lawyers

Instagram Busts A Lawyer’s Lie

/ Jack Marshall / 5 Comments

http://www.youtube.com/watch?v=6VB9wziryJQ

New York-based lawyer Lina Franco had missed a November 23, 2016 filing deadline for a motion for class certification in a wage-and-hour law suit. Missing deadlines is a lawyer n0-no, and can get you sanctioned, sued, fired, or worse.  Luckily, Franco had an excuse, or so she thought.  She filed for an extension 16 days past the deadline, claiming that she had been forced to leave the country for the family emergency. She even submitted a flight itinerary showing she had flown from New York City to Mexico City on Thursday, November 21, and had remained there until December 8.

Let’s call this particular social media gaffe Ferris Bueller’s Mistake.  For Instagram photos from Franco’s public account indicated that she was in New York City and later Miami during that period. You know, like when Ferris turned up on TV at a ball game when he was supposedly sick in bed? Like that.  There was another teeny problem: November 21, 2016 was a Monday, not a Thursday, as the judge sanctioning Franco $10,000 pointed out in his ruling.

Franco now admits that she had gone to Mexico City earlier in November than she said, but that her mother’s medical diagnosis sent her “into a tailspin” causing her to miss the deadline and to submit the  false itinerary.

Now watch Instagram posts show up from Franco’s mother, with photos of her winning a seniors kickboxing tournament. Continue reading →

The Paid Expert Witness Problem [UPDATED And CORRECTED]

/ Jack Marshall / 22 Comments

“Check enclosed…”

When a lawyer’s expert witness testifies in a trial, the opposing counsel will always ask, “You’re being paid for your appearance today, isn’t the true?” The one time I was asked that question, I answered, “I’m being paid for my time, not my opinion.” Of course, many experts—yes, even ethics experts—are accepting payment for their opinion. The case of a Houston lawyer’s recent conduct, however, is the worst example of this reality crossing the ethics lines, hard.

Lawyer Mark Lanier had presented father-and-son orthopedic surgeons to the court and the jury as unpaid experts, emphasizing that they were testifying pro bono while the defendants’ experts had been bought. Naturally, this made them seem more credible to the jury. After the trial, however, and after the jury had awarded Lanier’s client  a handsome verdict and damages of $151 million, it was discovered that Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent “thank-you” checks totaling $65,000 to the surgeons after the trial, accompanied by notes of gratitude.

But they weren’t being paid for their testimony—at least, not when they were asked about it. Continue reading →

About The Cosby Verdict

/ Jack Marshall / 27 Comments

Serial rapist and sexual predator Bill Cosby was found guilty today. From the New York Times:

A jury found Bill Cosby guilty Thursday of drugging and sexually assaulting a woman at his home near here 14 years ago, capping the downfall of one of the world’s best-known entertainers, and offering a measure of satisfaction to the dozens of women who for years have accused him of similar assaults against them.

On the second day of its deliberations at the Montgomery County Courthouse in this town northwest of Philadelphia, the jury returned to convict Mr. Cosby of three counts of aggravated indecent assault against Andrea Constand, at the time a Temple University employee he had mentored.

The three counts — penetration with lack of consent, penetration while unconscious and penetration after administering an intoxicant — are felonies, each punishable by up to 10 years in state prison, though the sentences could be served concurrently.

Observations:

1 Good. Cosby should be serving hard time for rape. This verdict won’t accomplish that, and he has the resources to keep the matter tied up in appeals, maybe even forcing a new trial. Never mind: the verdict itself is satisfying punishment for a true ethics villain.

2. The verdict overcame the Cognitive Dissonance Scale, and that’s no mean feat. The jury deserves a lot of credit. Here, for the umpteenth time, is the scale:

Celebrities—or the characters they are identified with— are typically so high on the scale ( think of Bill/Cliff Huxtable as a plus 100) that even the evidence of a crime can’t pull them down sufficiently for jurors to be able to resolve the dissonance when they are thinking, “But he’s a great man and a wonderful person! How could he do these things?” The dissonance creates automatic reasonable doubt, all by itself, at least with enough jurors to ensure a mistrial, as in Cosby’s first trial. Hence O.J. Errol Flynn was acquitted of statutory rape. Robert Blake (“Baretta”) was acquitted of murdering his wife. Bill Cosby figured to have an unusually strong celebrity shield, but several  factors overcame it:

  • the amount of evidence against him.
  • the fact that what he did represented such a betrayal of his public image
  • the judge allowing, in the re-trial, other victims to testify
  • the series of previously admired show business figures who have been exposed as predators and sexual abusers since the Harvey Weinstein Ethics Train Wreck pulled out of the station, and
  • the fact that Cosby peak celebrity was decades ago.

