Lunch Time Ethics Appetizer, 4/17/2019: Accountability, Conflicts of Interest, Incivility, Hype And Privilege

It’s a real ethics poop-poop platter…

1. Red Sox lousy start ethics. Boston Red Sox starting ace Chris Sale, widely regarded as one of the top two or three pitchers in baseball who signed a rich multi-year extension with the team right before the season began, lost his fourth straight start yesterday to begin the season. He told reporters, “This is flat-out embarrassing. For my family, for our team, for our fans. This is about as bad as it gets. Like I said, I have to pitch better…It sucks. I’m not going to sugarcoat it. I just flat-out stink right now.”

2. The Hollywood writers vs agents mess. I haven’t posted on this because I can’t find a copy of the controversial “Code of Conduct” that the agents refuse to sign. I also need to bone up on  the agency laws in New York and California. This article is a good summary of the show-down. Regarding the question of conflicts of interest in the practice of “packaging” and agents going into the production business, , however, it seems clear that the writers have the better arguments. From the article:

Packaging is a decades-old practice under which agencies may team writers with other clients from their stables for a given project. With packaging fees, an agent forgoes the usual 10 percent commission fee paid to them by individual clients; in its place, they are paid directly by the studio….The writers argue that agencies violate their fiduciary obligations to their clients when they make money from studios instead of from the people they are representing. The practice of accepting packaging fees, the writers say, allows the agencies to enrich themselves at the writers’ expense when they should be using their leverage to get more money for writer-clients.

Any time an agent gets paid by the party the agent is supposed to be negotiating with, that’s a textbook conflict. I’m amazed the agents have been getting away with this practice for so long. As for the production deals…

There are agency-affiliated companies that have moved into the production business — and this does not sit well with the writers unions. W.M.E., for instance, has an affiliate company called Endeavor Content. It was formed in 2017 and is a distributor of the show “Killing Eve,” as well as a producer of an epic drama coming from Apple TV Plus called “See.” C.A.A. also has an affiliate: Wiip. It is a producer of “Dickinson,” a comedy series that is also part of the Apple rollout scheduled for the fall. United Talent Agency is also getting in on production, with an affiliate called Civic Center Media. It has teamed up with M.R.C., the producer of “House of Cards,” to make new shows.

The agencies have argued that these affiliates are artist-friendly studios that will help writers, because they add to the number of potential buyers — which means more competition for writers’ services and bigger paychecks. The writers have said that agencies have a conflict of interest when they act as studios. How, they ask, can an agent represent you and also be your boss?

Bingo. The short and easy answer is “They can’t.”

Stay tuned… Continue reading

Morning Ethics Warm-Up, 1/29/19: Sick Room Edition

I hope you’re feeling better than I am.

1. Sick Ethics. Being sick on the job is always an ethical conflict, and riddled with bias. My father’s approach, so characteristic of him as someone who insisted on going into the Battle of the Bulge as an officer with a mangled, recently-repaired foot that was still oozing blood, was to ignore the illness and soldier on. There are two problems with that, however. First, you are working at diminished capacity, and second, you risk infecting others. The problem is a bit easier when you have a home office like I do, but there is still a trade-off issue: if I “soldier on” like my father, do I risk a longer illness and reduced capacity for far longer than if I just took a day or two off to recuperate? In my case, this is always a tough call: I am very vulnerable to bronchitis and pneumonia following chest colds (that’s what I’ve got, big time, starting last night), and when the stuff I cough up starts attacking me through the Kleenex, I’m in big trouble that has sometimes lasted for months. There is also a bias problem when you feel rotten. Right now, I would love to lie down. I can’t think of anything I would like more. I bet I can rationalize air-tight reasons why I should lie down, despite all of the very valid reason not to.

2. And speaking of sick...All 50 states require vaccinations before children to attend school, but 47 of them  (California, Mississippi and West Virginia are the exceptions) allow parents to opt out of vaccines if they have religious beliefs against immunizations. Eighteen states also allow parents to opt out of vaccines if they have personal, moral or philosophical beliefs against immunizations, including beliefs that they can think straight when they are in fact idiots and get their medical advice from Jenny McCarthy and other hysterical anti-vaxxers. Oregon and Washington are among the states that allow for a parent’s personal beliefs to exempt their kids from being immunized, along with Arizona, Arkansas, Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Wisconsin and Vermont.

