legal ethics

And The Lindsay Clancy Ethics Train Wreck Keeps Gathering Steam…

/ Jack Marshall / 6 Comments

Ugh. The Lindsay Clancy Ethics Train Wreck is a particularly ugly one getting uglier by the minute.

We began with a triple child murder and the abortion-addled women who think the murderer is a heroic figure for showing why it’s a good thing to kill babies before they are born (so you don’t have to kill them later). Then we had jury misconduct, as it was revealed drip-drip-drip style by a series of individual juror interviews in which we learned that a nurse on the jury introduced her own expert testimony into the evidence ( forbidden), and that a lone juror holding out for a guilty verdict was wrongly targeted by the jury foreman to get him off the jury so the murderous mother could be acquitted.

I believe that while not a technical ethics violation, the judge reading the Foreman’s note in open court rather than only to the lawyers was irresponsible and incompetent. No one outside of the lawyers and the jurors needed to know what the impasse was, and the judge adding that detail made the Lone Juror a likely target.

Next, the defense attorney publicly vilified the hold-out juror. Prof. Turley correctly condemned that act by Attorney Kevin Reddington, but failed to mention that it was an ethics violation: Rule 8.4, “Misconduct” forbids Massachusetts lawyers from engaging “in conduct that is prejudicial to the administration of justice.”  Sending the message to future perspective jurors that they risk being publicly attacked and denigrated for doing their civic duty is potentially disastrous to the administration of justice. I’m a Massachusetts lawyer: I may file a complaint against Reddington. In fact, I will.

In the post-mistrial juror interviews, we had the moronic quote from one juror that she was shocked that the prosecutor didn’t show more “compassion” for the defendant (in a child murder case!) in his opening statement, and what may be the Unethical Quote of 2026 from another juror, that the holdout “had the hardest time getting off the fact that Lindsay viciously killed her children.”

Yet another juror seemed to say that a majority of the women on the jury were determined to acquit Clancy from the beginning of deliberations, and perhaps from the outset of the trial. She also seemed to suggest that she had been pressured to change her vote and didn’t have the integrity to stand up for what she believed…unlike the Lone Juror.

After the defense counsel’s ethics breach, Plymouth County District Attorney Timothy Cruz addressed the media and engaged in prosecutorial misconduct. He stated that the investigation did not establish postpartum depression as the cause of the killings, maintained that Clancy was in control of her actions and that first-degree murder charges remain justified. In response to suggestions that the state was being insensitive to postpartum mental health issues, Cruz said, “Insensitive is killing three children” and that the prosecution’s job is to give a voice to those “who can no longer speak for themselves.” He added that the evidence gathered in the investigation showed that Clancy made a “cruel and calculated” decision and was legally responsible for her actions during the homicides. Massachusetts Rule 3.8. “Special Duties of Prosecutors,” forbids prosecutors from “making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

I may file a complaint against Cruz, too.

[Oh: when I tried to find Mass. Rules of Professional Conduct 3.8 online, I got a message that said I was not authorized to view the page! Well, I guess that’s one way to avoid having your unethical prosecutors exposed…]

But wait! There’s more…

Reddington asked for the President to pardon Clancy. The President can’t pardon a defendant in a state prosecution, and as a lawyer, Reddington must know that. His plea was misleading grandstanding, and dishonest, designed to mislead the public.

I’ll add that to my ethics complaint.

And this, from Oprah…

By all means, white women shouldn’t be the only ones privileged to kill their children…

We also learned that from juror Paula Devlin on ‘CBS Mornings’ today that the Lone Juror who voted to find Clancy guilty of murdering her children was the sole black on the jury. Oprah’s gal-pal Gayle King, who has never displayed to me any particular talent or acumen justifying her position as a CBS morning hostess other than her relationship with O, was stunned:

King: A black man is the holdout juror?

Devlin: Yes.

King: Well, I have to sit with that for just a second.