If the trial had occurred at the time of “The Cosby Show,” I wonder if any evidence could have convinced a jury to convict him. Continue reading →

From The Ethics Alarms “Irony” Files: “The Association For Honest Attorneys” Has No Attorney Members…

/ Jack Marshall / 29 Comments

The ABA Journal reports that the U.S. Tax Court ruled against The Association for Honest Attorneys (Known as A.H.A! ) this month, denying  tax-exempt status for the organization. Why? Well,  it hasn’t had any lawyer members since its founding in 2003, and no lawyer could be found to represent the group in its tax dispute. The group’s founder, Joan Farr, spent association money at grocery stores, department stores and home-improvement stores.

 

The Michigan High School Ethics Bowl

/ Jack Marshall / 13 Comments

More than 100 high school students from across lower Michigan will gather February 17-18 at the University of Michigan for the fifth annual Michigan High School Ethics Bowl. The winner  will represent Michigan in the National High School Ethics Bowl held at the University of North Carolina at Chapel Hill in April. The Ethics Bowl is organized by A2Ethics, the University of Michigan  Department of Philosophy Outreach Program and the high school faculty coaches in the High School Ethics Bowl League. During the two-day competition, judges  evaluate teams’ responses to case studies written by local community members.

See? There is hope!

Here are the case studies the students will analyze, fifteen of them. I may do posts on a few of them suggestions are welcome. One of them, #2, I have discussed in several legal ethics seminars:

The Michigan Rules of Professional Conduct forbid lawyers from revealing information received in confidence (information protected by the “lawyer-client privilege” of a client), and similarly from using that confidential information for the advantage of a third person, unless the client consents.

You are a lawyer whose practice is focused almost exclusively on criminal defense. You have been active in the criminal defense bar association for several years, and you represent criminal defendants at both the trial and appellate (appeals court) levels.

One of your clients, Gilbert, age forty, is in prison for murdering a woman named Alice. You represent Gilbert in the appeal of his conviction and life-without-parole sentence. During confidential meetings with Gilbert, he confesses to you that he also murdered Bob, and he acted alone when he did. Although you were not involved with the case of Bob’s murder, you are somewhat familiar with it and know that a man named Enrique was convicted of Bob’s murder and is consequently serving a sentence of life without parole. Enrique’s conviction and sentence were recently reaffirmed after a thorough, years-long appeals process. Unless new evidence comes to light, he will not be able to appeal again.

After you are unsuccessful in challenging Gilbert’s conviction and sentence for Alice’s murder, you speak with him about Bob’s murder. He repeats his confession, this time in more detail, but refuses to consent to your request to reveal the confession on Enrique’s behalf.

Continue reading →

Morning Ethics Warm-Up, 1/27/2018: “If You Want It, Here’s How To Get It” Edition

/ Jack Marshall / 24 Comments

Good Morning (and I hope you all feel better than I do).

1 Tide Pod Update: If you want more libertarians, here’s how to get them.  At the Fortune site, Harold I. Ziegler writes,

Recently, videos have circulated on social media showing teens deliberately eating Tide Pods laundry detergent packs. All of this is part of what some call the “Tide Pod Challenge.” These pods contain highly concentrated laundry detergent under pressure and explode when bitten into, releasing their toxic contents and causing rapid ingestion and inhalation of dangerous chemicals. In my capacity as a toxic chemical researcher and consultant, I have investigated and seen several instances of the horrendous consequences that result from laundry pack ingestion: permanent burning of the mouth, throat, digestive tract, and lung tissue, and in some cases even death.Procter & Gamble (P&G), the manufacturer of Tide Pods, as well as other companies selling laundry detergent packs, have acted in the past to stem the misuse of their products. But these safety measures have failed.

It’s clear that laundry pods as they currently exist are too dangerous to be sold to the public. If P&G and other manufacturers can’t figure out a way to reduce the more than 10,000 injuries they cause each year, laundry packs need to be taken off the market.

If there is a better example of the thought processes that create nanny states and push society to eliminate personal responsibility, accountability and autonomy from its values, I can’t think of it. If people persist in the “Hit Yourself In The Head With a Hammer Challenge,” ban hammers.  How do intelligent, educated people end up thinking like this? More amazing still is that a consultant can put out an addled argument like this one for public consumption—Wait! Harold’s opinions make people stupid, and we can’t seem to stop people from reading them! Using Harold’s logic, we better ban freedom of expression! Or Harold!—and still be able to persuade clients to pay for his advice.

2. But if it’s more white nationalism you want, here’s how you get THAT…San Francisco Acting Mayor London Breed, an African-American, was voted out at by her colleagues Board of Supervisors in favor of Mark Farrell, who is white. The Horror.  will replace her as interim mayor until voters select a new mayor in June. As soon as it became apparent that the first African-American woman to lead San Francisco, albeit only because the elected mayor died suddenly, was being replaced by a white male, black citizens in the room erupted with rage, with many leaving in protest, and others shouting, “Shame, shame, shame.” “This is war!” some shouted as the meeting ended.

