legal ethics

Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

/ Jack Marshall / 22 Comments

Good Morning from Virginia Beach, VA…

…where I am giving a legal ethics seminar to a law firm this morning!

1. Count the ethics issues in Travel Hell…This story is true, and I’m not changing any names, because nobody is innocent.

Last night I had to drive to Virginia Beach after another seminar in D.C., and after yet another road trip on family business. It turned out to be a three and a half hour drive in a pouring rain. Arriving at 2:20 am at the Virginia Beach Westin, where I was supposed to have a room, I was immediately informed by the graveyard shift desk clerk that we could not stay there…because the previous occupants of the room reserved for us (my wife and business partner also made the trip) had “left fecal matter” all over the room, creating a HAZMAT situation. Not to worry, though! The beachfront Hilton would put us up, at the Westin’s expense!

Since I wasn’t paying for the room, this was small consolation.

Of course, we had unloaded the car, and the Hilton was 20 minutes away, and the desk clerk had neither an address nor a phone number, which I pointed out to her was essential. (The point of staying at the Westin was that it was convenient to the location of the law firm.) So we loaded up the car and set out to the new destination, arriving just before 3 am. There, the Hilton desk clerk told us that the hotel had just begun an audit, and we could not be put in a room for at least 20 minutes. I was literally afraid to tell my wife this, as she was in the car alternately fuming and wincing in pain because the endless trip had revived her sciatica.

I was not nice to the Hilton desk clerk, who swore that she told the Westin about the problem, and that they should have told us. I said that I didn’t care whose fault it was, they were now responsible for two weary travelers, and that it was her responsibility to fix the problem. She found a very nice man who got a big tip from me for taking charge of our vehicle and taking our stuff up to our room when the “audit” was over.

Once in the room, we discovered that two of the lamps didn’t work, the desk lamp was missing, and the clock was blinking. I told the clerk to send someone up and have the room in the shape I expect hotel rooms to be in before I walk in the door—including having the clock set and functioning.

On the plus side, no fecal matter was in evidence….

2. Why people hate lawyers…Branson Duck Vehicles and Ripley Entertainment are facing multiple lawsuits in the horrific duck boat accident that killed 17 people in Missouri , including nine members of a single family. In court papers filed this week, the companies’ lawyer cited an 1851 maritime law to limit or eliminate liability for the July tragedy.

In a filing in federal court in Missouri, the defendants denied negligence in the sinking of the boat, and argues that if a court does find negligence, they have no liability because, under that law, “the Vessel was a total loss and has no current value. No freight was pending on the Vessel.”

The reaction was predictable. Human beings have no value? This was a Hail Mary defense tactic to be sure, but if that’s the clients’ best option, it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury.

No, President Trump Did Not Promise To Pay A Million Dollars To A Charity If Elizabeth Warren Took A DNA Test!

/ Jack Marshall / 17 Comments

…and Warren, a lawyer, either knows he didn’t and is saying so anyway, or is saying so without checking what he actually said, which, for a lawyer allegedly trying to enforce a contract, is both incompetent and dishonest.

And once again, the complicit mainstream media is deceiving the public to assist a Democrat’s misrepresentation. Nice.

Nah, there’s no mainstream media bias.

In a series of tweets on Monday, Warren called on Trump to pay the $1 million to charity. Trump replied to a reporter, “I didn’t say that; you better read that again.”

Says the Hill, in an article by Jordan Fabian, “Trump denies offering $1 million for Warren DNA test, even though he did.” In fact, he didn’t. This Time, Trump is telling the truth. The Hill, using the news media’s favorite trick of late, pulls only part of the relevant quote: “I will give you a million dollars, to your favorite charity, paid for by Trump, if you take the test and it shows you’re an Indian,I have a feeling she will say ‘no.’ ”

That wasn’t the whole statement. Bless law professor Ann Althouse: I was going to go through the analysis, and I really don’t have time. She’s retired now, has the time, and is a better contact lawyer than I’ll ever be. Here was her absolutely correct explanation: Continue reading →

Morning Ethics Warm-Up, 10/5/18: The Brett Kavanaugh Nomination Ethics Train Wreck STILL Keeps Rolling Along, But There’s Always Baseball, So Hope Survives

/ Jack Marshall / 14 Comments

Good Morning!

