legal ethics

Ethics Warm-Up, 12/8/2020: Yet Another Date That Lives in Infamy

/ Jack Marshall / 17 Comments

It’s not Pearl Harbor, but the assassination of John Lennon in Central Park 40 years ago today by a deranged fan is one of the saddest days in popular music history, on the level of the premature deaths of George Gershwin and Buddy Holly.

I really don’t want to talk about it.

1. Scary. The New Yorker’s Steve Coll wrote that”Those of us in journalism have to come to terms with the fact that free speech, a principle that we hold sacred, is being weaponized against the principles of journalism.” David Harsanyi writes at The National Review,

If you believe Americans are too stupid to hear wrongthink, transgressive ideas, and, yes, fake news, you’re not a fan of the small-l liberal conception of free expression. That’s fine. Those ideas seem to be falling into disfavor with many. But the sanctity of free speech isn’t predicated on making sure people hear the right things, it’s predicated on letting everyone have their say. Because as always, the question becomes who decides what expression is acceptable. I’m not keen on having the fatuous media reporters at CNN or activist “fact-checkers” at the Washington Post adjudicating what is and isn’t permissible for mass consumption…this kind of selective esteem for sacred ideals is becoming popular on the contemporary Left. Religious freedom is wonderful when the government protects Native Americans who want to smoke peyote, but it is “weaponized” when an order of nuns decides it’s not interested in chipping in for condoms or an Evangelical business owner decides he’d rather not participate in a gay marriage. Due-process rights are foundational to American life, unless they are being “weaponized” by college students accused of sexual assault….For four years, journalists acted as if Donald Trump was an existential threat to free expression because he berated and insulted reporters. Trump’s tone was certainly unpresidential, but it needs to be said that he did absolutely nothing to hinder anyone from criticizing him or reporting about him. Contra the self-canonized Jim Acosta, it was not a particularly dangerous time to tell the truth. Indeed, reporters were not only free to accuse the president of being a fascist, they could concoct entire fake scandals surrounding the Russians, and Trump was powerless to stop them….

As I will be saying for the next four years as often as possible: This is what those who voted for Joe Biden have endorsed in their determination to express their tantrum over a President whose style they found obnoxious. I really don’t know how they will be able to live with themselves.

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From The “Bias Makes You Stupid” Files! Ethics Dunce: Legal Ethicist Steven Gillers

/ Jack Marshall / 2 Comments

A depressing theme throughout the Trump years has been the corruption of various professions as members once justifiably regarded as trustworthy abandoned their ethical obligations to become “resistance” allies. The professions thus tainted include judges, scientists, doctors and health professionals, lawyers, psychiatrists, historians, teachers and professors, university administrators, and of course the worst offenders, politicians and journalists. Maybe I’ve missed a few. One more profession that has to be included on the list, I’m ashamed to say, is legal ethicists.

In a post in 2017, I discussed the disgraceful filing of a frivolous and politically motivated bar complaint against then-Trump aide Kellyanne Conway by a group of law professors, some of whom are ethics specialists, and a few of whom I knew and respected. I wrote in part,

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2020 Election Ethics Train Wreck Update: Well THIS Doesn’t Bode Well…

/ Jack Marshall / 17 Comments

spelling problem

That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”

Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.

Observations:

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The Left’s Assault On The Rule Of Law And The Legal Profession’s Cowardice, Or “Nice Little Firm You Have Here—Be A Shame If Something Were To Happen To It!” (Continued)

/ Jack Marshall / 13 Comments

A-Pistol-Against-My-Head.

As discussed in the first section of this post, the once sacrosanct principle that lawyers and law firms were ethically obligated to represent unpopular clients when they needed legal assistance has been deteriorating for the last decade, most recently under pressure from the self-righteous Left. Victims of the new progressive ethic that the ends justify the means, Lawyers and law firms have been threatened when they dared to align themselves with the opposition to progressive agenda items, because, in the universe to the port side of the ideological spectrum, those who don’t agree with the righteous are evil.

And it seems clear that few lawyers possess the courage and integrity to remains professional in their response to such threats.

After the King & Spalding embarrassment described in the earlier post, a similar episode occurred involving Obamacare.  In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. After the House authorized the suit, David Rivkin and his firm, Baker Hostetler, signed a contract to litigate the case.

