The American Bar Association Has Lost Faith In Professionalism, It Seems.

For as long as I can remember, lawyers took pride in that fact that they could pound away at each other in the court room, shout, sneer, mock and beat an adversary into a metaphorical pulp, and put it all aside the second the case was finished. The idea that being friends, even close friends, with an opposing advocate compromised a lawyer’s determination and willingness to fight for his or her client was an anathema to the whole concept of professionalism. During the Civil War, West Point classmates on opposite sides sometimes met before a battle, shared a whisky, old memories and a few tears, and the next day did their best to kill each other. That mindset was analogous to how I was taught lawyers were supposed to behave, and, indeed, did.

Now the American Bar Association has apparently decided that it was all a myth. In  Formal Opinion 494, “Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel,” the ABA expresses doubts that many lawyers are up to the task.

“A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel, the ABA now says. “Lawyers must examine the nature of the relationship to determine if it creates a …conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.”

The opinion breaks possible personal relationships into three categories:

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“Wait, I Have The Right To Consult A WHAT?”

Miramda attorney

Devin Malik Cunningham, 21, is accused of the robbery and murder of a 71-year-old man. His lawyers argued that his confession should be excluded from the trial because he didn’t understand the Miranda warning given to him when he was arrested. Specifically, Cunningham claims that testified that he was confused when asked whether he wanted “an attorney,” and that is why he agreed to speak with police.  He said that he thought an attorney is a judge.

No wonder he didn’t want to speak to a judge. Judge William Amesbury of Luzerne County, Pennsylvania ruled that his claim was absurd, noting that there was no evidence of a cognitive or learning disability that would support Cunningham’s alleged misunderstanding.. There was also evidence that an arresting  officer explained during questioning that an attorney is a lawyer.

I wonder what is the presumed understanding of basic English vocabulary words for an English speaker. Cunningham’s Hail Mary defense, if accepted, might have opened up a brand new avenue for accused criminals, sexual harassers, and those derided as uncivil. I think he may have made a bad choice regarding what he thought “attorney” meant. Why not plead complete confusion: he thought an attorney was a platypus! Or a salve for athlete’s foot!

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“The Great Stupid” Chronicles: Dumb Tweet, Unintelligent “Intelligencer”

Richard Spoor, he tells us, is a public interest lawyer with a special interest in land reform, mines and communities and compensation for occupational diseases, and a “militant non-racialist,” whatever that means. His tweet is addled in so many ways:

  • The fate of these two lawyers turned terrorists is no more “sad” than any story of previously law-abiding citizens whose ethics alarms stop working as they knowingly break the law.
  • The fact that they are “young” makes it no more sad than if they were older, like 50. They’re not kids: both are over 30. They cannot claim immaturity or lack of experience. My son nearly ruined his life with a terrible, spur of the moment decision that could have killed him and others, but he was a teenaged male. He was also lucky.  Truly young people like he was wreck their lives with bad decisions every day. That’s sad. Adults doing it is something else.
  • Participating in a riot and throwing a Molotov cocktail is not the act of an “idealistic” person by definition. Breaking the law, engaging in violence, and trying to destroy property for no good reason does not embody “ideals.” They embody the opposite of ideals. If the two lawyers  were really idealistic, this wouldn’t have happened.
  • They didn’t “get wrapped up” in BLM’s racist movement, they joined it. It isn’t something that just happened to them.
  • “Moment of madness” is another version of Rationalization #19, The Perfection Diversion, or “Nobody’s Perfect!” and “Everybody makes mistakes!” People don’t suddenly throw Molotov cocktails and go “Ooopsie! What was I thinking?” That’s not “a mistake,” it is the culmination of many intentional acts leading up to a serious crime.

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From The Ethics Alarms Archives: Remembering The Amazing Elfego Baca

The previous post was discussing the topic of great Americans, and commenter valkygrrl asked about the statuary in the Capitol, where each state is allotted two statues to honor its past notables. This, in turn reminded me of my favorite New Mexican historical figure (who is not honored in the Capitol) and one of my favorite figures of the Old West, Elfego Baca (February 10, 1865 – August 27, 1945). There’s a post about him (with 11,621 and counting, there’s a post here about just about everything), and I decided that this was a good time to re-visit it, and him.

Baca is not only a Mexican-American, it could be argued that he’d be a more worthy member of the President’s Garden than a number of the “heroes” currently on the list…more fun, definitely.

Here’s the lightly edited post from 2013…Meet Elfego!

As frequent readers of Ethics Alarms know, I fervently believe that history is important, and that we all have a duty to remember and honor the remarkable Americans who have gone before us, their exploits, triumphs, struggles and achievements, both for our sake—for we can learn much from them—and theirs. I am constantly discouraged by the inspirational stories and fascinating historical figures who have nearly been forgotten. The schools don’t teach our children about them, and popular culture ignores them. This weakens the flavor and the power of our shared culture: it is wrong, that’s all.

