legal ethics

Morning Ethics Warm-Up, 7/27/18: Welcome Nausea, Disillusionment, Guilt, And Apathy…

/ Jack Marshall / 26 Comments

Well, it’s morning.

1. Nausea. This is a real headline from this morning’s New York Times:

Truce on Trade Follows Route Obama Paved; Trump Claims Victory in Crisis He Started

Gee, the Times morphed into Media Matters so slowly that I hadn’t noticed!* In fact I had noticed, but that headline is a virtual declaration that the Times is now a fully committed partisan organ of the Democratic Party, and is no longer even pretending to be practicing ethical or objective journalism. Not only does the headline represent opinion rather than reporting, the Times was so desperate to color the story of the European Union tentatively reaching a new trade agreement with the U.S. that it felt it had to project its bias before anyone could read the story.

*With a nod to blogger Glenn Reynolds, who uses this as a regular jibe

2. Disillusionment. Netflix has finally concluded “The Staircase,” the now 13 episode documentary following the bizarre case of novelist Michael Peterson, who was convicted of murdering his wife Kathleen in 2001. Directed by French filmmaker Jean-Xavier de Lestrade, the first eight episodes aired on the Sundance Channel in 2005 and were an immediate sensation. It would be unethical to spoil the story or the documentary for you if you haven’t seen it, but a couple of spoilers lie ahead.

Anyone who continues to argue that it is ridiculous and “treasonous” for anyone to challenge the competence, objectivity, motives and trustworthiness of law enforcement, including the FBI, and prosecutors after watching this horror show has astounding powers of selective outrage.

The series also made me want to throw heavy objects at the TV screen as a result of the lazy, passive, indefensible conduct of the prosecutors and the North Carolina judge, who resided over every iteration of the case for 15 years. Since there was no way a rational jury could find Peterson guilty beyond a reasonable doubt based on the evidence, ethical prosecutors would never have charged and tried Peterson. (A jury finding a defendant guilty on inadequate evidence doesn’t necessarily mean that the case was a just one.) It is especially infuriating for the viewer (so imagine what Peterson thinks) to hear the judge today blandly concede that two controversial pieces of evidence he allowed into the trial were, upon reflection,  unjustly prejudicial, and that he believes that there was ample reasonable doubt for the jury to acquit. Then he tries to make the argument that the “system works” based on a mess of a case and an investigation that still hasn’t explained how Kathleen Peterson died.

It does explain, however, why so many Americans don’t trust the justice system or the alleged professionals who run it. Continue reading →

Morning Ethics Warm-Up, 6/20/18: Darrow, Damn Technology And Dunkin’ Donuts

/ Jack Marshall / 23 Comments

Good Morning!

1. Shameless self-promotion Dept. Once again, I am presenting my three-hour Clarence Darrow and modern attorney ethics CLE program for the D.C. Bar, and later this summer, Virginia CLE will be sponsoring the same seminar in Richmond and Northern Virginia. As always, my partner and collaborator in All Things Darrow is esteemed D.C. actor (and American University law school instructor, and, I am proud to say, my friend) Paul Morella, who has been Darrowing since he premiered my one-man show about the great and flawed lawyer in 2000, for The American Century Theater. His website is here. This is Paul…

Paul is a lot taller, thinner and better looking than Darrow, and unlike Clarence, he also bathes regularly. It doesn’t matter. I can’t recommend his show, which he performs for bar associations and legal groups around the country, more highly, and would feel this way even if I hadn’t written it. Of course, any group that wants Continuing Legal Education credits can also book today’s seminar, which has many of Darrow’s greatest courtroom orations, but also legal ethics commentary from me.

2. Ah-HA! NOW I understand why I’m being sued for defamation!  This is in the “This comes as no surprise” category, but it still explains a lot. The Pew Research Center just released a survey that demonstrates that a large proportion of the public can’t distinguish facts from opinions. The main portion of the study  measured the public’s ability to distinguish between five factual statements and five opinion statements. Pew found

“…that a majority of Americans correctly identified at least three of the five statements in each set. But this result is only a little better than random guesses. Far fewer Americans got all five correct, and roughly a quarter got most or all wrong. Even more revealing is that certain Americans do far better at parsing through this content than others. Those with high political awareness, those who are very digitally savvy and those who place high levels of trust in the news media are better able than others to accurately identify news-related statements as factual or opinion.”