1. Ethics Dunce, Brett Kavanaugh Nomination Ethics Train Wreck Division: Retired Justice John Paul Stevens, who has already set a record for Supreme Court justices making post-career foolish statements that undermine their reputations, just violated a previously unbreached principle of professional ethics and protocol for ex-Justices. He told a private group that Kavanaugh doesn’t belong on the Court because of his “temperament.” I was thinking of ranking the rapidly proliferating bogus excuses for voting down Kavavaugh (I posted this instead). The temperament one is near the bottom of the barrel, in a layer or two above throwing ice and the comments in his yearbook. In his entire judicial career, there have been no incidents of unprofessional temperament or demeanor, and somehow I think that if any sitting judge was accused of being a rapist by a witness or a lawyer in his courtroom, an outburst of anger would be considered excusable. It’s a bad and unfair “gotcha!” argument by Democrats, but even it it was valid, Stevens is not supposed to be commenting on who belongs on the Court….just as Barack Obama should not be attacking his predecessor after George W. Bush was so exemplary in not attacking his successor.

2. Weird baseball ethics. I meant to include this one yesterday. In the Colorado-Cubs wild card play-off game, runners were on first and second with one out when a slow bouncer was hit to Rockies third-sacker Nolan Arrenado just as Cubs runner Javy Baez approached him on the way to third. Arenado tagged Baez out, and Baez wrapped his arms around him. Meanwhile, the runner on first went to second, and the batter reached first. Arenado smiled and disentangled himself, but he didn’t–couldn’t—throw to either base for another out.

It was absolutely interference. A runner can’t do that, but the umpires didn’t call it (the double play would have been called without a throw, and the inning ended), so the frame continued.  The game was close, and if the Cubs had scored (they didn’t) that inning, it would have been because Baez broke the rules and the umpires didn’t notice (or care). The announcers opined that Arenado didn’t “sell it,” that if he had violently pushed Baez away and tried to make a throw, interference might have been called. Instead, he smiled and treated Baez’s hug  like a sentimental show of affection.

Once upon a time, before player unions, huge contracts and routine fraternization, no player would have expressed friendly amusement as Arenado did. Nolan is the Rockies best player, and he stopped concentrating on the game. Only moral luck stopped it from being a disastrous lapse. Continue reading →

Monday Morning Ethics Warm-Up And Sunday Left-Overs, 9/10/18: Values Under Fire

/ Jack Marshall / 22 Comments

Good Morning.

1. A plug. The computer rescue service GuruAid is why I couldn’t get a Warm-Up post up yesterday: about four different technicians spend from 6:30 am to 3:00 pm helping me fix a serious malfunction in my old Dell PC, so I wouldn’t have to lose Windows 7 forever. It wreaked havoc with my day and schedule, but the computer finally starts immediately without black-outs, red screens, blue screens, warning, check points, sudden freezes and other distractions.

2. Yeah, why waste time on all of this “values” stuff? The Texas Board of Education will decide in the coming months whether to accept the recommendations of a working group to end state requirements that the heroism of the Alamo’s defenders be taught to seventh graders in a required history course, as as study of  William Barrett Travis’s iconic letter written before the final Mexican siege that killed all of the approximately 200 defenders, including Travis. The letter ends, “I am determined to sustain myself as long as possible & die like a soldier who never forgets what is due to his own honor & that of his country — Victory or Death.”

The group of educators and historians, tasked with streamlining social-studies standards, felt that teaching about “heroic” acts at the Alamo was “value-loaded,” and eliminating them from the curriculum, along with the significance of such Alamo figures as Davy Crockett and James Bowie would save 90 minutes.

You know, I don’t think I’m even going to bother explaining what’s wrong and alarming about this, except to note that if you wonder why our rising generations don’t understand what has been great about America, or why being a nation founded on values and ideals is important, this episode ought to enlighten you.

3. Beach ethics. Here is an interesting article about how to maximize ethical conduct at the beach. Continue reading →

Morning Ethics Round-Up, 8/23/2018: A Quote Fest!

/ Jack Marshall / 6 Comments

Good Morning!

1. Now THIS is narcissism! It’s long, but go ahead and read it.  This  was Madonna’s “tribute” to the late Aretha Franklin at the VMAs this week:

Aretha Louise Franklin changed the course of my life. I left Detroit when I was 18. $35 in my pocket. My dream was to make it as a professional dancer.
After years of struggling and being broke, I decided to go to auditions for musical theater. I heard the pay was better. I had no training or dreams of ever becoming a singer, but I went for it. I got cut, and rejected from every audition. Not tall enough. Not blends-in enough, not 12-octave range enough, not pretty enough, not enough, enough. And then, one day, a French disco sensation was looking for back-up singers and dancers for his world tour. I thought, “Why not?” The worst that can happen is I could go back to getting robbed, held at gunpoint and being mistaken for a prostitute in my third floor walk-up that was also a crack house. So I showed up for the audition, and two very large French record producers sat in the empty theater, daring me to be amazing. The dance audition went well. Then they asked if I had sheet music and a song prepared. I panicked. I had overlooked this important part of the audition process. I had to think fast. My next meal was on the line. Fortunately, one of my favorite albums was “Lady Soul” by Aretha Franklin. I blurted out, “You Make Me Feel.” Silence. “You Make Me Feel Like A Natural Woman.” Two French guys nodded at me. I said, “You know, by Aretha Franklin.” Again, “Mmmhmm.” They looked over at the pianist. He shook his head. “I don’t need sheet music,” I said, “I know every word. I know the song by heart, I will sing it a cappella.” I could see that they did not take me seriously. And why should they? Some skinny a– white girl is going to come up here and belt out a song by one of the greatest soul singers that ever lived? A cappella? I said, “Bitch, I’m Madonna.”