Rivkin was warned by members of the firm that litigating a case in opposition to Obama could drive off potential clients and hurt Baker Hostetler’s credibility…that is, its bottom line. Within a week after the contract was announced, partners at the firm, which represents many hospital management firms and insurance companies, started to receive urgent calls from general counsels of clients in the health-care industry. The messages were identical: their companies could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit. Many suspected that the Obama administration was behind the scenes, urging health-care companies to drop Baker Hostetler. The firm dropped the case.

The House, suddenly without legal representation, frantically sounded out many of the top firms in Washington without success. The House finally selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. Three weeks later, without any explanation, Burck also withdrew from the case under pressure from his firm’s partners.

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Afternoon Ethics Aggravations, 11/10/2020: Mitch, Audra, Jeff And Joy

/ Jack Marshall / 6 Comments

Annoyed

We just passed 300,000 comments on Ethics Alarms, and I’ll stack the consistent quality of them against any other blog on the web.

Thanks, everyone.

1.Regarding the gall, intellectual dishonesty and hypocrisy of Democrats and their supporters complaining about the President insisting on examining the returns and various irregularities before accepting the networks’ declaration that Biden won. I could not believe that Mitch McConnell and I would ever agree on anything, but we do this time. Yesterday he said in part on the floor of the Senate,

“Let’s not have any lectures, no lectures, about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election and who insinuated that this one would be illegitimate too if they lost again — only if they lost,” the majority leader added. In fact, millions of Americans signed a petition urging the electors to vote for Hillary Clinton after Trump won in 2016. The people who push this hysteria could not have any more egg on their faces than they do right now,”

Bingo.

2. Please note: unethical law firms just pay out damages and fines. It’s only individual lawyers—usually the little guys, sole practitioners— who get disciplined. A state court judge in Houston dismissed a $750 million lawsuit against the huge international law firm Jones Day filed by Berkshire Hathaway. The lawsuit alleged the law firm participated in a “massive fraud” in connection with its work on an acquisition in Germany. The case can be refiled, and probably will. A law firm committing fraud means that its partners were responsible for the fraud, but unethical or even criminal conduct by large law firms seldom result in discipline for the law firm’s partners. The technical reason is that bar associations don’t oversee firms, just individual lawyers, so for big firms assisting their clients in frauds and other crimes, there is safety in numbers.

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The Breonna Taylor Non-Indictments [Updated]

/ Jack Marshall / 19 Comments

We’ll see just how much Facts Don’t Matter in the Breonna Taylor fiasco aftermath. I heard shameless race-huckster Ben Crump speaking on TV, and when he started blathering on about 1619, I changed the channel to a re-run of “The Andy Griffith Show.” As a friend says, memorably but grossly, “There is some shit I won’t eat.” The sentiment is apt here.

The Kentucky grand jury did not indict current and former police officers for the shooting death of Breonna Taylor, though her name has been prominently linked to that of George Floyd and others during the promotion of protests and rioting in the George Floyd Freakout. As with Floyd, there was no evidence of racism in the death of Taylor, other than the fact that the three cops involved are white and she was black. That’s enough for the presumption or racism to stick, as we have learned in other cases, thus “justifying” Crump’s pronouncements.

Taylor, a 26-year-old EMT, was sleeping in her apartment on March 13 when police officers Jonathan Mattingly, Myles Cosgrove  and Brett Hankison, operating with a no-knock warrant that was mistakenly processed, burst in. Taylor’s boyfriend, Kenneth Walker, thinking that the apartment was being invaded, shot at them, and they returned fire. Taylor was accidentally killed by a bullet from Cosgrove’s gun in the crossfire, and five other bullets struck her as well.

Kentucky Attorney General Daniel Cameron held a  press conference after the grand jury’s decision was announced, explaining that because Walker fired first, Cosgrove and Mattingly were “justified in their use of force after having been fired upon.” The result was pre-ordained from the beginning unless prosecutors violated all ethical standards and pushed the jurors to indict the officers for Taylor’s death anyway as a sop to Black Lives Matters and an attempt to stem the violence likely to follow if the officers weren’t sacrificed to the mob.

I, legal experts, and anyone paying attention  doubted that the grand jury would or could return murder indictments on this set of facts. The 12 jurors did return three counts of wanton endangerment in the first degree against Officer Hankison for shooting his gun into the apartment next to Taylor’s, but that is unlikely to calm the fury of those who want to riot on general principles, if you can call “I’m mad as hell and I’m not going to take it any more!” a principle. Continue reading →

Ethics Warm-Up, 9/21/2020: The “Waiting To Hear What Democrats Will Threaten Next” Edition.