I want to do my part to help keep alive the name and the story of a Mexican-American who may have faded from memory because the events of his life seem more fictional than real. Indeed, for most of my life, until a couple of years ago, I thought Elfego Baca was a creation of Walt Disney’s creative staff, who wrote a ten episode mini-series  called “The Nine Lives of Elfego Baca” for the “Disneyland” show (“Now…from Frontierland!”) in 1958. I loved that series, but it never occurred to me that the tales of a gunslinging, lawyer-sheriff in Old New Mexico could possibly have any connection to reality.

But they did. The real Elfego Baca was, if anything, even more improbable than his fictionalized counterpart, portrayed by a very young and athletic Robert Loggia, who is best known as the toy magnate who plays “Chopsticks” on the giant keyboard with Tom Hanks in “Big.” Loggia was one of my favorite character actors; he was also the drug lord killed by Tony Montana in “Scarface,” and the tough general in “Independence Day,” among many other memorable roles in a long career

Elfego Baca was born in Socorro, New Mexico in 1865. Elfego’s father was a gunfighter, and he wanted to be one too, though on the side of the law, so he would be less likely to go to jail, like his father did, for winning gunfights. The New Mexico territory was soon in the middle of a silver rush, bringing many outsiders into the region, a lot of them pretty wild. Baca acquired a sheriff’s badge through a mail-order house, and also bought two six-guns, which he taught himself to use with deadly precision.

A cowboy named Charley McCarty got drunk in the town where Baca was working as a store clerk, and did all the things you remember from old Westerns: whooping it up, shooting in the air, breaking windows, harassing townspeople, and bullying Mexicans by making them “dance” as he shot at their boots. Elfego Baca, then 19 years old, deputized himself by pinning on his fake badge and by the authority invested in himself, by himself, arrested McCarty at gunpoint. Continue reading

From The Ethics Alarms “Everything Is Seemingly Spinning Out Of Control!” Files, Legal Ethics Division

This story first came to the attention of the legal community in February, when a plaintiff in an employment discrimination suit against Chevron filed a Motion for Sanctions against Chevron’s Houston-based attorney, Dennis Duffy. It began by stating that Duffy had engaged in “a campaign of abusive and intolerable conduct that began with profanity-laced conversation” and escalated to “discriminatory slurs.” Then she alleged, things got really bad. The motion further alleged, Continue reading

Boy, This Guy Must Be One Hell Of A Lawn Mower!

This is going to be uncharacteristically short, but I feel the story deserves its own post

The Ohio Supreme Court has indefinitely suspended lawyer Austin Roan Buttars of Dublin, Ohio for transferring more than $147,000 from the accounts of a mentally ill client though the lawyer and his law firm were only owed about $19,000. Buttars acquired the other $128,000 by stealing from  or overcharging the client

Not that he didn’t work for his money. For example, the Court found that Buttars  charged his legal hourly rate for mowing her lawn.

I just thought you should know.

End Of The Day Ethics, 4/24/2020: A Curse, A Whorehouse, And The Grim Reaper

Yay.

Another weekend…

1. Nah, there’s no news media narrative coordination! Twitchy has pointed out the remarkable conformity of language regarding the Joe Biden sexual assault accusation. Last week, CNN reported that Democrats are “grappling with questions” about Tara Reade’s allegations. This week:

Politico: “The movement is facing a new challenge: how to grapple with the allegations against Joe Biden without tearing itself apart.”

Jake Tapper on Twitter: “Democrats grapple with questions about Tara Reade’s sexual assault allegation against Joe Biden…”

Jeremy Scahill at the Intercept: “My aim in writing this piece was to put into words what many principled people are grappling with right now, not to tell anyone what to do. Recognizing and understanding the problem helps us all decide what we believe is right…”

Mother Jones: “Sexual Assault Advocates Are Grappling With the Allegations Against Joe Biden”

All independent, objective journalists, of course…talking points? What talking points?

2. This “sharing a life” concept seems to be beyond you…over at Social Q’s a woman who is living with her boyfriend to ride out the pandemic complains, “He eats significantly more than I do, including some foods I don’t touch. Still, we split the grocery bill, and I am paying significantly more for food than usual. How should I handle this?” Columnist Phillip Gallanes’ advice is impeccably ethical:

Try stepping back and looking at the bigger picture…Sure, he eats more than you, but are you twice as messy (while sharing cleaning duties equally)? Do you watch three times as much Netflix (but split the bill in half)? And I haven’t even touched on emotional labor yet. ..if you want your partnership to survive even after we’re set free again, consider all the contributions each of you makes.

Nice try, Phil, but I’m guessing that question is signature significance, and the relationship is doomed. Continue reading

A Professional Ethics Case Study…From Broadway

Before you read the post, can you guess who that actor is in the Afro?