No, I didn’t. I didn’t say that. Cause I wasn’t Madonna yet. I don’t know who I was. I don’t know what I said. I don’t know what came over me. I walked to the edge of the pitch black stage and I started singing. When I was finished and drenched in nerve sweat. Y’all know what this is, right, nerve sweat? They said, “We will call you one day, and maybe soon.” So weeks went by and no phone call. Finally, the phone rang, and it was one of the producers, saying, (French accent) “We don’t think you are right for this job.” I’m like, “Why are you calling me?” He replied, “We think you have great potentials. You are rough for the edges but there is good rawness. We want to bring you to Paris and make you a star.” We will put you in a studio . . . it sounded good, and I wanted to live in Paris and also I wanted to eat some food. So, that was the beginning of my journey as a singer. I left for Paris.

But I came back a few months later, because I had not earned the luxury life I was living. It felt wrong. They were good people. But I wanted to write my own songs and be a musician, not a puppet. I needed to go back home and learn to play guitar, and that is exactly what I did. And the rest is history.

So, you are probably all wondering why I am telling you this story. There is a connection. Because none of this would have happened, could have happened, without our lady of soul. She led me to where I am today. And I know she influenced so many people in this house tonight, in this room tonight. And I want to thank you, Aretha, for empowering all of us. R-e-s-p-e-c-t. Long live the queen.

Another anecdote I would like to share: In 1984, this is where the first VMAs were, in this very building. I performed at this show. I sang “Like a Virgin” at the top of a cake. On the way down, I lost a shoe, and then I was rolling on the floor. I tried to make it look like it was part of the choreography, looking for the missing stiletto. And my dress flew up and my butt was exposed, and oh my God, quelle horreur. After the show, my manager said my career was over. LOL.

The fact that Madonna is getting flack for this is almost as funny as the fact that she would think a long monologue about herself qualified as an appropriate tribute to Franklin. This is a manageable mental illness, but it is pathological, and Madonna is an extreme narcissist in a business that produces them in bushels. But didn’t everyone know that? Why, knowing that this woman only sees the world in terms of how it can advance her interests, would anyone entrust  her with giving a tribute to anyone else? That’s rank incompetence.

Narcissists are incapable of ethical reasoning, since ethics requires caring about someone other than yourself.  Madonna’s “tribute” is a valuable window into how such people think. Madonna really thought the nicents thing she could say about Aretha Franklin is that she made a cameo appearance in Madonna’s epic life.

2. Next, a ventriloquist act! Continue reading →

Sunday Morning Ethics Warm-Up, 8/19/18: Operating Under A Disability

/ Jack Marshall / 5 Comments

Good Morning,

from Erie, Pennsylvania!

1. Handicapped. Unfortunately, my circumstances on this trip, which include a draining computer, hours of driving, the usual vicissitudes of travel but time two (my wife is with me), and multiple speaking responsibilities are going to influence my choice of topics. This is the blogging ethicist’s version of dealing with a disability, as I was discussing in yesterday’s seminar.

It is not unethical for a lawyer to continue to practice law while he or she has a drinking problem, or is developing dementia, or has the flu, but it iss unethical to do so while any of these maladies threaten to diminish the lawyer’s trustworthiness, diligence, zeal or competence. The professional has an ethical obligation to manage disabilities. In my case, several ethics issues that are in the news will require more concentration and analysis to handle well than I am able to muster right now, as I type with one eye on the battery charge and try to work in a hotel room with more than the usual distractions and interruptions. The participation of the White House Counsel in the Mueller investigation, for example, will just have to wait.

We are going to try to find a new power cord today. No, the hotel business center computers won’t do: there isn’t enough time to get even a single post up on them, among other impediments. Continue reading →

Afternoon Ethics Jolt, 8/3/2018: A Lawyer Finds A New Way To Be Unethical, Verizon Makes Our Kids Obnoxious And Ignorant, And The Times Decides To Show Its Colors…

/ Jack Marshall / 22 Comments

 

Good…afternoon.

Yes, I couldn’t get this up before noon again. Mornings have been crazy lately. And no, I’m not at the beach…I just WISH I was at the beach.