/ Jack Marshall / 17 Comments

Does anyone else find it remarkable that Democratic Party leaders aren’t the least concerned with how reasonable Americans might react to them talking like mobsters and thugs? Yesterday, Nancy Pelosi seemed to say that they might impeach the President if he nominates a judge to replace Justice Ginsburg. I suppose it’s comforting that the party is finally being open about the fact that it now regards impeachment as a pure partisan weapon, but how do you you threaten impeachment if a President fulfills his constitutional duties? For that matter, how can Democrats scream that the late Justice’s “dying wish” must be respected when it would require contradicting her statement about final year SCOTUS nominations: “The President is elected for four years, not three. So the powers that he has in year three continues into year four… and that’s how it should be”?

Well, it’s a rhetorical question, of course. Democrats have abandoned any pretense of consistency and integrity in their destructive anti-Trump mania. I thought this arch tweet was on point, but incomplete:

The list is much longer.

1. Love it. Princeton, engaged in BLM suck-up grandstanding, confessed that systemic racism is embedded there, so the Department of Education asked if Princeton doesn’t discriminate on the basis of race, as must be the case to continue recieveing federal funding.  The Education Department’s demand for an explanation got full huminahumina treatment in the statement Princeton issued in response. The excuse is that they aren’t at fault for the racism, since “everybody’s been doing it,” and at least Princeton acknowledges the problem.

Weak. Continue reading →

Labored Ethics, 9/4/2020: Insanity, Desperation…And Poll Answers!

/ Jack Marshall / 22 Comments

Happy Labor Day Weekend,

for those of you who don’t run your own business and will be working the whole time, because ethics never rests…

1. I guess it’s nice that Shaun King and Rachel Dolezal have another friend, but…I really don’t care about Jessica Krug, the suddenly “trending” professor and PhD who has, she now says, been pretending to be black her whole professional life, though she is a white, Jewish woman. According to George Washington University, she is an associate professor  and  a historian of politics, ideas, and cultural practices in Africa and the African Diaspora, with a particular interest in West Central Africa and maroon societies in the early modern period and Black transnational cultural studies.”

So either she’s a calculating con artist, like Elizabeth Warren, or she’s a nut. Either way, what she says now can’t be trusted, and beyond a a voyeuristic fascination with lunatics or the sight of someone engaged in extravagant self-flagellation ( “I am a coward. There is no ignorance, no innocence, nothing to claim, nothing to defend. I have moved wrong in every way for years….”), a can’t imagine any sock drawer more worth my time than reading about or thinking about this fraud.

We shall see if the next step is a book (“Fake Black Like Me”), a movie, or a series of interviews on NPR.

Meanwhile, it has been more than 24 hours since her confession was posted, and I assume—but who knows with a cheat or a lunatic?_-she gave her employer a heads up. Whether she did or not, she should have been fired by now. Why hasn’t she been?

2. The desperation continues. As the mainstream media and their political favorites finally admit that President Trump is increasingly likely to win in November, the signs of desperation and panic become palpable. A few days ago the rumor was that the President had three strokes, amazingly without anyone seeming to notice or leak to the news media. Who do they think he is, Grover Cleveland? It was ridiculous, and a Big Lie, but Trump felt he had to deny it (he did a good job, actually, with a funny tweet) , which is what Big Lies are supposed to make you do. He should not have. There will be rumors like this treated by the news media as genuine right up to the election. I predict there will be several that the New York Times runs front page stories about immediately, unlike, for example, the way it treated the still plausible accusation against Joe Biden of sexually assaulting a staffer. Continue reading →

Seeing Ethics In September, 9/1/2020…

/ Jack Marshall / 24 Comments

1. Well, THAT’s an easy question! At St Xavier Catholic Church in NYC over the weekend, the priest asked his flock, : “Do you affirm that white privilege is unfair…will you commit to helping transform our church culture” and embrace “racial justice.”?

The answer, of course, is “‘Bye!” No one should accept partisan and racist talking points from the clergy. This is an abuse of power, trust and position.