Lately I’ve been helping a lot of lawyers seeking to create so-called Rule 5.4 law firms in the District of Columbia. In these firms, unique to the District, non-lawyers can be full partners. This means that they can share in the firm’s fees, which is something otherwise forbidden and a major ethics breach in the 50 states. Lawyers cannot, must not, dare not share their fees with non-lawyers…unless those non-lawyers are partners in the same firm.

There are certain requirements for that to happen, and the main one is that the non-lawyers must be supervised by a lawyer in the firm to ensure that the non-lawyers don’t engage in conduct that would be unethical for a lawyer.  The legal profession is justifiably wary that the unique priorities of the legal profession cannot be easily absorbed or understood by those who have been trained and influenced in a different culture.

It is right to be wary. Lawyers have enough trouble avoiding violations of their own rules; doctors, accountants and others, steeped in different alignments of values, can’t just shift gears like suddenly being in a law firm is like test driving a sports car. For so-called “non professionals,” a category that is increasingly contentious, it may be even harder to adjust, if not impossible.

Lawyers are often  overly optimistic about their non-lawyer partners’ ability to learn the importance of keeping all client confidences, not crossing over into the unauthorized practice of law, sensing possible conflicts of interest and illicitly soliciting clients, or engaging in misrepresentation and deceit, to name just a few. Lawyers tend to think that all professional ethics should be fungible. It’s a dangerous misconception, and there is a little cautionary tale from, of all places, Broadway, that illustrates it.

It has been mostly forgotten, but in 1969, a musical called“Buck White” opened at the George Abbott Theater. Its unlikely star: draft-resisting ex-heavyweight boxing champion Muhammad Ali.

Yes, you read that correctly. Continue reading

Comment Of The Day: “From The Ethics Alarms Archives: ‘Age and the Judge’…” And A Current Day Example.

Pretty late last night, an Ethics Alarms post about mandatory ages of retirement for judges moved JutGory to offer this remarkable Comment of the Day, a tribute to a role model in his life. Coincidentally, it now follows yesterday’s last post, about a failed role model, or perhaps someone who should have become a role model but who never did.

I’m hopping Jut’s comment over a couple of waiting COTDs because I think it’s good to start off the day with some inspiration when possible.

Here is JutGory’s Comment of the Day on the post, “From The Ethics Alarms Archives: ‘Age and the Judge,’ And A Current Day Example.”

Meet Floyd.

And, if nothing else, this is the perfect post in which to mention Floyd.

Floyd was at the top of his class at West Point.

Scwartzkopf was a plebe when Floyd graduated.

Floyd injured himself parachuting into Germany on a training exercise.

He became a lawyer and the consummate Southern Gentleman.

He told me about the time that he handled one of those big divorces and his firm submitted a one-page bill in the amount of over $500,000.00 “For Services Rendered.”

He told me about the time he was able to obtain a Writ of Ne Exeat (I had never heard of it either).

And, after a career of legal practice in Georgia, this principled conservative southern lawyer relocated to the State that Mondale Won.

He did it for two reasons: his wife and one of his kids needed a change of environment because of pollen counts, etc., and Dick.

Dick was looking for a legal partner and Floyd was looking to move north. Dick was Floyd’s exact opposite in every way. Continue reading

Saturday Ethics Warm-Up, 2/8/2020: “Procrastinating To Delay Writing About Another Debate” Edition [CORRECTED]

Good morning.

Way, way too much ethics-related politics this past week. I keep getting complaints about all the political content, and it annoys me too, but I don’t know what kind of alternatives I have. Back in the sane days, the idea of a House Speaker planning on tearing up the official copy of the State of the Union speech would have been the stuff of Saturday Night Live…when SNL would make fun of Democrats, anyway. I’m trying to keep the politics to a minimum. I swear.

1.  The Astros cheating scandal, cont. Would you wonder about this answer? A.J. Hinch, the ex-Houston Astros manager who was fired and suspended by Major League Baseball for allowing an illegal sign-stealing scheme to be used by his players for the entire 2017 World Champion Astros season, finally sat down for an interview.   When he was asked whether Houston players had utilized buzzers in their uniforms to receive signsduring the 2019 season as some have claimed based on inconclusive evidence and rumors, Hinch only would answer, “The Commissioner’s Office did as thorough of an investigation as anyone could imagine was possible.”

Why not “No”? That was what reporters term a “non-denial denial.”

2. If they advised her to run her sick child through the washing machine and he drowned,  would that be their fault too? The death of a four-year-old boy named Najee is being blamed on an anti-vaxx Facebook group.

The boy had been diagnosed with the flu and the doctor had  prescribed Tamiflu. His mother sought advice from the Facebook group “Stop Mandatory Vaccination” on how to treat her son’s’ illness. The members told her to give the boy vitamins, botanicals, zinc, fruits and vegetables, and to skip the medicine.

“Ok perfect I’ll try that,” she responded. Later that night, Najee had a seizure and died. Continue reading