washington was arrested at the courthouse last week and charged with second-degree rape. He was also charged with fourth-degree assault with sexual motivation and indecent liberties, as described by a press release by Washington’s attorney general.
Eleven women claim that Gallina subjected them to varying degrees of sexual misconduct including unwanted touching and inappropriate comments. The women even adopted a buddy system so that no one would risk being alone with the judge in his chambers.
The rape charge involves a woman who told investigators that she didn’t report Gallina’s alleged conduct because she feared she wouldn’t be believed. She did complain to Judge Gallina, who said he “could not help it because he liked beautiful women.”
And it gets creepier. Continue reading
…as the Mueller report lets the sunshine in…
1. Thank goodness judges don’t bake cakes…the American Bar Association’s Standing Committee on Ethics and Professional Responsibility have issued Formal Opinion 485. It holds that judges who perform marriages, either as an obligation of their office or by choice, may not refuse to do so for same-sex couples. The opinion emphasizes that regardless of their backgrounds, personal views or philosophies, judges must follow the law and act impartially, free from bias or prejudice.
I’d say the opinion is unassailable for a judge who regularly performs marriages as a mandatory part of his or her job. A judge who is not so required, presumably, can choose not to perform any marriages at all. I bet some judge will challenge the proposition, however, that a religion-based refusal to perform an optional civil wedding is per se “bias or prejudice.” [Source: Legal Ethics in Motion]
2. Welcome to my world...This week I am doing several ethics programs, one of which (not in legal ethics) I have presented over many years. Last year, I was told that the 2 hour program I had been presenting to the group only needed to be 90 minutes, so the materials I prepared and submitted indeed covered that amount of time, as did my presentation. This year, I again prepared for 90 minutes. Now, looking at the conference’s two-day program, I see that my seminar is listed in the program as two hours again. That’s a mistake, but it’s too late to correct it: the attendees plan on getting professional credit. So what is my most ethical response? I could…a) stretch the material to two hours, but that’s a 30 minute stretch. b) At my own expense, create an additional 30 minutes of material, copy the materials, distribute them, and never mention that the conference manager, my long-time contact, screwed up. c) Use this crisis as leverage to negotiate a supplement to my fee for the necessary upgrade. d) End after 90 minutes, tell the attendees why, and suggest that they take up the matter of the missing credit with the conference organizers. e) Do the upgrade, present it, and then bill the conference for my time. Continue reading