Why does she have to sit with that for a second? Black men are not supposed to vote guilty in criminal trials? Black men are supposed to be sympathetic to child killers? Black men are supposed to bend to the will of white women?

Ethics Alarms Usually Concentrates On The Unethical Conduct Of Current Senators, But In The Case Of Kyrsten Sinema I’ll Make An Exception…

/ Jack Marshall / 8 Comments

I was glad to see the often rogue Democrat/Independent Senator Kyrsten Sinema leave Congress and my ethics scrutiny because she was a one-woman EA spelling landmine: I always wanted to spell her first name “Krysten” and her last name “Cinema.” But a federal judge last week cleared the way for a the wife of a man she had been having an affair with while she was a U.S. Senator to litigate a North Carolina “homewrecker” lawsuit against her.

Good.

To be fair, Ethics Alarms had extolled Sinema a couple times in the past, most recently in 2021, when I wrote:

“Totalitarianism takes a hit! Is it fatal? Senator Krysten Sinema (D-Az) is suddenly evil in the eyes of progressives hoping to ram through SCOTUS packing, gun restrictions, D.C. statehood, HR One and other measures designed to make the US a one party, European-style nanny state until the stars turn cold. She announced that she is unalterably opposed to eliminating the filibuster, meaning that it’s probably here to stay, at least for a while. The ethical response to this development would be for the two parties to stop insisting on extreme positions, and work toward compromises, as our system was designed to foster. Nah.”

Nonetheless, Sinema carried on a sexual affair with her bodyguard (heh!), leading to his divorce. Sinema’s lawyers had asked U.S. District Judge David A. Bragdon to toss the suit, arguing she had no meaningful ties to North Carolina and had conducted her affair with Matthew Ammel entirely in other states. Bragdon, rejected that account in a 13-page order.

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Shameless Self-Promotion Dept.: I Join An Effort To Show How Unethical E. Jean Carroll’s Lawyer Is

/ Jack Marshall / 4 Comments

From the National Legal and Policy Center today:

The National Legal and Policy Center (NLPC) has filed an appeal of the rejection of its complaint against E. Jean Carroll’s attorney Roberta Kaplan by the Attorney Grievance Committee (AGC) of the New York Supreme Court.

On August 3, the Committee, or rather its Chief Attorney Jorge Dopico, who apparently serves as political gatekeeper, rejected the complaint alleging that Kaplan failed to inform the court or President Trump’s lawyers that Carroll falsely replied in October 2022 to a deposition question about whether anyone else was paying for her lawsuits against President Trump. Carroll replied “No” even though Kaplan knew that the suit was funded by an organization bankrolled by left-wing billionaire and Jeffrey Epstein associate Reid Hoffman.

As the complaint noted, “At that moment, Kaplan knew that answer was false but waited almost six months later until the eve of the trial to correct the record by informing opposing counsel and the court that Hoffman had funded the lawsuits”…

As an exhibit to the Request, Kamenar submitted an Expert Witness Report by noted ethics expert Jack Marshall of ProEthics. His Report concludes: “The deliberate failure of Attorney Roberta Kaplan to follow the requirements of the New York State Bar’s Rules of Professional Conduct was serious and substantial. It caused significant harm to her client’s adversary and the administration of justice in the case at issue, as any distortion of the relevant facts in any matter will. The record, in my expert opinion, demonstrates Ms. Kaplan’s lack of honesty, trustworthiness and competence, rendering her continued engagement in the practice of law to be a threat to the integrity and reputation of the legal profession.”

“If the committee does not reverse the summary dismissal of our complaint, it smacks of a coverup,” Kamenar told the Daily Signal

Readers here know my opinion of Ms. Kaplan’s ethics orientation. I would not publicize the fact that I was hired to issue an ethics opinion for a client, but this client chose to publicize it themselves.

You can read the NLPC appeal here. The original ethics complaint is here. Click here for my Expert Witness Report.