I challenge that last part. It may well be that those who place high levels of trust in the news media could distinguish between fact and opinion in those  ten statements, but it doesn’t change the fact (now this is my opinion, but I still believe it is demonstrably true) that the news media distorts what it represents as facts based on journalists’ biased opinions. Continue reading →

Mayor De Blasio, Mrs. De Blasio, And Rationalization #68: The Volunteer’s Dodge, Or “You Don’t Pay Me Enough To Be Ethical!”

/ Jack Marshall / 11 Comments

New York City’s Mayor Bill de Blasio (D), an unapologetic social justice warrior and crypto-socialist, installed his wife, Chirlane McCray, as the executive director of  the Mayor’s Fund to Advance New York City, NYC’s nonprofit foundation. Under the previous mayor, the Fund had raised tens of millions of dollars annually for a wide range of projects, from anti-poverty initiatives to Superstorm Sandy recovery. McCray cannot receive a salary for her job, though the mayor has complained bitterly about this. Nepotism is outlawed under the City Charter in Chapter 68 which forbids public servants using their positions “to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.”

Under the leadership of McCray,  fundraising for the Mayor’s Fund has stalled. In the Bloomberg years, the nonprofit raised an average of $32 million per year, while under Mrs. de Blasio’s stewardship  it has raised an average of $22 million annually, a third less. This may be explained in part by the fact that she often isn’t working at her job. She has attended fewer than half of the meetings of the Fund’s board, and spends just an hour each week on the foundation’s business. It is June, and the New York Times reports that she hasn’t  visited the Fund’s offices in 2018, and was largely absent in the latter half of 2017. As the fund’s revenues have dived, its expenses have soared 50% since she took over,  with the organization moved into bigger offices. The Fund also supports fewer projects.

Sniffs the Times in an editorial, “the Mayor’s Fund under Mr. de Blasio and Ms. McCray has done less with more.”

De Blasio, who has pretty much solidified his reputation as a jerk, defended his wife by saying that she had done “an extraordinary job,” insisting to critics that  “You’re missing what her work is about.”

Her work is about raising money, and she’s not doing that very well. As the Times says, the first rule of fund-raising is to show up.  Mrs. Mayor helpfully added,  “It’s not about who can raise the most money.” Wait, what? Has anyone explained to her what her job is?

Then de Blasio said this, thus causing the proverbial light bulb to go off in my head, as he perfectly illustrated a rationalization that has somehow missed inclusion on the Ethics Alarms Rationalizations List:

“She does all that for zero dollars a year.”

“All that” meaning “a crummy job.”

Say hello. Mr. Mayor,  to… Continue reading →

Governor Greitens And The Unethical Release-Dismissal Tactic

/ Jack Marshall / 5 Comments

(The gun being held to the signer’s head is out of the frame…)

The resignation of Missouri Governor Eric Greitens (R), a result that appears to have been over-due, deserved, and necessary, also involved a common form of unethical prosecution. The device is called Release-Dismiss, and it looks, smells and feels unethical. Nevertheless, the Supreme Court and most of the states continue to allow it. They shouldn’t.

Greiten’s resignation came as a result of a plea deal after St. Louis Circuit Attorney Kim Gardner agreed to dismiss charges that Greitens tampered with a computer donor list of a veterans’ charity he founded. The deal also included Grietens’ promise not to sue Gardner or her office.

Greitens’  legal fees were over $2 million, he said,  and he could not afford to go to trial on the charges.  Gardner  said  she was confident she had  the evidence required to convict  Greitens. (That’s what they all say.) But the fact remains that the threat of criminal prosecution was used to pressure Greitens into giving up his civil rights.

In a scholarly paper on this maneuver, one authority writes,

A phenomenon exists in the criminal justice world which allows a prosecutor to strike a bargain with a criminal defendant, permitting them both to cut their losses and walk away from a mutually bad situation. On occasions where arrested individuals may have been wronged by public officials in the course of their arrests, prosecutors may legally agree to dismiss defendants’ criminal charges in exchange for releases by the defendants of any civil claims arising from the arrests. The release-dismissal agreement, and variations upon its theme,’ have been the subject of controversy for several years.

