Sunday Morning Ethics Warm-Up, 3/17/19: March Ethics Madness!

Good morning!

Any week that starts off with John Belushi’s immortal reflections on March just has to be a good week.

1. Connecticut: Judicial ethics and guns. Anti-gun fanatics are cheering this week’s ruling by the Connecticut Supreme Court  reversing  a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed. In the 4-3 decision the court  possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits, thus setting the stage for a sensational “Runaway Jury”-type trial. The court’s reasoning is that the Sandy Hook families should have the opportunity to prove that Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing what it knew was a weapon designed for military use to civilians. The problem is that the ruling ignores the law, as John Hinderaker explains (but he’s not the only analyst trashing the decision):

“Firearms of all kinds have been ‘designed for military use.’,” he writes. “The 1911, designed by John Browning, was the standard U.S. military pistol for many years and remains one of the most popular pistol designs today. So what? There is no such exception in the Second Amendment…Under the Supremacy Clause, federal law will govern over state law. The Protection of Lawful Commerce in Arms Act is intended to avoid precisely the result reached by the Connecticut Supreme Court. The PLCAA puts firearms manufacturers on the same plane with all others. If their products are not defective–if they do not malfunction–they are not liable. If someone stabs a victim to death with a knife, the victim’s heirs can’t sue the knife manufacturer. It is the same with firearms.”

Hinderaker correctly concludes that significance of the ruling is not that it opens a road for the Second Amendment to be constrained, or for ruinous liability to applied to gun-makers, but that it shows how courts will deliberately ignore the law to reach political goals. Continue reading

Ethics Warm-Up: I Wish I Were Surprised, But I’m Not

NOW what?

Quite a bit, actually…

1. Res Ipsa Loquitur #1 The Democratic National Committee has barred Fox News from hosting its Presidential primary debates. I guess the Democrats don’t want any tough questions interfering with their efforts to rig the nomination this time around.

If there was ever better proof that the Democratic Party considers the mainstream media their captive allies, I don’t know what it would be. In 2016, Republicans subjected their candidates to outright hostile questioning from CBS and CNBC journalists, and Fox treated Donald Trump as roughly as a candidate can be treated in the Republican debates. I watched all the pre-nomination debates: Fox’s Neil Cavuto was among the very fairest of all panelists, and as Fox News has correctly said in its protest about the Democratic slur, Chris Wallace, Bret Baier and Martha MacCallum, the proposed Fox News debate questioners, are at least as objective and professional as any Left-media journalists.

DNC Chair Tom Perez’s excuse for this blackball move is self-evidently dishonest: “Recent reporting in the New Yorker on the inappropriate relationship between President Trump, his administration and Fox News has led me to conclude that the network is not in a position to host a fair and neutral debate for our candidates. Therefore, Fox News will not serve as a media partner for the 2020 Democratic primary debates.” Oh, the New Yorker says so! That settles it then!

The GOP didn’t pull out of the Vice-Presidential debates in 2008 even though the NPR’s debate moderator, Gwen Ifill, had her pro-Obama book sitting at her publisher  waiting for he candidate to win. CBS wasn’t barred from hosting debates, event though David Rhodes, then president of CBS News, is the brother of Ben Rhodes, Barack Obama’s deputy national security adviser. Meanwhile, Ben Sherwood, president of ABC News, is the brother of Elizabeth Sherwood-Randall, an Obama  special assistant.  Claire Shipman, a national correspondent for ABC’s “Good Morning America,” was married to Jay Carney when he was President Obama’s press secretary. These were real, hard, conflicts of interest. The bias of the Fox News journalists is apparently based on the fact that they may run into Trump pal Sean Hannity in the lunch room.

The Democratic Party is prepared to do everything in its power to make sure the American public does not get properly informed regarding the character, skills and beliefs of its 2020 Presidential candidate, and is confident that every network but Fox can be depended upon to assist them in achieving that goal.

2. Almost certainly untrustworthy study of the week, but great for confirmation bias purposes:  According to an article in “The Atlantic,”  a survey conducted by the polling firm PredictWise that assembled a county-by-county index of American political intolerance  based on poll results determined that ” the most politically intolerant Americans… tend to be whiter, more highly educated, older, more urban, and more partisan themselves.”