Now THIS Is An [Unethical/Cheap/Clever/Creative] Law Firm ! (Pick One)

/ Jack Marshall / 4 Comments

Who would have thought that Bert from “Mary Poppins” might have had a career in law firm marketing?

Trantolo & Trantolo, a small law firm in Hartford, Connecticut that also has offices in New York and Massachusetts, has been cited for more than a dozen “unauthorized sidewalk advertisements.” Put on the pavement using either power-washing or temporary chalk over stencils, the firm legal services marketing innovation violated a city ordinance that banned such messages without written consent. Hartford Mayor Arunan Arulampalam told the media that the city has discovered at least 15 sidewalk messages promoting the firm. Unauthorized law firm promotion from the firm also appeared on 24 Hartford crosswalks before the West Hartford Department of Public Works powerwashed them into oblivion. I bet it looked sort-of -like at the end of the Chalk World sequence where Bert, Mary and the kids ride on merry-go-round horses, participate in a fox hunt and sing “Supercalifragilisticexpialidocious” and then the rain washes Bert’s pictures away.

One message with the firm’s name attached said, “Look both ways before you cross.” Who could object to that public service message? But the firm has “an angle.” As Bing Crosby told Rosemary Clooney in “White Christmas,” everyone has an angle. Well, lawyers and law firms, anyway. Trantolo & Trantolo explained that one by explaining that Hartford “has a serious road safety problem.”

“Working with an outdoor advertising company that has executed similar temporary sidewalk campaigns in cities across the country, Trantolo & Trantolo recently placed a series of temporary stencils throughout Hartford and West Hartford highlighting important local and statewide safety statistics,” says the firm. Trantolo & Trantolo also promised that it would remove all the messages ” at the end of its campaign.”

You have to give the firm’s marketing department credit for creativity. However, the stunt violates the Kantian ethics test of considering what the world would be like if everybody did it, or even every law firm. Thank goodness this stunt didn’t occur to Morgan and Morgan.

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Now THIS Is An Unethical Prosecutor!

/ Jack Marshall / 7 Comments

Ray County (Missouri) Prosecutor Camille Johnston, 46, had “inappropriate sexual affairs “with three men, including a defense attorney representing several criminal defendants in cases prosecuted by Ray County, and Juan David Gutierrez an illegal immigrant accused of sexually assaulting another woman.  The third unethical sexual relationship was with yet another defendant in a criminal case, and Johnston fired the employee who discovered it.

Yikes. Even the late Steven Bochco didn’t dream up a prosecutor that sex-crazed, and all of his lawyers were in perpetual heat.

Johnston’s fling with Gutierrez was her masterpiece, however. Get this: Gutierrez was being prosecuted in Ray County, but this Ray County prosecutor gave him the keys to her car so he could flee to Florida, where she joined him on her vacation!

Johnston, the filings against her state, was guilty of an “obvious appearance of a conflict of interest” —- “Appearance”???? — had “forfeited the office of prosecuting attorney.” 

Yeah, I’d say that’s fair.

As soon as Missouri Attorney General Catherine Hanaway filed documents to remove Johnston from office, a judge approved a preliminary order suspending her. 

I don’t understand this story at all. Did the woman have a psychotic break? How can someone rise to the level of prosecutor, or for that matter pass the bar after graduating from law school, who is capable of behaving this way? Maybe she learned she has only a year to live, and decided to go out with a bang…well, several bangs I guess. I would have guessed that she was hideous or something and desperate for a date, but she’s not. My next guess would have been that she was so sexually alluring that defendants and colleagues were constantly courting her, but that isn’t evident either. How could this happen?

And yet, over the past 20 years, I have been stunned and disillusioned by the low level of professional ethics of so many prosecutors, who are supposed to maintain exemplary ethics. I suppose having sex with anyone in pants is, all in all, not as unethical as knowingly prosecuting an innocent defendant, and that ethical breach is a lot more common than going on vacation with an illegal who assaults women.

