legal ethics

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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The ABA Wants Lawyers To Report Biased Judges

/ Jack Marshall / 1 Comment

Hmmmm. It can’t be that the notoriously woke ABA is concerned about partisan judges legislating from the bench, can it? Naaah, impossible. What was I thinking?

The American Bar Association Standing Committee on Ethics and Professional Responsibility today released a formal ethics opinion regarding the ethical obligations of lawyers who possess information that could lead to a judge’s disqualification. The opinion declares that a lawyer’s role as an officer of the court requires the disclosure of such information to protect the integrity of the judicial process, provided the disclosure does not violate client confidentiality.

Citing ABA Model Rule of Professional Conduct 8.4(d), otherwise known as the “catch-all rule” that some bar associations (like Virginia) regard as too vague to be meaningful, the ABA concludes that because lawyers are prohibited from engaging in conduct that is “prejudicial to the administration of justice,” when a lawyer knows of information reasonably likely to trigger a judge’s disqualification obligation under the Model Code of Judicial Conduct, the lawyer has a duty to speak up. Lawyers typically would rather not do so in such situations, being afraid of making an enemy in black robes.

Examples of such information not meant to be all-inclusive include prior employment connections (a client of mine couldn’t get a judge to recuse despite his having been a partner in the opposing counsel’s law firm), campaign contributions (the judge knowing that your client, or you, contributed to the judicial candidate who ran against her); a spouse’s law firm’s involvement in the case, and a counsel’s business relationship with a judge’s family member.

Here is the link for ABA Opinion 522.

Catching Up With “The Lincoln Lawyer” Part 4

/ Jack Marshall / 4 Comments

I like the show in general, but its writers need to catch up with the Rules of Professional Conduct and their interpretation.

Twenty years ago, in “The Sopranos,” Tony and his wife Carmella were having marital problems—gee , I wonder why?—and Tony was tipped off that she was looking for a divorce lawyer. So Tony contacted every major divorce lawyer he could find to tell them all about his marriage on the pretext that he was considering retaining one of them.. The idea was to conflict them all out of representing her, because they had received confidential communications from Tony.

Rule 1.18, relatively new at the time, held that lawyers had to keep the confidences of even potential clients, making such a dastardly tactic possible. But not long after that episode of “The Sopranos” revealed the loophole in the rules, courts and legal ethics opinions closed it with the sensible holding that someone only consulting a lawyer to create a conflict and not as a good faith effort to seek legal representation was not a genuine potential client.

Nevertheless, in the current season of “The Lincoln Lawyer,” Mickey’s newly minted lawyer associate (and ex-wife) says she got her first family law client because the woman had been frozen out of hiring the established divorce lawyers after her louse of a spouse had pulled Tony’s old trick.

True, it’s not always easy to prove that an estranged spouse is seeking conflicts rather than a lawyer. Nonetheless, lawyer TV shows are ethically obligated not to deceive the public. Tony Soprano’s method is unlikely to work now, and hasn’t been viable for at least a decade.

In one area, “The Lincoln Lawyer” deserves praise for properly representing a lawyer’s duty that Hollywood almost always ignores. Whenever Mickey Haller, “The Lincoln Lawyer,” is presented with a plea deal or another offer from the opposing attorney, even if Mickey makes it clear that he thinks the offer is ridiculous, he always says, “I’ll run it by my client,” which he has to do. But even in some of the most celebrated legal films, like Paul Newman’s “The Verdict,” the lawyers don’t do that. As a result, many clients don’t know their attorney can’t reject or accept a settlement offer without consulting them. That misconception can cause real harm.

The previous installments of these legal ethics commentaries on the streaming series can be found here, here, and here.

Catching Up With “The Lincoln Lawyer” Part 2

/ Jack Marshall / 1 Comment

In this limited series of as yet undetermined length, I’ll be examining the legal ethics issues raised by the Netflix limited series of as yet undetermined length based on the Michael Connelly character, fed through the filter of the ubiquitous David Kelley.

I’m not going in strict order chronological order because why should I? This issue is a rich one, and arrived in Season 3 of the show. A prostitute whom Mickey had advised and had testified to help a client in Season 2 turned up dead, and he agreed to represent the man, her cyber pimp, accused of killing her before he realized she was the victim. Mickey liked and sympathized with the victim; whether he was officially her lawyer is a bit vague, but she seemed to think of him that way.

Can a lawyer represent a defendant accused of killing a lawyer’s client? Sure enough, this has happened; there’s even a Supreme Court case about it.

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