1. A legal ethics “Kaboom!“ From the New York Times account of the litigation surrounding New York Yankee great Thurmon Munson’s death when his private plane crashed in 1979:

James Wiles, one of FlightSafety International’s lawyers at the time, still contends there was no culpability in Munson’s death on the part of either company. But a trial, he said, was just too risky…. Wiles, who was present for all the depositions…said that when Yogi Berra testified, he put a box of 24 baseballs in front of him and requested he sign them. Berra, who was a Yankees coach when Munson died, grudgingly obliged, but at one point asked if Wiles was authorized to make such a demand.

“It’s my deposition,” Wiles said he told Berra.

My head exploded after reading that. There is no rule I can find that declares such a blatant professional abuse unethical, unless it is the deceitful “It’s my deposition” response, which is literally true but falsely implies that the lawyer has the power to force a witness in a deposition to do something completely unrelated to the case for the lawyer’s personal benefit. Rule or no rule, this was incredibly unethical, and a perfect example of how lawyers will come up with ways to be unethical that they can’t be sanctioned for.

2. More on the New York Times’ new editor: Yesterday, I covered the astounding—but maybe not so astounding—appointment of far-left journalist Sarah Jeong as its technology editor despite a huge archive of explicitly racist and sexist tweets. The Times’ defiant explanation, a rationalization, really, stated:

“We hired Sarah Jeong because of the exceptional work she has done … her journalism and the fact that she is a young Asian woman have made her a subject of frequent online harassment. For a period of time she responded to that harassment by imitating the rhetoric of her harassers. She regrets it, and The Times does not condone it.”

Jeong’s statement was simply dishonest:

“I engaged in what I thought of at the time as counter-trolling. While it was intended as satire, I deeply regret that I mimicked the language of my harassers. These comments were not aimed at a general audience, because general audiences do not engage in harassment campaigns. I can understand how hurtful these posts are out of context, and would not do it again.”

The issue is not whether she will “do it again”—presumably even the Times wouldn’t stand for that, but whether her many racist outbursts online do not raise the rebuttable presumption that she is, in fact, a racist. Nothing in her statement tells us that she doesn’t believe such things as “white men are fucking bullshit,” only that she didn’t aim these comments at the general public.

I find it hard to believe that the even Times is so stupid and arrogant that it will dig in its metaphorical heels and refuse to admit its gross mistake. As Glenn Reynolds writes today, Continue reading →

Saturday Morning Ethics Warm-Up, 7/28/18: Expired Ethics, Sleeping Fact-Checkers, Ghosts, The Dumbest Ethics Train Wreck Of Them All…

/ Jack Marshall / 53 Comments

It’s a beautiful morning!

1. When “Everybody Does it” isn’t just a rationalization. I was asked by a law firm to render an opinion as to whether particular conduct was a violation of the legal ethics rules.  A legal ethics opinion—bar associations issue these periodically to cover gray areas– in the jurisdiction said that it was, but the opinion was over 20 years old. The reasoning given in the opinion for declaring the conduct unethical was that the practice was “new to the jurisdiction” and might mislead or confuse the public.

Today, however, my research showed, the conduct is commonplace in that jurisdiction. Many, many law firms engage in it. What was new two decades ago is new no longer, and the reasoning for the opinion’s conclusion was based on conditions that no longer exist. Moreover, no firm has been punished for the conduct, and won’t be.

The firm was concerned that the legal ethics opinion had not been over-ruled or withdrawn. I said that it didn’t have to be. “Everyone” was engaged in the conduct it forbade, the bar had allowed “everyone” to do it, and if an issue was raised now, I am 100% certain that the old opinion would be withdrawn as no longer reasonable or germane.

2. One more human feature that makes ethics harder: the ability to simultaneously hold two contradictory and mutually exclusive beliefs.

I was watching one of the apparently inexhaustible supply of cable shows about haunting and paranormal investigations with my wife. This one climaxed in a session with a Ouija board, and the love of my life uttered, within seconds of each other, these two statements:

  • “It’s amazing how many otherwise intelligent people really believe in ghosts and demons.”
  • “Ouija boards! I wouldn’t allow one of those things in the house. I’m not taking any chances.

I have heard many other friends and acquaintances endorse both of these positions as well.

3. It is the study of how one discerns the truth, after all. Who needs it? They no longer teach ethics in our education system, and now apparently philosophy is on the way out. Claremont Graduate University in California will be closing the PhD program in philosophy and terminating two tenured faculty. Apparently the move was dictated by budget and “market considerations.” The Claremont colleges in Southern California are a distinguished and growing batch consisting of Pomona, Scripps, Harvey Mudd, Claremont-McKenna, and Pitzer. They still have a philosophy faculty, but I wonder for how long.

I was tempted to check the curriculum of these schools to see what kinds of courses were deemed worthy of support while a graduate degree in philosophy was not, but I decided that it would make my head explode. Continue reading →

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 →