Its supporters rely on the obvious efficiency embodied in the situation. Despite this efficiency, such agreements are dangerous, detrimental to the criminal justice system, and against the better interests of society.

I agree. So does Professor Turley, who wrote, Continue reading →

End Of May Morning Ethics Warm-Up: The Games People Play

/ Jack Marshall / 39 Comments

Good Morning!

1. Too soon? On June 6,  “Active Shooter” will be released. The video game allows players to take part in a simulated school shooting scenario, assuming the role of either the shooter, a SWAT team member, or a student trying to survive. the simulation’s developer is Rival Games, and it be sold on the Steam online store. Naturally, the game is being condemned, and there are even calls to ban it.

I see nothing unethical about the game at all. Depending on how well it is constructed, I can even see some benefits of it. A simulation on-line makes more sense that silly active shooter drills in schools, which only increase student anxiety and create the illusion that such an event is more likely than it is.

Promotion for Active Shooter has a disclaimer stating: “Please do not take any of this seriously. This is only meant to be the simulation and nothing else. If you feel like hurting someone or people around you, please seek help from local psychiatrists or dial 911 (or applicable). Thank you.” This is a CYA message, of course. The company is considering removing the option of playing the shooter; I think this would be wise.

Yes, of course the game is offensive and upsetting to many, especially those whose family members and friends were involved in these tragedies. They definitely shouldn’t buy the game. But let’s take a poll:

2. Pantsgate. In what must be the longest running stupid legal ethics story ever, the District of Columbia Board on Professional Responsibility is recommending a 90-day suspension for  former judge Roy Pearson Jr., who sued his dry cleaners for $67 million for allegedly losing his pants in 2005. I wrote about this crazy story on the old Ethics Scoreboard, which is currently off line, but will be back soon, I swear.

Pearson first sought $1,150 as compensation for his lost Hickey-Freeman pants, but when the dry cleaners refused to pay, he escalated his litigation, finally reaching what the board called “the absurd” $67 million  claim. The board, like an earlier hearing committee, found that Pearson  violated ethics rules barring frivolous claims (Rule 3.1) and serious interference with the administration of justice (Rule 8.4). The board disagreed with the hearing committee’s lenient recommendation of a stayed suspension. Continue reading →

Morning Ethics Warm-Up, 5/23/2018: The Honored And the Dishonorable

/ Jack Marshall / 30 Comments

Good morning!

1. A major ethics condemnation of Harvard will be posted soon; this is just the ours de vours...Harvard is disgracing itself and embarrassing its alumni one more time by awarding Hillary Clinton the once-prestigious Radcliffe Medal—it can’t be prestigious after this fiasco–for her “transformative impact on society” as part of the school’s graduation activities this week.  Harvard says Clinton was chosen for the award because she’s a “champion for human rights,” a “skilled legislator” and “an advocate of American leadership” on the world stage.

Let’s get this straight up front, shall we? Harvard, headed by feminist social justice warrior Drew Faust, is giving an award named after Harvard’s now defunct sister school that championed female power, dignity, and achievement independent of men, to the woman who meticulously enabled, aided and abetted a serial harasser, sexual abuser, and philanderer by intimidating and disparaging his female victims, so she could ride on his coat-tails to achieve wealth, influence and power that she never could have attained otherwise. Once within reach of that power, she managed to botch two Presidential runs against unlikely underdogs, while reducing the feminist message to “vote for vaginas.” Meanwhile, she joined with her husband in creating a massive influence peddling business that made them both rich. Having lost a Presidential election that she only had to stay out of major scandals to win, she has become the only losing Presidential candidate in U.S. history to continue whining about her loss at every opportunity for 18 months, thus strengthening a negative female stereotype.

Did I miss anything? Probably. This is once more consolation prize Progressive Feminist Inc. is giving to Hillary as virtue-signaling, which is ironic, because it signals hypocrisy, corruption, and dishonesty.  She is an ethics corrupter. She has made the culture, politics, society, and the nation worse. Harvard’s award is just one more example.