I think I’ll watch “Spotlight” again…

2. In case you were wondering, Ethics Alarms will have nothing definitive to say about the Kyle Rittenhouse saga, and won’t until I read a trustworthy account of what really happened. There seems no question that the original mainstream news media narrative that this was a white supremacist gun nut hunting peaceful protesters is the MSM misbehaving again. The backlash characterization of Ritterhouse as a brave citizen protecting local businesses from rioters also seems overly convenient. The video available suggests an element of self-defense, but it seems clear to me that the kid irresponsibly placed himself in a perilous position while provoking members of a less-than-rational mob. In the situation he voluntarily placed himself, Ritterhouse was likely to be killed or kill somebody. He was also violating the law by carrying his weapon when he was underage. Of course, the failure of the Kenosha police and the state to keep minimally endurable order also added to the deadly conditions.

3. Hey, Coup Plan E, good to see you! Where have you been?

The 25th Amendment arguments have  been relatively scarce lately, although Maxine Waters mentioned it a week ago without referencing any disability. She appears to think that the Cabinet can just remove the elected President with a vote. My God, she’s such an idiot.

If the President had three strokes, he sure recovered quickly. And doesn’t it take astounding gall to try this chestnut again now, when the Democrats are running a candidate who could be legitimately removed by the 25th Amendment ten minutes after he took the oath of office? Continue reading →

Monday Musical Ethics , 8/31/2020: A Number From Today’s Seminar!

/ Jack Marshall / 5 Comments

Good afternoon!

We ran out of time and had to dash through our last number on today’s version of Ethics Rock (By the way, Mike Messer really looks like the logo, which was designed before we found him), so I’ll let the legal ethics whizzes here (and everyone else: non-layers often do better on these quizzes than lawyers do—take a shot at the questions…Are you ready? “NJSBA” means “New Jersey State Bar Association,” you stress the “J” to make it scan.

“The Day My Ethics Died”

[A ProEthics legal ethics parody to the melody of “American Pie” by Don McLean]

A long, long, time ago,
I can still remember
Legal practice used to make me smile
And I knew if I could get my shot
I’d win my cases, like as not,
And then I could drink Chivas for a while.

But ethics rulings made me nauseous
I’m no good when over-cautious.
Clients give a cruel look
When they see you check the rule book.

I can’t remember if I cried
When I finally knew my brain was fried…
I took the rules and looked inside,
The day my ethics died.

So, hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Oh, I’m the king of slip and falls
My suits make safer lawns and halls
(At least my wallet tells me so.)

My client, Mick, is lame and sore
Since he hit his head on a banker’s floor
And his injury has left him kinda slow.

Now his father has me change his will
To take out Mick and give him nil;
I know its Dad’s estate—
But doing this to Mick I hate!

Then there’s the day when Mick pulls out his gun
And points to strangers in the sun
He says, “I’d like to shoot them, one by one!”

The day my ethics died.

And I am singing,

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Crying, lying, everything I’m trying
But Mick is nuts, there’s no denying
I do what he says and we’re dead.

This guy hears commands from Outer Space
And that strange expression on his face
Tells me something has pulled loose inside his head.

He’s pushing theories that won’t fly
And making arguments that I
Would never use in court…
Perhaps I should abort!

Or instead, before his fate is sealed
A guardian can make him yield;
I should have found a better field
Before my ethics died.

So now I’m singing,

Hey, hey, Mister VSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

Then, surprise! Just as I’m feeling sick
A settlement is offered Mick…
A deal like this won’t come again…
So come on Mick, be prudent, don’t be slow!

Drop the claim and take the dough
I’m sayin’, as your lawyer and your friend!

But Mick says no, it’s not enough
I argue, beg, and then get tough:
“You take it, or I’m through!
I’ll quit unless you do!”

Then as a last resort, I shout out, “Hey!”
“The Space Lords dictate what I say!”
And Mick says, “Really?! Then okay!”
The day my ethics died.

So I was singing

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

When the check arrived for Mick to take
He admitted that his pain was fake,
And I just groaned and turned away.

I tried to learn from CLE
But I fell asleep so rapidly
Though the man there gave me credit anyway.

And in the court the judges screamed
The juries drooled and the clients schemed
But nothing really mattered
My ethics all were shattered.

And the three things that inspired me
Justice,
Love, and a
Giant fee
Just seemed to be a mockery
The day my ethics died.

We started singing…

Hey, hey, NJSBA

Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”
“Do you really mean what you say?”

[SING ALONG!]

Hey, hey, NJSBA
Your committee has no pity for us lawyers today;
When black and white start to fade into gray
We ask, “Do you really mean what you say?”

Questions… Continue reading →