__________________

Pointer: Young Bill

The Other Shoe Drops On The Collusive Trump-IRS Deal. Good.

/ Jack Marshall / 9 Comments

In May, Ethics Alarms expressed its horror here, here and here over the unethical, conflicted deal engineered by Trump’s acting-Attorney General and Trump’s Treasury Dept. to bestow undeserved benefits on the President, his family, and the Trump Organization. I wrote at the end of the last of these, “I continue to think, or at least hope, that this abomination will be stopped. As I already wrote when asked in a comment, this, unlike the artificial offenses behind the two purely partisan impeachments in Trump’s first term, is a genuine impeachable offense.”

Well Calloo! Callay! It has been stopped, and very emphatically too.

U.S. District Judge Kathleen Williams said in her 56-page order yesterday that the President and his fellow plaintiffs, his adult sons and the Trump Organization LLC, may not refer in any judicial, administrative or other official proceeding to the “purported ‘settlement agreement'” that gave them broad protection from federal government audits and investigations. The judge then sanctioned the attorneys that represented Trump in his personal capacity, Daniel Z. Epstein of Epstein & Co. LLC and Alejandro Brito of Brito PLLC.

Good. They should be sanctioned. They should be suspended. If I had the choice, I would disbar them. They are both a disgrace to the legal profession.

“This lawsuit was not brought to vindicate rights,” Judge Williams wrote. “It was brought to manipulate the judicial process to pursue benefits unavailable in litigation because the parties were not adverse.”

“Because the parties were not adverse”! Bingo! On that basis, the case should have been at very least stayed by this same judge until Trump was out of office and not controlling the adversary party, and may I add, DUH! Judge Williams was asleep at the switch in May, and perhaps that adds to her obvious fury now. Her one excuse is that she didn’t realize exactly what was going on because it happened so fast and no President has had the gall to try anything like this before.

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My Legal Ethics Association Dilemma

/ Jack Marshall / 30 Comments
Great. Unethical legal ethicists....

I have gradually discovered, over the past few months, that the association of legal ethics lawyers in which I am a card-carrying member is, in fact, biased, partisan, and not particularly ethical at all.

Membership in the group is considered a credential and an important one, especially since few legal ethics experts have degrees in the field. (My mentor in the area, Michael Daigneault, is one of the few who do.) I don’t belong to the association because of the credential—membership in the ABA ethics section is regarded as a credential too, and that association is crippled by bias, so to hell with it—but because it once seemed like a useful network and because the listserv keeps me relatively informed of major developments in the field.

I knew the group was overwhelmingly left-biased because the whole legal profession is left-biased. Conservative members generally foxhole during discussions that turn political, and they often do. When I have decided to be Popeye (“It’s all I can stand, ‘cuz I can’t stand no more!”) and point out a particularly annoying outbreak, I receive sheepish emails off site from members who tell me that they agree with me. They just don’t have the guts to say so on the site.

Last month, as I have mentioned here, I raised for discussion the difficult problem of how to square the legal profession’s protection of its many (MANY) alcoholic and substance-addicted lawyers with the duties of candor and communication to clients, supposedly a core legal ethics requirement. The group’s reaction was to “circle the wagons,” deny the problem, and attack me. When I responded in words I believed were appropriate to the attacks, I was singled out and threatened by the group’s president, who said that he had received complaints about my “incivility.”

Translation: Non-conforming positions that made some members uncomfortable are not welcome. Shut up, Jack.

I haven’t participated since. I had already been disillusioned twice in the previous weeks, once when the consensus was that ethics lawyer somehow get an exception from the legal ethics duty to report lawyers they know are unfit to practice ( it would take too much time, you see) and that the fact that bar associations, contrary to the public’s belief, not only do a terrible job policing the profession but intentionally make it difficult for the public to flag unethical lawyers. “How dare you!” would be my summary of the group’s reaction to my pointing out that fact.

