legal ethics

Observations Upon Getting Fired By My First Bar Association CLE Client…

/ Jack Marshall / 7 Comments

I got fired again yesterday. Sometime I need to go back through my memory banks and figure out how many times this has happened, but it’s a lot. My proclivity for getting canned was a main motivation for me starting my own business thirty years ago, because I was reasonable certain that I wouldn’t fire myself, and that I could probably talk my late wife, the company’s COO, from doing it.

Technically one could say that my company, ProEthics, was fired, but since I’m the only employee now, that would be nit-picking. This bar association had contracted with me as its primary legal ethics teacher for the entire 30 years, with my handling between three and five three-hour seminars every year, plus the ethics segment in the monthly bar’s orientation session for new bar admittees. Its support was a substantial reason Grace and I were willing to take the plunge as a small business in the first place.

By the time the axe fell, on a Zoom call, naturally, I pretty much knew what was coming. The CLE director, whom I had worked with amicably for ten years, had suddenly stopped responding to my emails until he sent me the dreaded “we need to talk” message last week. There had been no incident, screw-up, failure or apparent precipitating catalyst for the end that I could detect: my participant evaluations have remained in the 4-5 range in all categories on a 1-5 scale for all three decades years. My last seminar, an adaptation of my one-man show about Clarence Darrow with ethics commentary on the issues raised by his career, was especially popular, in great part because of the talented D.C. actor who played Clarence, Steve Lebens. One lawyer rushed up and after the program, grabbed my hand, and said the seminar had changed his whole perspective on practicing law as he choked back tears.

To be honest, the blow yesterday was more sentimental than anything. Dr, Fauci’s stupid Wuhan virus lockdown killed the live seminar part of my business, and it never recovered. I was paid by the head by this bar association as a matter of loyalty and courtesy, and the heads had almost completely disappeared. I used to have 100-150 lawyers in a classroom; for the last few years it’s been less than ten, with maybe 20 more online or zooming, sometimes a few more. Lawyers don’t like mandatory CLE, and the lockdown gave them an excuse to use remote technology and videos, meaning that they could be doing billable work or playing with their dogs, with no one the wiser.

Those methods don’t work pedagogically nearly as well as face-to-face training, and everybody knows it; they also do not let me do what I do better than most legal ethics teachers, which is engage and entertain while teaching. Most of my income is from expert consulting now, which I am good at but nowhere near as much fun. This association’s seminars were a loss leader for me by the end.

Still, the “we’ve decided to go in another direction” message was a bit mysterious. I was told by the CLE director that the orders came from “upstairs.” The numbers still said I was their best and most popular ethics teacher: why the new “direction”? I’ve won the bar two national awards for innovative CLE, and do the only musical ethics programs in the field with my long-time collaborator Mike Messer. What’s not to like?

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Why People Don’t Trust Lawyers…

/ Jack Marshall / 3 Comments

A personal injury law firm whose name will remain unspoken “explains” on its website why exorbitant contingent fees are justifiable and ethical. The page says that a lawyer receiving a higher potential fee will probably do a better job representing the client than one who will receive a lesser proportion of the settlement or damages: more motivation!

This is exactly the opposite of what the ethics rules of every jurisdiction mandate. A lawyer is obligated to represent a client to the best of his or her ability regardless of the fee, including when the representation is pro bono, that is, for no fee at all. A lawyer who calibrates the effort and passion he or she puts into a case based on the size of the fee, negotiated or potential, is an unethical lawyer, an untrustworthy lawyer.

A bad lawyer.

And yet here is a law firm stating, “The more you pay us, the better job we’ll do.”

Disgusting.

But, somehow, not surprising….

I’m Not Forgetting The Alamo This Year, and Other Concerns…

/ Jack Marshall / 5 Comments

That is one of several plaques around San Antonio that memorializes William Barrett Travis’s desperate but inspiring letter on this date in 1836 calling for assistance as the fortress Travis commanded found itself under siege by the Mexican army. Last year at this time, I’m ashamed to say, I was too preoccupied to write about the Alamo, its defenders and its importance in American history and lore. I’m just as preoccupied now, frankly, but also determined not to neglect my duty to give proper respect and acknowledgement to 220 or so volunteers who, by their courage, comradery and dedication to a cause, displayed the best of the American spirit. Travis, Bowie, Crockett, Bonham and the rest would have really gotten a kick out of Trump’s post-assassination attempt theater.