2. Not exactly Lincoln-Douglas…The recent Munk debate–part of a series series of  discussions that the news media keeps calling “highbrow,” which only shows how lowbrow the news media is—considered the statement, “Be it resolved, what you call political correctness, I call progress…”

What you call “progress,” I call thought control, censorship, and partisan bullying, and I say the hell with it.  Race-baiting professor Michael Eric Dyson and left-wing pundit Michelle Goldberg defended the indefensible “pro” position, and probably believe it, too, which is depressing all by itself. The “con” side at least had glib, currently-in University of Toronto Clinical Psychologist Jordan Peterson, who has a best-selling book and who became a celebrity after winning a duel of wits with an unarmed British journalist. He was paired with British actor /entertainer Stephen Fry: these debates are so highbrow, the organizers don’t think anyone will watch them if they don’t have jokes.  Even if the sides had been fairly constructed (any team with Michelle Goldberg on it has been sabotaged), it’s a terrible debate topic. The day the “pro” side wins is the day “1984” has arrived. Predictably, “con” won, and this was in Canada, which doesn’t have a First Amendment (the term “political correctness’ is inherently hostile to freedom of speech, and don’t think for a second progressives don’t know it.)

So, saddled with a losing argument, Dyson did what he does: he played the race card. “You’re a mean, mad, white man,” he said to Peterson at one point. End of debate, if I am moderating. When you have to stoop to ad hominem attacks, you’ve lost.  An equally acceptable rejoinder by Peterson would have been, “And you’re a black son of a bitch.”

Technical knockout. And Dyson unmasked himself as the fraud that he is. Continue reading →

Sun Day Morning Ethics Warm-Up, 5/20/2018: Bright Above, Dark Below…

/ Jack Marshall / 24 Comments

What IS that thing???

Good Morning!

There is this big, white-yellow, ball-thing in the sky overhead..not sure what it is.

The sky is also this weird bluish color.

Very strange…

1. The news media actually calls this creep a moral authority...which itself is significant. On his late-night talk show, Jimmy Kimmel said, “President Trump said he is with the people of Santa Fe in this tragic hour and will be with them forever—except for when it comes time to do something. Then he will not be with them.”

Trump’s post shooting statement was standard issue President-after-tragedy stuff, neither unusual nor objectionable to anyone not seeking to manufacture offense.  “We grieve for the terrible loss of life, and send our support and love to everyone affected by this absolutely horrific attack,” Trump said. “To the students, families, teachers, and personnel at Santa Fe High: We’re with you in this tragic hour, and we will be with you forever. My administration is determined to do everything in our power to protect our students, secure our schools, and to keep weapons out of the hands of those who pose a threat to themselves and to others. Everyone must work together, at every level of government, to keep our children safe.”

Kimmel :“They care more about the support of the NRA than they do about children.”

Kimmel’s statement is signature significance for an ignorant, unscrupulous asshole, and one who either has never read the Constitution, or doesn’t care what it says. There is absolutely nothing that the President of The United States, (or “they”) could or can do to prevent school shootings like the one in Santa Fe.

2. Who wants to join me in a sit-in at Starbucks? It will have to be a lily-white sit-in to make the point. Starbucks’ desperate, pandering, virtue-signaling, deranged new policy that allows anyone to sit in its stores or use its restrooms, even if they don’t buy anything, immediately guarantees the Tragedy of the Commons, which the silly, social justice warrior-run company apparently felt was a preferable disaster than to be accused of racism for enforcing a reasonable and necessary rule when blacks were the violators. If all the tables and space are taken up by non-customers, loiterers and free-riders, Starbucks can’t do any business, but it is literally saying, “We don’t care!” Why? Well, even if they ordered white freeloaders to leave, every time the freeloader was black, Hispanic, gay or in a wheelchair, a YouTube video would appear, go viral, and Starbucks would be tarred as corporate bigots. The police could try this same strategy: announce that officers will not fire on any individual resisting arrest or threatening an officer’s life. I’m sure that will work out well too.

3.  Yes, this was the quality of the people running the country during the Obama years. Obama’s Education Secretary Arne Duncan argued on Twitter that parents should pull their children out of school until elected officials pass stricter gun control laws. He really did. Let’s have a contest: List how many ways this suggestion is unethical. I’ll get you started: it is irredeemably stupid, and thus an abuse of influence, making the naive and easily gulled believe that because this man ran the Education Department, he is a respectable authority whose bone-headed utterances can be trusted and taken seriously. (I see at least five more.) Continue reading →

What Is Fairness, Justice And Proportion For Aaron Schlossberg?