Nice.

In related news, the Congressional Black Caucus announced that it will boycott the State of the Union speech. Continue reading →

Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

/ Jack Marshall / 10 Comments

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading →

From The Ethics Alarms “Deceit Is Lying, And Stop Saying It’s Not!” Files: Baseball Commissioner Rob Manfred Is An Ethics Dunce, So Is Craig Calcaterra, And Since They Are Both Lawyers, They Should Know Better

/ Jack Marshall / 12 Comments

My goals are modest. Before I die, I would like to be able to say that my cyber-output on ethics accomplished a few basic things. One of them is a greater public understanding that deceitful statements—you know, like “I did not have sex with that woman,” or my recent favorite, knife-murderer O.J. Simpson saying  at his parole hearing, “I’m in no danger to pull a gun on anybody. I’ve never been accused of it. Nobody has ever accused me of pulling any weapon on them”—are lies. Not “technically true,” not “lawyerly phrasing,” but lies. Yesterday one lawyer who should know better incorrectly told his readers than another lawyer who engaged in deceit wasn’t lying. I’m sick of this.

I’m sure most of you don’t know or care, but the sad Miami Marlins, the National League baseball team recently taken over by a group headed by former Yankee shortstop Derek Jeter, has been selling and trading off its best players to pare expenses to the bone. This is a long-term strategy called “tanking,” in which a team rebuilds by playing horribly and getting high draft choices for a few years, eventually building up a young, cheap talent base of a winning team. A team’s fans tend to despise this approach, and Marlins fans more than most, since this is the third mass sell-off in the team’s short and ugly history.

MLB commissioner Rob Manfred appeared on Dan LeBatard’s ESPN radio show yesterday to discuss the most recent recent Miami fire sale.  LeBatard asked Manfred directly if he was “aware of Jeter’s plan to trade players and slash payroll.” Manfred ducked and weaved, and said, “We do not approve operating decisions by ownership, new ownership, current owners or not, and as a result the answer to that question is no.”

LeBatard called  this a lie, responding, “You can’t tell me you’re not aware of this…were you aware of this?”  Manfred then said, “No, we did not have player-specific plans from the Miami Marlins or any other team . . .” He also said that the league did not see a payroll plan from the Marlins “until two days ago.”

Yet  the Miami Herald reported after the interview:

A source directly involved in the Marlins sales process, after hearing the Le Batard interview, said, via text: “Commissioner said was not aware of [Jeter] plan to slash payroll. Absolutely not true. They request and receive the operating plan from all bidders. Project Wolverine [the name for Jeter’s plan] called on his group to reduce payroll to $85 million. This was vetted and approved by MLB prior to approval by MLB. Every [Jeter] investor and non investor has the Wolverine financial plan of slashing payroll to $85 million. Widely circulated.”

Here NBC baseball blogger Craig Calcaterra, formerly a practicing attorney, and thus accorded some credibility on such topics, wrote, Continue reading →

The Unprepared Judicial Nominee [Updated]

/ Jack Marshall / 12 Comments

 

http://www.youtube.com/watch?v=79Hq9yHtMCk

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading →

Yes, Catherine Gregory Should Be Fired

/ Jack Marshall / 34 Comments

http://www.youtube.com/watch?v=yJy3KOdyEus

Jonathan Turley is fascinated with the issue of whether  faculty members and employees generally should lose their jobs over controversial conduct outside of the workplace, particularly when it involves political speech. “There remains an uncertain line in what language is protected for teachers in their private lives,” the George Washington law professor writes. As I’ve discussed here before, I don’t think it’s nearly as uncertain as Turley does. When a faculty member’s conduct or statements on social media make an objective observer think, “No competent, professional institution would hire someone like this,” it’s bye-bye and don’t let the door hit you on the way out.

Even Turley seems to waver in this ridiculous case.

Conservative commentator Lucian Wintrich was about to speak on the topic “It’s OK to Be White”—I LOVE that topic!— at the University of Connecticut when a protestor grabbed his notes. He in turn tussled with her, causing a near riot, and campus police arrested him.  The protestor was Catherine Gregory, associate director of career services  at Quinebaug Valley Community College.

Today the University came to its senses (or realized public opinion wasn’t going to allow it to get away with its attempt at liberal fascism) and dropped the charges against Wintrich  while charging Gregory.

What should happen to Gregory?

Gregory’s lawyer, Jon Schoenhorn argues that his client was justified in her actions because Wintrich’s views constitute “hate speech” and his actions “are beyond the First Amendment” in their insults to minorities. This is obviously nonsense, and I would argue it even qualifies as a frivolous and dishonest defense, an ethical violation. Unless the man is complete nitwit, he must know that there is no excluded variety of speech called “hate speech” that the First Amendment doesn’t protect. He’s lying, or he’s too incompetent to be a lawyer. Continue reading →