That would explain the posts by my Facebook friends… Continue reading

I Expect Non-Lawyers And Journalists To Misunderstand This Basic Legal Ethics Principle….But HARVARD LAW SCHOOL?

Kaboom.

This is a repeat issue, so I could make this short and link to the previous Ethics Alarms post on this annoying subject, or  here, when I defended Hillary Clinton when she was being called a hypocrite for once defending  a child rapist, or maybe the post titled,  No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes.or this post, when liberal icon and former Harvard Law professor Larry Tribe was representing a coal company. I have vowed, however, that if I accomplish nothing else with this blog, I will do my best to put a stake through the ignorant and destructive idea that lawyers only represent clients they agree with, admire, or personally support. Here its is again, the ABA rule that is quoted somewhere in every jurisdiction’s attorney conduct regulations. Let’s do it really big this time:

ABA Model Rule 1.2(b): “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.”

Got that? Memorize it Print it out and carry it in your wallet, and hand it to your ignorant loud-mouth family member who complains about those scum-bag lawyers who represent bad people. Post it on social media and  in online comment sections where people are bloviating about the same. idiotic misconception.

What we can do about Harvard, however, I just don’t know. You know what they say, “Get woke, lose all respect and credibility as a trustworthy advocate for civil rights and the Rule of Law.” Okay, I’m going to have to work on that… Continue reading

Ethics Quote Of The Week: California Attorney Benjamin Pavone

“The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.”

—-Attorney Benjamin Pavone’s most spectacular of several ethically (and rhetorically) dubious statements in his appellate brief for the plaintiff in the case of Martinez v. Stratton.

This was one of those cases where the winner actually loses. The plaintiff was awarded about $8,000 in damages while most of his claims were rejected. The trial court also denied plaintiff’s petition for approximately $150,000 in attorney fees. The plaintiff then appealed the denial of his fee petition. In both the notice of appeal and the briefing, plaintiff’s counsel engaged in the kinds of rhetoric regarding the trial judge that are frowned upon, to say the least.  Plaintiff’s Counsel called the female judge’s order “disgraceful,” accused her of “intentional” error motivated by political bias, and condemned her “mindless antipathy” toward his client.

The new California rules have a version of ABA Model Rule 8.2 that states

“A lawyer shall not make a statement of fact that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office.”
Attorney Pavone would have been skating dangerously close to it, if not for the fact that his conduct occurred before the new Rules went into effect. Never mind: he appeared to nick a number of the old rules as well; at least the appeals court thought so, since it referred Pavone to the bar for possible discipline. (It also rejected the appeal.) The old version of California ethics rules in California’s Business and Professions Code section 6068 stated that it is the duty of an attorney to “maintain the respect due to the courts of justice and judicial officers.” Thus disrespectful statements made in court filings are grounds for attorney discipline or contempt.

The appeals court’s opinion not only affirmed the judgment and awarded defendants their costs on appeal, but also reported plaintiff’s counsel  to the state bar for misconduct.

In addition to impugning the judge’s independence and integrity, the main complaint of the appellate judges seems to be that Pavone engaged in gender bias against the trial judge by using “succubustic.”  I see a lot wrong with that quote, including the fact that it is incoherent, but boy, finding gender bias is a stretch.  “The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as “succubustic.” A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period,” the ruling says.

The lawyer’s statement does not call the judge a succubus, however, and I’m not at all sure Pavone wouldn’t have used the same description if the judge was a male. He says that the ruling is “succubistic,” not that the judge is a succubus. Since it makes no sense to say the ruling was having sex with a sleeping man, I assume that what the lawyer meant was that the ruling simply adopted the defense position. The succubus, in many traditions, doesn’t just have sex with the sleeping victim, it also “sucks” the essence of life out of him, sometimes causing death. That is also the way succubi are frequently portrayed in horror movies—trust me, that a genre I know extremely well. So “the ruling’s succubustic adoption of the defense position” just means that the judge adopted the defense’s position as her own. That’s not gender bias.

But then, this is California, after all.

I have no idea what “pseudohermaphroditic misconduct” is, however, or  what “prompt one to entertain reverse peristalsis unto its four corners” is supposed to mean.

Observations On Michael Cohen

Ew.

