Saturday Morning Ethics Warm-Up, July 10, 2021: Remembering The Unethical And Bizarre”Monkey Trial”

Scopes

Ooooh, it’s Clarence Darrow time again, and as I will show in another post shortly, this has serious, and underappreciated current day relevance.

For on this date in Dayton, Tennessee, the so-called Scopes Monkey Trial began in 1925, not only one of the most famous trials in U.S. history, but also one of the most misrepresented, misunderstood and, frankly, silly trials as well. John Thomas Scopes, a young high school science teacher, was accused of teaching evolution in violation of a new Tennessee state law which made it a misdemeanor punishable by fine to “teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Town officials persuaded Scopes to volunteer to get arrested for the offense, not so much to challenge the law but because alocal businessman figured out that it would put Dayton on the map. His plot succeeded beyond his wildest dreams. The American Civil Liberties Unio—-yes, they once cared about the First Amendment—announced it would defend Scopes, and hired an aging but famous Clarence Darrow to do the job, which included making sure his client was convicted, so they could appeal the verdict to the U.S. Supreme Court, where even a monkey judge would know that the Tennessee anti-evolution law was a blatant First Amendment violation.

William Jennings Bryan, the three-time Democratic presidential candidate who was seeking his fourth shot at the White House, volunteered to assist the prosecution in his guise as a fundamentalist Everyman. The Monkey Trial got underway with in-person coverage by renowned cynic H.L. Mencken and hoards of other reporters. Parts of the trial were broadcast nationally over the radio, an all-time first. Preachers set up revival tents along the city’s main street; venders sold Bibles, hot dogs and souvenirs like monkey dolls and fans to tourists. A carnival “exhibit” featuring two chimpanzees and a “missing link” opened in town: the alleged “Monkey Man” was 51-year-old Jo Viens, who was short, had a receding forehead, and whose jaw protruded like an ape. One of the chimpanzees wore a plaid suit, a brown fedora, and white spats, and periodically was allowed to run around on the courthouse lawn.

To recap, the “trial” was based on a contrived “crime” committed with the cooperation of authorities, and the defense was to make sure Scopes was convicted, not acquitted. But things got even more Bizarro World-like. At one point, Scopes told Darrow that a substitute teacher, not him, had actually taught the Darwin class, and Darrow told the teacher to shut the hell up about that rather crucial detail. When Judge John Raulston ruled that expert scientific testimony on evolution would be inadmissible, Darrow decided that his sole expert witness would be Bryan, one of the prosecutors. (No, this had never happened before and has never happened since.). Raulston ordered the trial moved to the courthouse lawn for this spectacle, fearing that the weight of the spectators and reporters inside would cause the courthouse floor to collapse.

Darrow treated Bryan as a hostile witness, though they knew each other, were both political progressives, and were both doing what they loved best, performing in front of a crowd. Popular legend holds that Darrow made a monkey out of Bryan, which was how the famous play (“Inherit the Wind”) based on the trial and its many TV and movie versions portrayed the showdown, but reading the transcript tells a different story. Bryan’s answers were cagey and clever, but he had a big problem: he knew his answers were being broadcast to potential voters who were not fundamentalists, yet he couldn’t afford to alienate the Bible-Beating jury. Darrow had no such dilemma: remember, he wanted to alienate the jury, and knew that if Bryan insisted that the Bible was literally true, “The Great Commoner” would end his political career (though it was almost certainly over anyway.) . Thus Bryan argued, for example, that God explained things in the Bible in ways that could be understood by the people of the time. For example, God obviously knew that the Earth moved around the sun, and not the other way around, but HE just said, in the Bible, that the sun “stopped,” so as not to confuse the faithful.

The weirdness got worse: in his closing speech, Darrow asked the jury to return a verdict of guilty in order that the case might be appealed. I’m pretty sure this is an abuse of process and wildly unethical: isn’t a request to be found guilty indistinguishable from a guilty plea? This tactic did have a mean consequence for poor Bryan: under Tennessee law, the admission of guilt meant Bryan couldn’t deliver the grand closing speech he had been preparing for weeks. It took eight minutes for the jury to return with a guilty verdict—why did Darrow feel he had to ask for a verdict that was pre-ordained, other than to deny Bryan his big finale?— and Raulston ordered Scopes to pay a fine of $100, the minimum the law allowed.