Today I saw a post on the listserv by an esteemed member whose signature contained this as a feature:

“A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.” —-Declaration of Independence

So now I have to put up with partisan, No Kings, Trump Deranged virtue signaling. I am sorely tempted to drop a note with the coda, “These people are crazy.” —President Donald J. Trump, 2026 State of the Union Message.

I’m sure I would again be the target of censorship, and maybe, finally, banned. On one hand, I still find the listserv a valuable resource. On the other hand, as Captain Hook would say, they are hypocrites and unethical., and somebody ought to tell them.

Now what?

Logic, Common Sense and Legal Ethics: The Pro Se Divorcing Lawyer Problem

/ Jack Marshall / 8 Comments

I know these technical legal ethics issues don’t interest a lot of readers, but it is my field, and this one is an all-time oldie-but-goodies.

A lawyer is in the midst of a divorce. He represents himself (a “pro se” representation); his wife has a lawyer. In all jurisdictions, Rule 4.2 or its equivalent declares that a lawyer may not meet with an adverse party in a matter without that party’s attorney present unless that counsel has been alerted and consents. The self-representing lawyer meets with his wife, whose attorney hasn’t learned about the meeting.

Is the lawyer-husband violating the rule?

The Supreme Court of Texas held last week that Rule 4.2 (Texas 4.02) does not prohibit a pro se lawyer from communicating directly with opposing party in a divorce . Ruth v Commission on Lawyer Discipline, 2026 WL 1699920. But in Missouri, the recent opinion regarding the exact same issue was the opposite. Here is that whole opinion, Informal Opinion Number: 2026-02, April 21, 2026:

Question:  Lawyer is divorcing Spouse.  Lawyer is pro se in the dissolution.   Spouse is represented by counsel.  Lawyer and Spouse had reached an informal agreement about the division of property before filing the dissolution action.  Lawyer and Spouse continue to reside together while the dissolution is ongoing.   Spouse discussed with Lawyer repairs needed at the marital home and payment for the repairs.  Spouse initiated the conversation.  After Lawyer spoke with Spouse regarding the repairs, Spouse’s lawyer advised Lawyer that all communications concerning the dissolution should be made through Spouse’s lawyer.  As a party, Lawyer believes Lawyer has a right to communicate directly with spouse.  Lawyer bases this belief upon a reading of Rule 4 dash–4.2 and Comment [4] to the Rule.  Rule 4 dash–4.2 prohibits a lawyer who “is representing a client” from directly communicating about the subject of the representation with any other represented party.  Comment [4] to the Rule provides that parties may communicate directly with each other.

  1. Is Lawyer correct in the interpretation of the rule and its comment?  
  2. Is the interpretation the same, regardless of whether Lawyer is pro se or Lawyer has engaged counsel to represent Lawyer?

Answer 1:  No, Lawyer’s interpretation is incorrect.  Interpretation of the Rule and Comment [4] require consideration of both the Rule’s plain language and the policy purposes behind the Rule.  The Rule protects a represented person against overreaching by other lawyers, interference with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.  See Comment [1] to Rule 4 dash–4.2.  Direct communications between a represented party and a pro se lawyer create the same risks that Rule 4 dash–4.2 was designed to prevent.  So, the pro se Lawyer is considered “self-representing” or, i.e., “representing a client,” and direct communication with the spouse regarding the dissolution is prohibited.  See Informal Opinion 2011 dash–03.  This is true even if Spouse initiated or consented to the communication.  See Comment [3] to Rule 4 dash–4.2.

Answer 2: The same risks exist with direct communications for the represented party regardless of whether Lawyer is pro se or has counsel. Consequently, Rule 4 dash–4.2 prohibits direct communication between the parties unless counsel for the parties consent to direct communications or the communication is authorized by law or court order.