You know. Morons. Continue reading

The Lawyer Version Of “The Hader Gotcha”

“GOTCHA!”

My legal ethics colleagues have their briefs in a bunch over a case in which an enterprising news media reporter dredged up old, old —but scintillating!—professional discipline on two lawyers taking on the defense of a much-hated defendant in a sensational and heinous crime.

One had been suspended for taking client money, but was eventually reinstated. The other had been reprimanded for having a sexual relationship with a client. The idea, of course, was to make the lawyers look bad. The issue is whether this is a fair use of attorney discipline, especially in the latter case.

The episode is similar to the Hader Gotcha, which we have discussed here several times, in which deep social media divers look for embarrassing youthful social media posts from the past, even from teen years, to use to turn the public against the individual, or at least to force the target to grovel an apology. It is also similar to the Brett Kavanaugh hit from Dr. Blasey-Ford, though I doubt this would occur to my overwhelmingly “woke” legal ethicist friends.

The lawyer raising the issue represents attorneys faced with disciplinary complaints, and asks why this is happening, feels that it is unfair, since the discipline wasn’t recent and had nothing to do with the current case, and thinks it is wrong that the reporter didn’t bother to talk to the bar association or the lawyers themselves to get proper context. He also asks whether anything can be done about it, including, perhaps, not publicizing some varieties of lawyer discipline.

The lawyer also asks,

Do I need to warn my clients that a collateral consequence of discipline is that if they ever take a high-profile case, the press might dredge up old dirt when covering the case?

This is too easy:

  • Welcome to the internet age! No, there is absolutely nothing that can be done about this, except to create a more ethical culture of journ…sorry, I couldn’t get that out without laughing.
  • The legal profession has never been able to explain to the public, and apparently not to journalists either, though they should be less ignorant, that representing accused criminals and guaranteeing even guilty citizens their rights isn’t an adverse reflection on a lawyers’ character. As a result, someone will always think it’s fun, justified and fair to look for dirt in a defense lawyer’s personal or professional past. Thanks to the web, it’s easier than ever.
  • Yes, you need to warn your clients. I’m surprised you weren’t doing so already.
  • And it’s not just legal discipline. Anything potentially embarrassing that can be found on the web, including social media posts [Lawyers: Don’t use Twitter!] can and will be dug up and weaponized.
  • As a result, past discipline, and any other potentially embarrassing information about a lawyer now falls into Rule 1.4 territory, information the client has a right to know and must be informed about in order to participate in his or her own case.
  • No, all lawyer discipline should be reported. The public has a right to know.

Now THIS Is A Frivolous Lawsuit!

Sounds noble in theory, but it doesn’t always work when the one saying “no” is a judge.

Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem  silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,

Rule 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law….

Comment:The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

The guy currently  suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.

This guy can be, however: Continue reading

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.

Continue reading

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.’”

Nice.

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

Update: Astoundingly Unethical Lawyer-Hypnotist In Prison, And Disbarred.

Good.

Fine on the way to prison, where he will be hypnotized and will spend his 12-year sentence thinking he's a chicken...

Fine on the way to prison, where he will be hypnotized and will spend his 12-year sentence thinking he’s a chicken…

I hadn’t followed the story of Michael Fine since I wrote about him in 2014. This was the Sheffield, Ohio lawyer who hypnotized female clients so he could sexually molest them. When I wrote the post, two victims had been identified. The final tally was six, and there may have been more.

In September of 2015, Fine pleaded guilty to five counts of kidnapping and one count of attempted kidnapping.  He admitted to using his skill in  hypnosis to control the female clients, forcing them submit his sexual desires against their conscious will. Last week, Fine was sentenced to 12 years in prison. He had already been permanently disbarred by the Ohio Bar. Fine was not a licensed hypnotist, but needless to say, he was an unethical hypnotist too.

Judge Patricia Cosgrove told Fine at his sentencing, “At the lowest point in their lives when they came to you for help in the throes of painful divorces and custody battles, you took advantage of them. You took advantage of their trust and faith in you by sexually abusing them. You deserve to be punished.”

Ya think?

When I mentioned this case in some 2015 legal ethics seminars, many lawyers refused to believe it. I even lost a law firm client because one lawyer complained that I showed insensitivity by making a mild joke about the story, which did and does remind me of something out of a bad Adam Sandler movie.  It is the strangest example of unethical lawyering I have encountered, but I am confident that a stranger one will appear eventually.

________________________

Pointer: Fred