  • Michael Cohen was officially disbarred from the practice of law this week, though that result was so inevitable that it barely qualifies as news. He pleaded guilty in November to lying to Congress and evasion of income tax liability, and was sentenced in December to three years in prison and to pay $1 million dollars in restitution. Tha alone made disbarment unavoidable, but he would have been disbarred without his crimes because he taped his client without his client’s consent and revealed attorney-client confidences to try to mitigate the consequences of his own conduct.

His disbarment is backdated to November when he pleaded guilty. It should have been backdated to the day he was admitted to the bar.

  • Conservative critics are absolutely correct that for Congressional Democrats hold a hearing designed for no other purpose than to slime the President while he was engaged in crucial negotiations abroad shows where their priorities lie, and they are not with the United States of America. They want the President to fail in all things (which seems unnecessary, since they will represent his successes as failures anyway), and to undermine his ability to do his job.

There was no valid reason why Cohen’s useless testimony could not have been postponed until after the President’s summit with North Korea’s Kim. Continue reading

Afternoon Ethics Warm-Up, 2/22/19: Irony, Absentee, And General Lee

Good evening, Ethics Lovers!

Those of you who are older than me will recall that Spike Jones used to call his audience “music lovers.” I have strived to be the Spike Jones of ethics.

1. Oh, you know you want it: today’s Jussie Smollett ethics items!

  • Do we really have to say “alleged” when talking about Smollett’s hoax? Well, we you have to say “alleged” about every fact about someone that has not been the object of a jury trial? The use of “alleged” has to do with formal guilt, not opinion or unavoidable conclusions. Yes, responsible journalism ethics requires “alleged” is such situations as Smollett’s, indeed various ethics codes state this in black and white. But “we” are not journalists, and “we” have eyes, ears and brains. This isn’t a case, as with the accustaions against Brett Kavanaugh, where there is an unsupported, unsubstantiated allegation: that’s “alleged” by definition. This isn’t: with the exception of the fact that Smollett refuses to admit what he did, the evidence is overwhelming, and his original story makes less sense the more you think about it.

It’s OK to say he did it.

  • Here’s Jussie’s lawyers’ statement from yesterday. Beginning by claiming that we had witnessed “an organized law enforcement spectacle that has no place in the American legal system,” Smollett’s legal team said,

“The presumption of innocence, a bedrock in the search for justice, was trampled upon at the expense of Mr. Smollett and notably, on the eve of a Mayoral election. Mr. Smollett is a young man of impeccable character and integrity who fiercely and solemnly maintains his innocence betrayed by a system that apparently wants to skip due process and proceed directly to sentencing.”

Observations: 1) The police statement yesterday was indeed excessive. This kind of angry denunciation of anyone accused of a crime taints the jury pool. Prosecutors have been disciplined for making public statements like that. 2) Calling Smollett a man of impeccable character is giggle-inducing, but not a lie. If the lawyer thinks that, he can say it, and nobody can prove he’s lying. 3) Ah! The lawyer says that Smollett maintains his innocence, and not that Smollett IS innocent. That’s how lawyers are supposed to phrase it in such circumstances.

  • From the “bias makes you bat-shit crazy” files: The Daily Caller tracked down Jussie’s anti-Trump tweets, which hint at a motive for claiming that racist and homophobic Trump supporters roughed him up. Here are a few…

“Trump stole a presidency. White supremacist cabinet. Syrians being exterminated. Tell DC 2 get real criminals & let the kid smoke her damn j”… “Get that dude out of office as president…”…”Pathetic excuse by U.S.”President” to show no condolence & further sell/spew/spit his white supremest, xenophobic, racism as fact. GTFOH”…”Shut the hell up you bitch ass nigga. You will continue to run this country further into the ground and risk lives every time you breathe. You’re not the president. Just a dumpster full of hate. FOH. Sick to my stomach that literal shit currently represents America to the world.”

Nice. Fox, which features “Empire,” apparently allowed a star to spout hate like this on social media assuming that fans of the show loved the Trump Hate. The tweet that will haint Jussie, I suspect, is this one, from 2016:

“The Trump way of campaigning… Take a pile of bullshit lies, sprinkle a drop of truth on top & call it “FACT”. I pray we aren’t this dumb”

How ironic! Continue reading

The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“It is professional misconduct for a lawyer to… engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Hmmmm. Continue reading