After all of this, the ACLU’s scheme still failed: the Tennessee Supreme Court overturned the Scopes verdict, but on a procedural technicality, so the case never got to the U.S. Supreme Court at all. The constitutional issue was officially unresolved until SCOTUS overturned a similar Arkansas law.

Can you guess why this fiasco has special relevance in 2021?

Watch this space!

Unethical Tweet Of The Month And Ethics Dunce: ACLU National Legal Director And Georgetown Law Prof. David Cole

foot-in-mouth-header

David Cole, ACLU National Legal Director and Professor at Georgetown University Law Center, tweeted in response to the SCOTUS ruling striking down California’s law making it mandatory for non-profits to disclose the names of their biggest donors,

Cole tweet

Gee, that’s funny! The ACLU filed an amicus brief supporting the majority’s decision in AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA.

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Down The Slippery Slope To Lawyer Censorship: First Giuliani, And Now This

silence

Rudy Giuliani, as discussed here, was just suspended from the practice of law on the basis of out of courts statements that the New York bar disagrees with, while representing a client they hate (Donald Trump), using a standard that has never been applied to a lawyer before.

Yet what was just done to South Carolina lawyer David Paul Traywick by the state Supreme Court was even worse, and more ominous. The Court ordered his suspension from the practice of law based on social media posts that were pure opinion, and that had no connection to the practice of law at all. Traywick lost his license for six months. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by “re-education” authorities.

The Court felt justified punishing him after the South Carolina Office of Disciplinary Counsel received complaints from 46 people about Traywick’s Facebook posts. The posts were accessible to the public, and his profile identified himself as a lawyer while mentioning his law firm his law firm.

The Court found twelve posts by Traywick “troubling.”I will interject here that an individual’s statement on social media are none of a court’s business, indeed none of its damn business, unless they are libelous or criminal, or evidence in a case before it. None of the posts fit into those categories. Two of the posts nonetheless triggered the suspension:

  • On April 5, 2020, Traywick posted what the Court calls “an offensive comment regarding tattoos,” apparently so offensive the the opinion won’t even enlighten us to what it was. After whatever it was he was saying about tattoos, which could have only been an opinion, he  challenged his readers, “Prove me wrong. Pro tip: you can’t.” In a subsequent post in response to a comment, he wrote, “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!”
  • On June 3, 2020, at the peak of the George Floyd Freakout, they lawyer posted, also on Facebook,  “Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.

By no stretch of the imagination or the Rules of Professional Conduct do those statements justify suspending a lawyer’s right to practice law. It is protected speech under the First Amendment. It does not involve the practice of law. The comments are profane, but profanity is not grounds for discipline out of a legal context. They are vulgar, but the same hold with those. They may offend readers, but nobody is forcing readers to follow this jerk. The lawyer appears, based on his comments, to be an asshole, but being an asshole is not a disqualification for practicing law. It is often an asset, some might say. He may have been lying, but not in any way that could be linked to his trustworthiness as a lawyer, and lies are also protected speech unless they constitute fraud or perjury.

Yet the Court wrote,

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Re Rudy Giuliani’s “Interim Suspension”

rudy_giuliani_ap

New York’s Supreme Court took the draconian step of suspending Rudy Giuliani, former federal prosecutor, former mayor of New York City, and counsel to former President Trump, from practicing law based on his statements, allegation and, in some cases, presentations in court and court documents, regarding the 2020 election and his clients claims that it had been “stolen.” From the opinion:

“For the reasons that follow, we conclude that there is uncontroverted evidence
that respondent communicated demonstrably false and misleading statements to courts,
lawmakers and the public at large in his capacity as lawyer for former President Donald
J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection
in 2020. These false statements were made to improperly bolster respondent’s narrative
that due to widespread voter fraud, victory in the 2020 United States presidential
election was stolen from his client. We conclude that respondent’s conduct immediately
threatens the public interest and warrants interim suspension from the practice of law,
pending further proceedings before the Attorney Grievance Committee (sometimes AGC
or Committee).”