Meanwhile,

1. I won’t be using the History Channel’s daily history prompts from now on. It seriously hacked me off, first by insisting that I consent to an A&E “Consumer Agreement” and not making a way to consent to it evident, but worse, presenting me with this monster (skip to the end; for God’s sake don’t try to read it!)

I have lectured and written abut this before. No ethical lawyer should prepare such a thing which they know with 100% certainty that literally no one can or will read. That’s not informed consent. That’s chicanery. Nor should a consumers have to pay lawyers to explain what what they are agreeing to. If I were asked to advise a client about the propriety of inflicting such a document on anyone, I would a) end up charging them several thousand dollars for my time and b) tell them that if they couldn’t cut the agreement down to three pages while defining every legal term in it, I would regard it as signature significance for an untrustworthy company. Give consumers a video to listen to that explains what the document covers in simple English. Something…anything but that mess. This is how Disney ended up using the agreement to sign up for a free trial on Disney+ to try to dodge a negligence suit at EPCOT. Over the past year, as I have been digging out from a financial disaster, I’ve become really good at saying, “You know what? I don’t want or need this service enough to tolerate the way you manipulate and mistreat customers. Screw you.”

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On the Eric Adams Prosecution and the Sassoon Letter

/ Jack Marshall / 9 Comments

I admit it: I’ve been avoiding this large, stinky elephant in the ethics room because I have nothing good to say about any side of the controversy.

It’s all very depressing. The organization I belong to consisting of just about every legal ethics teacher, lawyer and consultant in the country immediately showed (again) how Trump Deranged and biased the membership is. After the resignation letter of February 12 from then S.D.N.Y. U.S Attorney Sassoon to U.S.AG Pam Bondi refusing to carry out the DOJ’s directive that she move to dismiss the then pending corruption indictment against NYC Mayor Eric Adams (Quote: “It is a breathtaking and dangerous precedent to reward Adams’s opportunistic and shifting commitments on immigration and other policy matters with dismissal of a criminal indictment….Such an exchange…violates common sense beliefs in the equal administration of justice, the [DOJ’s] Justice Manual [for federal prosecutors], and the Rules  of Professional Conduct.”), the listserv was immediately awash with comments like this one: “Once the rule of law cease, so does democracy. A client has the right to instruct an attorney; the attorney may seek to be relieved if the client’s directive is offensive. But what do we do when a “client”, or anyone, seeks to end democracy?”

Riiiight: not continuing with what looked a lot like a politically-motivated prosecution of Adams by the Biden Administration threatens democracy.

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Comment of the Day: “Interestingly, Being an Idiot Does Not, In The Eyes Of The Florida Bar, Make One Unfit To Practice Law”

/ Jack Marshall / 1 Comment

This Comment of the Day from the stellar Harkins household—this is from Ryan Harkins–was just posted three days ago and it seems like eons. It responds to another one of my arguments that sufficient demonstrations of stupidity by lawyers even outside the practice of law should be grounds for disbarment—a suspension isn’t enough, because such a lawyer will not become smarter after a professional “time out.” I think the first time I suggested this reform to legal discipline was when “The View’s” token lawyer, racist Sunny Hostin, suggested that eclipses and earthquakes were caused by climate change. It upsets me just think about the fact that this idiot has a law degree.

Here is Ryan’s Comment of the Day on the post, “Interestingly, Being an Idiot Does Not, In The Eyes Of The Florida Bar, Make One Unfit To Practice Law”…

***

A basic and important rule of gun safety, perhaps the preeminent rule, is that you should never point a gun at anything you don’t intend to shoot. Playing around with a gun in the fashion that Medina did shows a disturbing lack of gun safety in particular, but of the principal normalization of deviance in particular.

To delve into a little bit of brain science, in following the cognitive-emotive-behavioral model, we start with a desire. Perhaps in Medina’s case, it was simply to have fun. But how would he possibly conclude pulling the trigger of an unloaded gun is fun?

