lawyers

Comment of the Day: “Ethics Train Wreck Extra: the Lawyer, the Advisor, and the Kennedy”

/ Jack Marshall / 8 Comments

Let's give a warm, Ethics Alarms welcome to attorney MAX KENNERLY!

Max Kennerly, the attorney who has argued that Sandra Fluke could legitimately sue talk show host Rush Limbaugh for his on-air insults, rebuts the Ethics Alarms post finding his argument disturbing. I’ll have a response at the end. Here is his Comment of the Day on “Ethics Train Wreck Extra: the Lawyer, the Advisor, and the Kennedy”:

“Who said anything about “silencing?” Defamation is a civil claim that, when proven, results in a monetary judgment, nothing more. Limbaugh’s still free to say what he wants.

“I assume your response to the “it’s not silencing” argument is something like, “he’s not technically silenced, but his speech is chilled.” To that, I ask which scenario is more chilling: Continue reading →

The Legal Profession’s Muddled Standard For “Fitness To Practice”

/ Jack Marshall / 3 Comments

OK, he has a temper, but hire him as your lawyer, and you can trust him with your life!

I confess: my profession’s standard for discipline bewilders me, and leads me to believe that nobody really knows what kind of conduct by a lawyer should dictate that he or she should be kicked out of the profession. I was reminded of this when I read a report about a former associate at a large New York law firm whose license was suspended for three years because he physically abused his girlfriend. A hearing panel had recommended a 60 day suspension, but the Appeals Court decided on three years.

Here is the basic rule regarding misconduct by lawyers, from the ABA’s Model Rules:

Maintaining The Integrity Of The Profession

Rule 8.4  Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Tell me: which provision did the brutal lawyer violate? Continue reading →

Ethical Jobs Plan: Let’s Put Lawyers in the 99%

/ Jack Marshall / 17 Comments

19th Century American lawyer without law degree or bar exam credentials. Reputed to be effective, honest.

Despite the fact that such a change might be ruinous for me personally, since a large portion of ProEthics income comes from providing bar association-mandated continuing legal education courses on ethics, I have to endorse the arguments made by Brookings Fellow Clifford Winston and George Mason Law Professor Illya Somin for eliminating barriers to entry in the legal profession, such as mandatory law school attendance, the bar exam, and bar membership.

Winston writes:

“For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance. Continue reading →

Young, Gullible, Lazy, Unimaginative and Unbelievable: I Wonder Why This Lawyer Has Trouble Finding A Job?

/ Jack Marshall / 135 Comments

Well, clearly “sign-maker” isn’t an option…

I have some observations regarding this unemployed lawyer’s lament as he Occupies Wall Street.

It is true that many law schools have been exposed lately for inflating their employment statistics. The American Bar Association announced last month that it was drafting a rule including sanctions for law schools that intentionally falsify jobs data, possibly including monetary fines or the loss of accreditation. That is as it should be.

Nonetheless, I am dubious about the sign’s 99.9% claim, especially in the absence of a named institution. Promising 100% employment to any group seems excessive, and a person of normal intelligence would, or certainly should be skeptical. Thus, after only the first line, I am dubious about the candor and/or judgment of the sign-holder.

I am also dubious about his account of his conversation with the Dean. Do you know what the unemployment rate was for lawyers in 2010, according to the U.S. Department of Labor? Continue reading →

An Appropriate Limit on the First Amendment Right To Be A Total Jerk

/ Jack Marshall / 4 Comments

"Pardon? I'm not sure I understood that last remark."

If you peruse the various debates on Ethics Alarms, you will note that every time someone writes or says something cruel, dishonest or uncivil that appropriately brings down criticism or worse on the miscreant’s noggin, he and his defenders  will argue that the First Amendment should render them immune from the consequences of their words. This is not what the First Amendment is about, however. It is about the government not being able to punish them for what they say, with some exceptions. Even then, it is possible to be so inarticulate in your jerkish expression that your utterances are beyond even that constitutional protection.

For example, when you bark like a dog.

Or to be more accurate, when you set out to tease and annoy a police dog by barking. Mason, Ohio has an  ordinance making it a crime to “willfully and maliciously taunt, torment, [or] tease … any dog used by the Police Department in the performance of the functions or duties of such Department.” That’s exactly what Mason Police Officer Brad Walker found a drunken Ryan Stephens doing to Timber, a K-9 German Shepard behind a screen in his police cruiser. Continue reading →

The Indescribable Leroy Fick

/ Jack Marshall / 37 Comments

Fick, n.: "One who shamelessly and openly violates cultural norms of fairness and decency out of selfish motives"

If Ethics Alarms hadn’t awarded Donald Trump the Jerk of the Year Award, would Leroy Fick deserve it instead?