Note that Giuliani has been suspended before the completion of an investigation of the claims against him, or a hearing, based on a conclusion that the public is literally endangered by the possibility of his continuing to make the same claims that former President Trump and many others are making in public every day. The stated justification for the extremely rare interim suspension never explicitly made clear: exactly what is the danger to the public that justifies this? The Supreme Court of the State of New York is simply continuing the false narrative that there was a “violent insurrection” by misled members of the public on January 6 caused by the insistence of the President and others that the election was stolen by the Democrats, and Trump was really elected. Indeed, the Court writes,

“One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”

I shouldn’t have to point out that neither Trump nor any non-lawyers making the “stolen election” claim t have been or can be punished by the the Courts or the government, but the New York Bar’s Rules of Professional Conduct can be used to do just that to Giuliani for serving a client the judges don’t like (they are all Democrats). To justify this, the opinion uses the fact that a lawyers’ speech is more subject to regulation than normal citizens because of their “persuasiveness,” supposed trustworthiness as members of a profession that is forbidden from lying, and bootstraps its argument by noting that the real purpose of the Rules us not to punish lawyers, but to protect the public. That is true, but the purpose is to protect the public from being represented by bad and untrustworthy lawyers, or substantively harmed by lawyers assisting criminal or predatory clients, not to muzzle lawyers from making controversial statements in the public square.

This case has been the subject of much debate by my legal ethicist colleagues of late, with a depressing near-consensus that Rudy is getting what he deserves. This is because, I detect, the vast majority of lawyers cannot see through their political biases and Trump hate. At the most simple level, the ruling is premature because contrary to the Court’s certitude, all of the evidence is not in, though the claim that there was widespread election fraud and that the election was “stolen” has for many months been pronounced “a lie” by Democrats and the mainstream media with suspicious vigor. While the opinion makes a convincing case that many of Giuliani’s statements, including some made to courts and government bodies, were careless, sloppy, badly sourced, unprofessional and wrong, it cannot know at this point that his (or Trump’s) general claim is false. If its is not false, then raising doubts among the public cannot be called dangerous to the public. It is more dangerous to keep opinions, arguments and ideas from the public’s awareness “for their own good.”

Thus this is a First Amendment problem. Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. The Court’s focus is almost entirely on Giuliani’s public statements on the radio, in podcasts, on TV shows and news interviews. Alan Dershowitz, along with Jonathan Turley among the very few well-known lawyers (and Democrats) who have managed to maintain their integrity during the nearly five-year attack on Donald Trump, reacted to the interim suspension by telling Breitbart (which I will not link to after being burned to many times),

“I taught legal ethics for, I don’t know, 35 years at Harvard Law school. I think of myself as a leading expert on legal ethics. I’ve never ever seen a case where a lawyer was essentially disbarred … without a hearing. The most basic concept of due process is you don’t deprive somebody of his living, of his freedom, of his ability to work without a hearing. And then the criteria under which they suspended his law license is so vague. It says in the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. In other words, if he goes on your show, or he goes on my podcast, or he goes on Fox or anywhere else, and he makes a statement which turns out to be false, and he had reason to believe it was false, he could be disbarred. Do you know how many lawyers we’d have left if we applied that standard across the board? … We have case after case after case where prosecutors, defense attorneys, lawyers of every kind, have made statements … which turn out to be untrue, and they’re never disbarred. And certainly not without a hearing. And so, this is a first. …The atmosphere is such today that if you defended President Trump in any way, they’re out to get you. And they’re certainly out to get Rudy Giuliani.

In other words, the suspension is a politically motivated silencing. I strongly suspect that anti-Trump bias was at the heart of this slap at Giuliani, as Dershowitz says. Turley, in a piece for The Hill, expressed similar concerns:

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From The “Res Ipsa Loquitur” Files, Legal Ethics Section, Zoom Subsection…

Zoome etiquette BIG

It’s a little fuzzy, so I’ll summarize: during a Zoom trial before the Michigan Court of Appeals, this Michigan lawyer held his middle finger up to the camera while his opponent was speaking. When the judges questioned him regarding the gesture, he said, apparently, something like “Not me! I can’t imagine what you are referring to!” even though his actions were recorded.

In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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A Word From Your Sponsor…

I’m giving a Zoom CLE seminar, 3 hours, for legal ethics credits, for the D.C. Bar this evening. If you are a lawyer, you might want to participate. The program is “Clarence Darrow’s Legal Ethics Lessons for Today’s More Ethical Lawyers 2021,” and features, as Darrow, my friend and long-time D.C. theater star Paul Morella. (You may recall him as a sinister young law firm associate in “The Pelican Brief.”) I do the ethics stuff.

Paul and I have done constantly evolving versions of this seminar for years, an adaptation of a one-man show I wrote for my late, lamented Arlington, VA theater company 20 years ago. Paul has continued to perform the show all over the country.

The link is here.

Now back to our usual scheduled programming….