/ Jack Marshall / 93 Comments

“He’s a jerk. Let’s squash him like a bug…”

Surely by now you know of Aaron Schlossberg, the latest cultural villain.

He was the star and author of a bizarre incident at a restaurant in Manhattan. Schlossberg, who is a midtown Manhattan lawyer, freaked out beyond all reason when a customer began conversing in Spanish with employees at the restaurant. “Your staff is speaking Spanish to customers when they should be speaking English,” he protested. “Every person I listen to — he spoke it, he spoke it, she’s speaking it. This is America! “My guess is they’re not documented, so my next call is to ICE to have each one of them kicked out of my country.If they have the balls to come here and live off of my money — I pay for their welfare, I pay for their ability to be here — the least they can do is speak English…I’m calling ICE.”

Naturally, this was captured on a phone video. Naturally, it was posted to social media. Once upon a time a person could behave like a jackass and only have the immediate witnesses to his conduct know about it. No more. Now, thanks to omnipresent cell phones, everyone is under more or less constant surveillance, and a bad moment, a sudden outburst or an ill-considered word can and will be wielded by steely-eyed social justice enforcers to destroy a miscreant’s life to the maximum extent possible.

Is that the kind of society you want to live in? It would be wise to consider the fate of Aaron Schlossberg.

Somehow his name became known. The news media picked up his tantrum: the Daily News put it on its front page! The New York Post reported that he has been evicted from his office by Corporate Suites, the company that held his law office lease.  His firm’s associate quit, with a nice virtue-signaling tweet. A petition demanding that he be disbarred has more than 10,000 signatures, and there is a GoFundMe effort to a  hire a mariachi band to follow him around New York.

That’s kind of funny, I have to admit. Continue reading →

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

/ Jack Marshall / 24 Comments

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading →

McCoy v. Louisiana

/ Jack Marshall / 30 Comments

Today the Supreme Court ruled in favor of Robert LeRoy McCoy, who was convicted of three counts of murder after his lawyer refused to follow his instruction and plead not guilty as he directed. I had predicted that his convictions would be over-ruled; I also wrote,

“If the Supreme Court does anything but overrule Louisiana in this case by a 9-0 vote, I may turn in my law license in exchange for a free Whopper at Burger King.”

Well, the vote wasn’t 9-0. I think instead of turning in my license, I’m going to turn in my respect for the so-called conservative wing of the Court. The majority opinion was authored by Justice Ginsberg, with Kagan, Sotomayor, Breyer, Roberts, and Kennedy concurring. Two of the conservatives concurred in a dissent authored by Alito: Gorsuch and thomas.

I haven’t had time to read it as carefully as I have to to do a thorough analysis, but I read it well enough to flag it as an embarrassing collection of rationalizations. While the majority opinion interprets a straightforward case according to what is significant about it—a lawyer pleaded guilty for him when his client demanded that he plead non guilty, thus making the conclusion unavoidable, Alito resorts to desperate excuses. Well, this kind of case isn’t likely to happen again. So what? A man was robbed of his Sixth Amendment rights! His story was ridiculous. So what? If that’s his story, he has the right to tell it. The lawyer was placed in a tough situation by a client whose claims were unbelievable. The jury decides who to believe, and a defendant has the right to let them do that. McCoy’s lawyer didn’t believe him. So what? Welcome to criminal defense work. McCoy was going to be convicted anyway.

What????

I can’t believe a Supreme Court Justice is making these arguments. So what? The principle of the rule of law is that it is vital that the defendant, if he is convicted, is convicted the right way, constitutionally. The conduct of McCoy’s lawyer was indefensible under the ethics rules, and the Constitution.

Reading the whole opinion and the dissent is revealing, and not in a good way. The majority opinion shows us that the Supreme Court can’t say the sky is blue without making the case in the mots turgid way possible. This opinion should have been a few pages at most.

The dissent lets us know that Justices Alito, Gorsuch and Thomas look for minuscule fragments of justifications to avoid doing the right thing.