There are a large variety of ways we can try to satisfy our desires. In the case of hunger, we could seek satiation from a myriad of venues. In the case seeking stress relief, we could seek out a movie, a game, exercise, or any of a host of other options. But there are options we can choose from that are unhealthy, dangerous, or even illegal. When presented with all these options, our brains experience a byplay between thought and feeling. Does this option satisfy? The emotions clamor for a particular avenue, and cognition weighs the risks and benefits. If I eat a salad, I might not feel satiated, but if I eat a Hardee’s Monster Burger, I’ll be consuming far too many calories. But the salad may not be very tasty, and the Monster Burger is delicious. Whichever way I choose, my brain will record the success or failure of the endeavor, and the next time I am hungry, I will have a precedent to fall back on. They byplay between cognition and emotion in subsequent encounters proceeds much more quickly. The Monster Burger was indeed delicious, filled me up, and I didn’t seem to suffer any negative consequences. So the next time, my brain is patterned to lean toward the Monster Burger because of the positive experience.

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Interestingly, Being an Idiot Does Not, In The Eyes Of The Florida Bar, Make One Unfit To Practice Law

/ Jack Marshall / 4 Comments

Florida lawyer Albert V. Medina, who practices in Boca Raton, had his law license suspended for 10 days, and you’ll never guess why.

Medina shot his brother in the arm while fooling around with a gun, pointing it at his brother and pulling the trigger. The brothers said that they engaged in this “horseplay” frequently: the wounded brother said his sibling had aimed an unloaded pistol at him and pulled the trigger ten times before, as a joke. This time, however, it was loaded.

The brother signed an affidavit affirming that the incident was unintentional, so the criminal case was resolved by Medina’s pleading guilty to the misdemeanor offense of culpable negligence causing injury to another. Medina has been a member of the bar since 2014 with no prior ethics offenses.

I don’t care. The idea of the legal discipline system is to protect the public from lawyers who are demonstrably untrustworthy or unfit to practice law for other reasons. Morons are unfit to practice law, and you can’t fix stupid. What is this guy, eleven years old? Anyone who aims guns at others “as a joke” and pulls the trigger shouldn’t be trusted with sharp objects, much less with the legal affairs of members of the public.

Absent a successful brain transplant, Albert V. Medina should have been disbarred.

Ethics Verdict: Stanford Law Prof. Mark Lemley and Law Firm Lex Lumina Are Unethical

/ Jack Marshall / 13 Comments

…and their conduct in the Facebook matter is damaging to the profession of the law.

Intellectual property expert Mark Lemley, a professor at Stanford Law School and a partner at law firm Lex Lumina, represented Facebook in the copyright case brought on behalf of creators claiming the platform infringed their intellectual property. Yesterday he “fired” his client, despite believing that Meta’s case was strong. His stated reason was that he is outraged at Mark Zuckerberg and Meta’s “descent into toxic masculinity and Neo-Nazi madness.” His law firm then proceeded to back him up.

Here is Lemley’s Facebook post announcing his decision:

Meanwhile, the managing partner of his woke law firm followed with the statement that “Money can’t buy everyone. We’re proud to be a firm that doesn’t sell out our values. Sadly, it seems this is becoming a rarer and rarer quality in America today.” Another partner said, “When we started Lex Lumina, one of the things we committed to was only taking cases we felt good about, on the law and in terms of who we represented. Proud to be working with my friend and partner, Mark Lemley, who lived out our commitment today.”

This is labeling unethical lawyer conduct as ethical.

Lemley went on to post a reiteration of his decision on LinkedIn. It wasn’t “the right call.” If Lemley and his firm had refused to represent Meta in the case of Kadrey v. Meta Platforms initially, there would be no ethics foul: nothing in the Rules of Professional Conduct mandates that any lawyer accept any client, although the traditional ethos of the profession strongly encourages lawyers to do so. However, dropping a client because of what that client has done or said that has nothing to do with the case of the representation, while not a strict rules violation, is unprofessional and creates a dangerous slippery slope…one that many in the legal profession have been leaping down in recent years.

Noteworthy is the fact that Lemley is no legal ethics expert. His actions demonstrate that vividly, and his post is a flashing sign stating, “I am biased, Trump Deranged, a Democrat, and believe in good censorship.” Got it, Professor.