If Keith Olbermann was still giving out his “Worst Person ” titles, would Leroy Fick retire the category?

What is the right term for someone as shamelessly self-centered, and greedy as Leroy Fick?  “Bounder” is too dignified. “Creep” is too mild. “Bum’ is too sympathic. “Asshole’ is too generic. I’ve been searching all night; there isn’t a word in existence that does him justice.

Leroy Fick is a 59-year-old Auburn, Michigan man who won $2 million in a state lottery last June. Nevertheless, he is still living on food stamps, because eligibility for food stamps is based on gross income,  and  lottery winnings  don’t count as income. As long as Fick’s gross income stays below the eligibility requirement for food stamps, he can legally qualify for them, and despite the fact that  he knows they are only meant to help support low-income families, and despite the fact that they are paid for by taxpayers, and despite the fact that Michigan, like most states, is swimming in red ink, Leroy Fick intends to keep letting the state help feed him just as if he was destitute.

“If you’re going to try to make me feel bad, you’re not going to do it,” Fick told WNEM-TV in Saginaw on Monday. Naturally, Fick has a lawyer whose task it is to excuse his client’s astoundingly irresponsible conduct. He says that Fick “has done nothing wrong. It’s the system that needs (to be) changed.” Continue reading →

Are Conviction Bonuses For Prosecutors Ethical?

/ Jack Marshall / 10 Comments

Next, how about a bonus for confessions?

Sometimes a story starts the ethics alarms ringing so loudly that it is hard to think about anything else. It is rare, however, to have this occur when it is not entirely clear what is so unethical. An unusual bonus arrangement in Colorado is in this category.

Carol Chambers, the District Attorney for Colorado’s Eighteenth Judicial District, offers financial incentives for felony prosecutors who meet her office’s goals for convictions.  Plea bargains and mistrials don’t count in the incentive program; they have to be trial convictions.  The bonuses average $1,100, and Chambers says she gives them out to encourage prosecutors to bring her district’s rates in line with other jurisdictions in the state. No other Colorado DA gives out bonuses, or bases evaluations on conviction rates. Continue reading →

The Professions Most Likely to Cheat on Their Taxes?

/ Jack Marshall / 8 Comments

Gee, where do "Treasury Secretaries" fall on the list?

A study of I.R.S. data by a University of Chicago graduate student, now Doctor, Oscar Vela,  produced the following list of the professions most likely to file fraudulent tax returns, at least according to his analysis. Make of it what you will. The Time Magazine website blog post about the list is worth reading, first for the blogger’s highly questionable theories explaining, for example, why lawyers aren’t on it, but mostly to see conclusive proof that Time is hiring English-as-a-second-language night students, relatives of Ko-Ko the talking gorilla, or stroke victims to write their blogs. Sample sentence: “His conclusion was that as much as we would like to think so we pay taxes out of  the goodness of our hearts, or even because we are fearful of fines or worse.” Henry Luce just did a back-flip in his grave.

Dr. Vela’s theory is that the professions that are required to maintain a perception of integrity are less likely to cheat. Let us say that I am dubious. Why then are scientists so high on the list?

Here it is: Continue reading →

Texas Lawyers And Sex: Not Horny, Just Wise

/ Jack Marshall / 3 Comments

"Now about my fee...."

Texas lawyers have voted down a proposed ethics rule that specifically condemned attorneys having intimate relations with their clients. Naturally, the media will represent the decision as the predictable reaction of a bunch of high-rolling, fun-loving Texas legal horn-dogs to people trying to spoil the perks of their job; even the legal media has settled on a misleading headline:  “Texas lawyers reject ban on sex with clients.” But Texas lawyers don’t think that sex with clients is ethical, or want it to be ethical. Like the attorneys in many other states, they just think having a rule on this topic is bad idea. And they are right. Continue reading →

Ethics Hero: New York Courts

/ Jack Marshall / 11 Comments

Bravo!

New York’s court officials have decided to bar New York’s elected judges from hearing cases involving lawyers and others who make major financial contributions to their campaigns. The New York Times reports that the new rule of the state court system will be announced this week by Jonathan Lippman, the state’s chief judge. “It is believed to be the most restrictive in the country, bluntly tackling an issue — money in judicial politics — that has drawn widespread attention,” said the paper.

The new rule decrees that “no case shall be assigned” by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years. Continue reading →