Coke Commands Its Lawyers To Discriminate: Can’t Do That, And The Law Firms Should Refuse (But I Bet They Won’t)

Coke Coercion

This is a major development with narrow implications in the field of legal ethics, but potentially wide-ranging importance in the society as a whole.

We are just now learning—after all, you wouldn’t expect the news media to report this kind of sinister, reverse-racism bullying, would you?—that the general counsel of Coca Cola issued an open letter to the law firms representing it. [Full disclosure: I have taught legal ethics seminars for one of them] The letter decreed that these firms “commit that at least 30% of each of billed associate and partner time will be from diverse attorneys, and of such amounts at least half will be from Black attorneys.” You can read the letter here. Here are the edicts:

Coke demands

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Pre-Weekend Ethics Prep, 3/5/2021: Obama Disses Pete, John Defends The Redcoats, Harvard Beats Crump, And Zoom Strikes Again

Massacre-jpg

1. Today this post, from two years ago, is suddenly getting a lot of views. The reason: there was a resolution of the long-shot law suit by the descendants of two slaves in photographs owned by Harvard University. The slave’s descendant, Tamara Lanier, had employed Benjamin Crump, legal race-hustler without peer, to sue on the Hail Mary theory that

“the images are the “spoils of theft,” because as slaves Renty and Delia were unable to give consent to being photographed., and that Harvard is illegally profiting from the images by using them for “advertising and commercial purposes.” By keeping the photos, the lawsuit claims, Harvard has perpetuated the hallmarks of slavery that prevented African-Americans from holding, conveying or inheriting personal property.”

Sure, Ben….from the post:

“Harvard and other universities set themselves up for this by caving to historical airbrushing demands by the students they have helped indoctrinate, such as when Georgetown University established a policy giving an edge  in admissions to descendants of slaves who were sold to fund the school. I would say they have this coming and let them sleep on the bed of nails their laziness and cowardice have made, but therein lies a real danger. Harvard, which of late has been devising and defending one bad progressive idea after another (like discriminating against Asian Americans as Harvard’s own way of helping African Americans get admitted to the college), might just decide to be woke rather than responsible, and let Mrs. Lanier take the photos, thus setting a precedent with endless potential to cause havoc.”

Justice Camille F. Sarrouf of Middlesex County Superior Court this week acknowledged that the daguerreotypes had been taken under “horrific circumstances” but said that if the enslaved subjects, Renty and Delia, did not own the images when they were made in 1850, then their descendant who brought the lawsuit, Tamara Lanier, did not own them either.

Duh.

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In Which I Am Admonished For A Slur, And Am Unapologetic

Former US senator John Edwards speaks 30

An episode today raised echos of a couple of Ethics Alarms topics this week, such as incivility and the use of uncomplimentary words.

Today’s presentation of the musical legal ethics seminar “Ethics Rock 2021” began with my partner Mike Messer singing “Ethics Man,” a parody of Billy Joel’s classic “Piano Man.” It was about the tenth version of that wonderfully adaptable song that I have written. This was today’s chorus (it’s usually a sing-along, but not on Zoom):

Sing us the Rules, you’re the ethics man!
Sing us the Rules today!
We’re stuck in an ethics dilemma here
And it’s your job to show us the way!

I had returned an old verse to this installment because I felt the issue of character and the fitness to practice law was an especially relevant topic. The verse was first written shortly after the John Edwards scandal was exposed.. Edwards, as you may know, never faced any professional discipline from the North Carolina bar despite what I have been told were thousands of complaints, though none were related to his legal practice…

Now John, he was running for President
While running around on his wife
And he fathered a daughter and lied like a rotter
Constructing the scam of his life.
But some lawyers say, “Hey, all that’s personal!
He isn’t unworthy of trust!
Like that guy with the huge student loan he owes
So his bar application’s a bust.”

The last part was a reference to Robert Bowman, a hard-working, honorable law grad denied membership in the New York bar for years because his student loan debt had ballooned due to no fault of his own. (He was eventually admitted.) Bowman was found to lack the character to practice law, while Edwards was (and is) still officially a lawyer in “good standing.” This is a sore point for me; I have said many times that I wouldn’t trust Edwards to mail my water bill, and for the profession to assert that he has the “moral character” to practice law is not just a double standard but a ridiculous one.

Somewhere in my riff on Edwards versus Bowman I used the term “scumbag” to describe the former Senator, and quickly got a message from one of the participants claiming that it was “inappropriate” to refer to Edwards with that slur.

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