Naturally, the woke legal hacks at Above the Law love this, and ratioanalizes it with an argument that has been rife since the corrupted legal profession started behaving like the restaurants who won’t serve people wearing MAGA caps. Joe Patrice, the head ideologue at Above the Law writes,

A sanctimonious segment of the legal profession harps on the idea that “everyone is entitled an attorney.” Except no one is entitled to you as an attorney. Frankly, no one is entitled to anything in a civil case and to the extent society needs to extend more protections to indigent clients on the wrong end of life-altering civil actions — landlord-tenant cases for instance — there’s definitely no such entitlement for a multibillion-dollar company in a copyright dispute.

Representing a client is a business decision. Some lawyers thrive as counsel of last resort and model their business around the willingness to represent unpopular clients. Other lawyers build their business on crusading for good causes. A whole lot of lawyers exist somewhere between those poles. In fact, a lot of deep-pocketed clients also don’t want to work with firms associated with unpopular causes — that’s a business decision too.

There’s nothing wrong with any of these approaches. Lawyers should feel free to build their practice however they want.

What is wrong with that argument is that it violates Kant’s Rule of Universality, the “What if everybody did it” test that is part of the philosopher’s categorical imperative. Patrice’s standard, and accepting Lemley’s conduct, would mean that certain citizens and organizations could be left without legal representation entirely because they were regarded by a politicized legal profession (and an ethically addled public) as “bad.” While it is accurate to assert that the Sixth Amendment does not guarantee a citizen legal representation in a civil (as opposed to a criminal) case, the legal professional has long embraced the principle that the same ethical and practical justifications should apply. If we accept Patrice’s ethically ignorant (or deliberately misleading) argument that whether to accept a representation is purely a business decision, that allows lawyers and firms to avoid unpopular clients, leaving them potentially at the mercy of the polls and bias in a rigged legal system.

This is what the actions of Lemley and his firm are pointing to. It is the reason Donald Trump has had difficulty hiring lawyers and getting competent legal assistance. Firms and lawyers get threatened by clients, and in the constant tug-of-war between the profession of law and the business of law, business now prevails. Once, before the progressive bias in laws schools and among lawyers became the status quo, the mission of representing unpopular causes and clients, even when the attorneys for these clients personally disagreed with and even deplored their conduct was seen as part of the legal profession’s mission. Wall Street lawyers represented accused terrorists after the bombings of 9/11 after public figures called for their firms to be boycotted. When Coca-Cola virtually extorted their law firm into dropping its representation of the House Committee defending the Defense of Marriage Act before the Supreme Court, the partner handling the case, Paul Clement, wrote in his letter of resignation in protest of the decision, that “defending unpopular positions is what lawyers do.” Similarly defending unpopular clients is what lawyers must do and be honored for, or we have no longer have an equitable legal system.

The unethical principle Lemley is advocating is worse than opposing taking on an unpopular position: he seeks to justify abandoning a position he feels is valid because his client’s policies no longer please him. I have vowed to promote this section of the Rules of Professional Conduct because it is such a crucial one for maintaining the integrity of the profession and trust in its members:

“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

It should be obvious that if it becomes acceptable for lawyers and firms to refuse representations because they fear being regarded as endorsing a clients’ “political, economic, social or moral views or activities,” the legal profession will have nullified that critical standard in practice, and the public will be correct to assume that if a lawyer or firm represents an unpopular cause or individual, those lawyers agree with and endorse them. This is what ideologues like Joe Patrice want, a legal system as polarized as the political system, where one can tell the “good” lawyers from the “bad” lawyers by whom they choose to represent.

Dropping a client one has already accepted, which is what Lemley has done, is worse still. In his letter excoriating his former firm, Clement quoted Griffin Bell, a judge and former U.S. Attorney General, declaring that once a lawyer has accepted a case, it is the lawyer’s duty and ethical obligation to continue the representation. In 2011, when the DOMA controversy erupted, Clement’s position was almost unanimously praised within the profession. Theodore Olson, the late conservative attorney, praised Clement’s “abilities, integrity, and professionalism”.” Olson, who like Clement was a solicitor general during the George W. Bush administration and was a successful Supreme Court advocate, told the media, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.” Seth Waxman, who served as solicitor general during the Bill Clinton administration, said, “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions.” In approving Clement’s stand, The Washingtonian observed, “There are countless examples of law firms taking on and standing by controversial clients, even at the risk of their public images.” There are fewer and fewer examples now, however. This is the dystopian legal landscape that Lemley and his firm are promoting, and it is an unethical one.

