Tag Archives: legal ethics

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

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Filed under Arts & Entertainment, Ethics Alarms Award Nominee, Government & Politics, History, Law & Law Enforcement, Social Media

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

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Filed under Gender and Sex, language, Law & Law Enforcement, Professions, Rights

The Big Law Firm’s New Partners

In early December of last year, Paul, Weiss, one of the country’s largest and richest firms, announced its new partners: twelve young white lawyers, and one similarly hued woman.

Being that group identification is everything to certain well-placed people today, the announcement became an instant “public relations nightmare,” according to many media accounts. Sensitive to being sufficiently “woke,” many large companies had their  general counsels, sign an open letter  calling on law firms firms  “to reflect the diversity of the legal community” or they would send their business elsewhere.

What is the assumption underlying that letter? Is it that whites were chosen over better qualified minority lawyers as an act of bigotry and racism? Noooo, nobody’s suggesting that. Are the signatories to the letter really saying that less qualified lawyers of color should be advanced rather than these lawyers? It can’t be that, can it? I would say that a law firm that does not make every effort to have the very best lawyers available for the benefit of the clients is treading close to unethical behavior. A firm can’t prioritize diversity, whatever than means, over its own abilities to represent clients.

I nearly dropped Above the Law, but the reliably knee-jerk left and ethically obtuse online rag is great for these stories, and didn’t disappoint this time. Joe Patrice, the editor, wrote, Continue reading

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Morning Ethics Warm-Up, 1/29/19: Sick Room Edition

I hope you’re feeling better than I am.

1. Sick Ethics. Being sick on the job is always an ethical conflict, and riddled with bias. My father’s approach, so characteristic of him as someone who insisted on going into the Battle of the Bulge as an officer with a mangled, recently-repaired foot that was still oozing blood, was to ignore the illness and soldier on. There are two problems with that, however. First, you are working at diminished capacity, and second, you risk infecting others. The problem is a bit easier when you have a home office like I do, but there is still a trade-off issue: if I “soldier on” like my father, do I risk a longer illness and reduced capacity for far longer than if I just took a day or two off to recuperate? In my case, this is always a tough call: I am very vulnerable to bronchitis and pneumonia following chest colds (that’s what I’ve got, big time, starting last night), and when the stuff I cough up starts attacking me through the Kleenex, I’m in big trouble that has sometimes lasted for months. There is also a bias problem when you feel rotten. Right now, I would love to lie down. I can’t think of anything I would like more. I bet I can rationalize air-tight reasons why I should lie down, despite all of the very valid reason not to.

2. And speaking of sick...All 50 states require vaccinations before children to attend school, but 47 of them  (California, Mississippi and West Virginia are the exceptions) allow parents to opt out of vaccines if they have religious beliefs against immunizations. Eighteen states also allow parents to opt out of vaccines if they have personal, moral or philosophical beliefs against immunizations, including beliefs that they can think straight when they are in fact idiots and get their medical advice from Jenny McCarthy and other hysterical anti-vaxxers. Oregon and Washington are among the states that allow for a parent’s personal beliefs to exempt their kids from being immunized, along with Arizona, Arkansas, Colorado, Idaho, Louisiana, Maine, Michigan, Minnesota, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Wisconsin and Vermont.

You know. Morons. Continue reading

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Now THIS Is A Frivolous Lawsuit!

Sounds noble in theory, but it doesn’t always work when the one saying “no” is a judge.

Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem  silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,

Rule 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law….

Comment:The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

The guy currently  suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.

This guy can be, however: Continue reading

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Filed under Law & Law Enforcement, Professions

Popehat Nails Dershowitz For Misrepresenting The Law

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Continue reading

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Filed under Character, Ethics Alarms Award Nominee, Government & Politics, Law & Law Enforcement, Popular Culture

Morning Ethics Warm-Up. 11/27/18: Unethical Perry Mason, Icky Science, Race Card-Playing Democrats, Intrusive Bosses And Slanted History

Good morning…

1. They are showing “Perry Mason” reruns again on cable TV. That was the show that made my generation want to be lawyers, under the delusion that a defense attorney could regularly prove a criminal defendant innocent. (Pssst! They are almost all guilty.) The show holds up, but boy, Perry was sleazy. In an episode I watched while I was sick, he had his investigator tell the hapless prosecutor, Hamilton Burger (Ham Burger to his friends) that he had found an incriminating piece of evidence that proved someone other than Perry’s client had committed murder. Ham relied on the information and got the killer to confess once he was faced with the production of the “smoking gun.” But Perry’s investigator hadn’t really found anything.

Having one’s agent lie to the state prosecutor is a serious ethics breach. Perry also caused the DA to tell a falsehood to get the confession, though Burger wasn’t lying, since he believed Perry’s contrivance. Prosecutors are no more allowed to lie than other lawyers, but when they do lie “in the public interest,” they seldom get more than a slap on the wrist from courts and bar ethics committees, if that. Burger didn’t seem very upset that Perry conned him, because the real killer was caught. The ends justifies the means, or did in “Perry Mason.”

2. Ick or ethics? A Chinese scientist claims that he had successfully employed embryonic gene editing to help protect twin baby girls from infection with HIV. We are told that bioethicists in China and elsewhere are reacting with “horror.” Writes the Times,

“Ever since scientists created the powerful gene editing technique Crispr, they have braced apprehensively for the day when it would be used to create a genetically altered human being. Many nations banned such work, fearing it could be misused to alter everything from eye color to I.Q….If human embryos can be routinely edited, many scientists, ethicists and policymakers fear a slippery slope to a future in which babies are genetically engineered for traits — like athletic or intellectual prowess — that have nothing to do with preventing devastating medical conditions.”

As with cloning, my view on this controversy is that a new technology does not become unethical because of how it might be used. That unethical use will be unethical, and that is what needs to be addressed when and if the problem arises. (Airplanes could be used to drop atom bombs!) The fear of “designer babies” also seems to be an example of “ick”—it’s strange and creepy!—being mistaken for unethical. Making stronger, smarter, more talented and healthier human beings is not in itself unethical, even if it is the stuff of science fiction horror novels and Josef Mengele’s dreams. Continue reading

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