The consensus among legal ethicists is that the Texas approach makes sense and the Missouri version does not. A spouse in the midst of a divorce should not be prohibited from talking things out with his partner if she consents just because he happens to have a law degree. The non-lawyer party can always say refuse the meeting. I would add, however, that best practice is for the pro se lawyer to advise his spouse to check with her attorney before agreeing to the meeting.

Are you with Texas or Missouri, or me?

Alcoholic Lawyer Ethics: An Inconvenient Truth

/ Jack Marshall / 13 Comments

[That’s Paul Newman above, playing the alcoholic trial lawyer in “The Verdict.”]

I recently caused consternation (again) on the listserv of the Association of Professional Responsibility Lawyers (APRL), the organization that brings together most of the lawyers who concentrate on the contentious field of legal ethics as ethics partners, professors, state bar disciplinary counsel, CLE trainers, consultants, and just interested lawyers. I had been considering dropping this metaphorical bomb on the group for some time. My thesis: lawyers who are alcoholics, “recovering” or not, are ethically obligated to inform their clients of that ongoing and incurable malady. I see no way out of this ethical obligation, but the legal profession has been scrupulously avoiding confronting reality for centuries.

Alcoholism was once the secret meaning of “moral turpitude” in state bar associations’ requirements for admission: if you were guilty of moral turpitude, you couldn’t get a law license because of a presumed character deficit. When alcoholism was finally recognized as the illness it is, being an alcoholic was no longer a basis for bar exclusion or discipline. Bar associations all established “Lawyer Assistance Programs” as the alternative to punishment for lawyers with alcohol or substance abuse problems. That’s nice. However, none of the measures currently employed deal with the inconvenient facts of alcoholism.

Based on my knowledge and extensive experience with friends, family and associates, all alcoholics are untrustworthy by definition. They have a strong tendency to lie, for example (and they will admit that, if pressed) to conceal their addiction as well as the often disastrous results of it. No one, including the alcoholic himself or herself, can know when a relapse will occur or what will trigger it. A binge alcoholic can seem healthy and dependable for months or years, and suddenly go on a bender that incapacitates him. My late wife, a brilliant and capable woman who struggled courageously with the illness her whole life and ran our business and finances (or, should I say, said she was and made a good show of it) would have sudden unpredictable relapses that she covered up with consummate skill. She was what is called a maintenance-level alcoholic. She had a degree of intoxication she needed to maintain to function well and appear sober; below that level of alcohol consumption she suffered from withdrawal symptoms. One drink over that set-point, however, and she was physically and mentally incapacitated. Many maintenance level alcoholics successfully hide their addictions while actually being drunk every day in highly challenging jobs…until they can’t. Alcoholism is a progressive disease. Over time, alcoholics’ ability to control their addiction deteriorates along with their over-all health and mental state.

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Ethics Dunce: D.C. Bar Senior Assistant Disciplinary Counsel Jack Metzler

/ Jack Marshall / 3 Comments

As I often say (or think) in such situations, “Yikes!”

I’m going to send you to a thorough exposé over at Signal, a conservative website, which means its thorough coverage of this example of irresponsible conduct in a position of trust as well as a stunning “bias makes you stupid” display will be brushed off by some as just a partisan attack. I’m certain some ideological hostility helped prompt the piece, but it is accurate, which means that Signal has flagged a genuine ethics problem. Good for Signal.

D.C. Bar Senior Assistant Disciplinary Counsel Jack Metzler has posted dozens of inflammatory, openly partisan, politically-motivated comments on social media for years,. He has mocked, insulted and attacked conservative Supreme Court Justices (but never the liberal minority). He has reposted with favor attacks on Donald Trump and Elon Musk (for his conservative views.) It appears someone finally told him, “Hey, moron, what are you doing?” and he’s taken down the worst of the tweets. The internet is forever, though. And Metzler has moved to BlueSky, the Twitter/”X” alternative for progressives who can’t tolerate people and opinions that don’t toe the woke line. I regard that as signature significance for Trump Derangement and partisan indoctrination.

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