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The 2024 Ethics Companion To “Miracle On 34th Street” [Updated, Expanded and with a New Introduction]

/ Jack Marshall / 7 Comments

2024 Introduction

When I look back on what I wrote to introduce the greatest of all Christmas movies last year, I almost have to laugh, if I could laugh.

“What makes ‘Miracle on 34th Street” the most appropriate classic Christmas film for 2023 is its theme: the importance of conquering cynicism and  pessimism, and always keeping one’s mind and heart open to hope…. I know my year has been especially miserable on multiple fronts. Nonetheless, I remain, at heart, about 12 years old. The same things make me laugh; my level of optimism remains high; I believe in this nation’s miraculous ability to somehow get out of the fixes it gets itself into; I’m still a romantic, and, yes, I think with a little luck and one more starting pitcher, the Boston Red Sox can make it to the World Series next year. I am being constantly confronted with old friends, some much younger than me, who have suddenly decided to be old: they think old, they act old, and they seem to have given up the future as irrelevant. The Santa Claus myth represents faith in the possible, or rather the impossible. Yes, its easier when you are a child, but it is worth the fight to never lose the part of you that still believes in magic and miracles.”

What a joke on me. My wife died unexpectedly in February. Hidden financial horrors were uncovered that she had been hiding from me. My son decided he was trans; a lot of those friends who were acting old ended up acting dead, and rather convincingly. I lost my last connection to my mother’s family when Aunt Bea died at 96; my mentor and Most Unforgettable Person, Tom Donohue of the U.S. Chamber of Commerce, died as well; one of my closest lawyer clients died too. Another loss that I felt: Luis Taint, the Boston Red Sox pitcher who was at the center of some of my most cherished baseball memories, died this year. A big theatrical project I had been working on for six months was abruptly cancelled (the theater was condemned as structurally unsound). Worst of all, the Red Sox had a star-crossed, frustrating season: if there’s anything worse than watching baseball alone, it’s watching your team lose alone.

Indeed, I do, as Auntie Mame sang, “need a little Christmas,”  but it is very little indeed this year. Luckily for me, there’s a song for that: “Have Yourself a Merry Little Christmas,” from “Meet Me in St. Louis.”

So the Christmas movies are about it for me this holiday season. I’ve seen “It’s a Wonderful Life,” “White Christmas,” my favorite version of “A Christmas Carol,” “The Santa Clause,” and even “Holiday Inn.” (No, “Die Hard” and “Die Hard 2” are not “Christmas Movies.) “Elf” doesn’t make the cut; I suppose that I’ll see “A Christmas Story” eventually, though I am sick of it, and Grace’s complaints about Melinda Dillon’s hair haunt me. I will revisit “Home Alone” and “Home Alone 2.” I’m saving “Miracle on 34th Street” for tonight, Christmas Eve.

I confess, I believed n Santa Claus until I was 12. I didn’t want to give the fantasy up: I loved magic, and my parents always tried to make the season magical. (More of that later.) Grace and I tried to do the same with Grant, now “Samantha,” but he was a non-believer by the third grade. Is there anything more joyful to see than the look on a child’s face as he or she sees what Santa has delivered? Will anything feel that wonderful again?

“Miracle on 34th Street” is an ethics movie in part because its artists committed to telling a magical story and charming audiences by working as an ensemble selflessly and  efficiently. The director,  George Seaton also  wrote the screenplay, and it won him an Oscar. He cast his movie brilliantly, and making the correct but bold decision to stick with a matter-of-fact, realistic, unadorned style that keeps the story grounded in reality while it spins off into fantasy.

“Miracle on 34th Street” is about the importance of believing in good things, hopeful things, even impossible things. The movie reminds us that wonderful things can happen even when they seem impossible, and that life is better when we believe that every day of our lives. I’m trying.

One thing this film does well is to concentrate on the secular holiday without any allusions to the religious holy day, but not being obnoxious about it. “It’s a Wonderful Life” straddles the line very cleverly: it begins in heaven, after all. All the “A Christmas Carol” films include Bob Cratchit telling his wife that Tiny Tim mused about how his disability reminded people of Jesus’s miracles at Christmastime, and that’s Dickens’ only reference to Jesus in his story. On the offensive side is the Rankin-Bass animated “Rudolph the Red-Nosed Reindeer”—I can’t believe they still show that thing—when the “stormy Christmas Eve” causes Santa to decide to “cancel Christmas.” I’d say that’s above Santa’s pay grade, wouldn’t you agree? It also suggests that Christmas is only about gifts and children. (Do parents today explain that the singing snowman who narrates the story is based on (and looks like) the real person who also sings the most memorable songs? They should. Burl Ives had a fascinating life and a varied career, and those kids will probably be hearing him sing “Have a Holly Jolly Christmas” for the rest of theirs.

Last year I discussed the many remakes and the fact that they all fail to equal the original. I wonder why this, of all the Christmas classics, has inspired so many remakes. Nobody would dare remake “It’s a Wonderful Life.” I think it’s because the story connects with children as well as adults, and there is a sense that a black and white movie very obviously set in the 1940s seems too distant. 

Interestingly, all of the perennial Christmas movies have been made into stage musicals of varying success—“White Christmas,” “It’s a Wonderful Life,” “A Christmas Story,” “Elf”—- but “Miracle on 34th Street” flopped so badly when Meredith Willson [“The Music Man”] adapted it as “Here’s Love” on Broadway that nobody has tried again. The show included the song, “It’s Beginning to Look a Lot Like Christmas,” which Willson wrote long before the show was assembled, and it was still the best song in the weak score. At one point John Payne took over the part of Fred Gailey, reprising his role in the film. But as with all the movie remakes, the show missed Edmund Gwynn, the best Kris Kringle of them all.
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Two Faint Cheers For the Colorado Supreme Court in “Jerk vs. Jerk”

/ Jack Marshall / 6 Comments

It looks like the political correctness Furies who have been swarming around Jack Phillips, the Masterpiece Cakeshop owner whose refusal to bake, decorate and sell same-sex wedding cakes had him targeted for destruction have finally been foiled.The Colorado Supreme Court has dismissed the latest lawsuit against him, though not on the merits. Legal Insurrection has detailed coverage and a retrospective on this almost decade-long drama here.

Remember the old Mad Magazine series called “Spy vs. Spy”? This has been “Jerk vs. Jerk.” I sided with the baker in the original lawsuit over the same-sex wedding cake, though holding even then that the adversaries were being unreasonable. Ethics Alarms advised one, “Oh, bake the damn cake!” and the other, “So find another bakery!” That battle got all the way to the U.S. Supreme Court, where the baker won on what non-lawyers call “a technicality.” Then Phillips was targeted again, as LGTBQ activists apparently considered it a matter of honor to bend him to their will.

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Why I Just Billed A Client For My Dog’s Evening Walk….

/ Jack Marshall / 19 Comments

In “The Firm,” the corrupt lawyer played by Gene Hackman tells new associate Tim Cruise that he is supposed to bill for every second he is thinking about a client’s work, in the shower, on the toilet, at the movies. Inflating fees is one of the most flagrant and common of all lawyer misconduct, and it is almost impossible to prove unless a lawyer does something stupid like billing more than 24 hours a day (and an amazing number of lawyers have tried that). In the film version of “The Firm,” in fact (though not in the novel) Cruise’s character uses proof that the mobbed-up firm he worked for was over-billing clients to wiggle out of his own legal and ethical dilemma.

As a general rule, I think it’s generally dishonest to bill clients for every thought.

I am preparing an ethics report, and doing so with a famous, legendary, super-credentialed lawyer who charges four times what I do as my ethical adversary. His experience and credentials make me look like comparative piker, but 1) I’m on the right side of this issue 2) his ethics report was pathetic and 3) this case is in my wheelhouse, not his.

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