legal ethics

Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

/ Jack Marshall / 10 Comments

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading →

Morning Ethics Warm-Up, 12/22/2017: The Best Laid Plans….

/ Jack Marshall / 30 Comments

GOOD MORNING!

I’m really trying hard to be positive today: guaranteed low traffic, behind the Christmas 8-ball, and last night I heard what is, along with the sound of an atom bomb, Nancy Pelosi’s voice, fingernails on a blackboard, and the screaming of the lambs, among the most horrible sounds in existence: that made by a fully decorated, 8-foot Christmas tree falling over….I don’t want to talk about it.

1 Leaks are unethical. What about this is so hard to understand? This story is being widely interpreted as meaning that the reassigned FBI attorney was one of the likely leakers in the agency. Lawyers leaking confidential information related to their representations is unethical, and ground for disbarment, and of course firing with cause. I hope to get to this in more detail  later, but the widespread attacks in the media on criticism from conservatives, Fox news and President Trump on the FBI is Bizarro World stuff. The FBI would have no leakers if it were professional, competent and trustworthy. None. The botched Clinton e-mail investigation and the Peter Strzok scandal are proof of deep, deep, incompetence and corruption.

2. Well, there goes Plan C! In discussing Plan J, also now on life support, I laid out the Democrats’ other nine plans to over-turn the election and overthrow the Trump Presidency by non-democratic means ( I also hope to get to this in more detail  later, but the widespread attacks in the media on statements from some conservatives and Fox News that Democrats and “the resistance,” aided by the news media, have been attempting a “coup” is Bizarro World stuff as well. The justification for the indignation is that the term coup usually implies a violent overthrow of a government, but there have been coups that were quiet, peaceful and non-violent as well. The key factor in coups is that they are illegal or extra-legal. Calling the various plans to undo a legal election too similar to a coup to ignore places what has been going on since last November in its proper, sinister perspective.

Again: Plan A was to reverse the election by hijacking the Electoral College. Plan B was pre-emptive impeachment. Plan C was the Emoluments Clause. Plan D was “collusion with Russia” (The New York Times, to give credit where it is due, actually created a chart to explain this one, and if it isn’t obvious to you how pathetically weak the case is, you played NFL football…), Plan E is”Trump is disabled because he’s a narcissist and a Republican, so this should trigger the 25th Amendment.”, Plan F, the Maxine Waters plan, is to just impeach the President because she really, really doesn’t like him, Plan G is “The President obstructs justice by firing incompetent subordinates,” Plan H is “tweeting stupid stuff is impeachable,” Plan I is “Let’s relentlessly harass him and insult him and obstruct his efforts to do his job so he snaps (see E) and does something really impeachable.” Plan J is to force Trump’s resignation based on alleged sexual misconduct that predated his candidac.

Plan C was just kicked out of court:

“Judge George B. Daniels of United States District Court in Manhattan found that the plaintiffs had failed to show that they had suffered as a result of specific actions by Mr. Trump intended to drum up business for his enterprises. . . . Beyond that, the judge found, the emoluments clauses of the Constitution are intended to protect the country against presidential corruption from foreign influences or financial incentives that might be offered by either states or the federal government. They were not meant to protect businesses from competition from presidentially owned enterprises, he ruled.”

Continue reading →

Yes, Catherine Gregory Should Be Fired

/ Jack Marshall / 34 Comments

Jonathan Turley is fascinated with the issue of whether  faculty members and employees generally should lose their jobs over controversial conduct outside of the workplace, particularly when it involves political speech. “There remains an uncertain line in what language is protected for teachers in their private lives,” the George Washington law professor writes. As I’ve discussed here before, I don’t think it’s nearly as uncertain as Turley does. When a faculty member’s conduct or statements on social media make an objective observer think, “No competent, professional institution would hire someone like this,” it’s bye-bye and don’t let the door hit you on the way out.

Even Turley seems to waver in this ridiculous case.

Conservative commentator Lucian Wintrich was about to speak on the topic “It’s OK to Be White”—I LOVE that topic!— at the University of Connecticut when a protestor grabbed his notes. He in turn tussled with her, causing a near riot, and campus police arrested him.  The protestor was Catherine Gregory, associate director of career services  at Quinebaug Valley Community College.

Today the University came to its senses (or realized public opinion wasn’t going to allow it to get away with its attempt at liberal fascism) and dropped the charges against Wintrich  while charging Gregory.

What should happen to Gregory?

Gregory’s lawyer, Jon Schoenhorn argues that his client was justified in her actions because Wintrich’s views constitute “hate speech” and his actions “are beyond the First Amendment” in their insults to minorities. This is obviously nonsense, and I would argue it even qualifies as a frivolous and dishonest defense, an ethical violation. Unless the man is complete nitwit, he must know that there is no excluded variety of speech called “hate speech” that the First Amendment doesn’t protect. He’s lying, or he’s too incompetent to be a lawyer. Continue reading →

Unethical Quote Of The Month: Detroit Attorney And Democratic Michigan AG Candidate Dana Nessel

/ Jack Marshall / 28 Comments

“Who can you trust most not to show you their penis in a professional setting? Is it the candidate who doesn’t have a penis? I’d say so.”

—-Detroit attorney Dana Nessel, a Democrat and a misandrist running for Attorney General of Michigan by suggesting that all men should be assumed to be sexual harassers and predators.

In another ad, Nessel says…

I want to tell you what you can expect me not to do. I will not sexually harass my staff, and I won’t tolerate it in your workplace either. I won’t walk around in a half-open bathrobe, and I’ll continue to take all sex crimes seriously just like I did as a prosecutor.

I wonder how feminists would react if a male candidate said,

I want to tell you what you can expect me not to do. I won’t try to influence judges to make bad rulings by wearing tight clothes and wiggling my hips. I won’t take says off because I have a period, or break down in tears under stress. I won’t try to win cases by sleeping with lawyers and judges, or not report sexual misconduct because I’ve exploited it to my own advantage.

Nessel should meet exactly the same fate as a male candidate who made those bias-promoting, sexist remarks. Continue reading →

Legal, Compliant, And Wrong: A Law Firm Helps Two California Cities Prey On Their Own Citizens

/ Jack Marshall / 18 Comments

Here’s something to be thankful for: be thankful you don’t live in Indio or Coachella California, where unscrupulous city governments and an enterprising law form conspire to fleece their citizens. It works like this:

Step One:  Indio and Coachella hire a private law firm, Silver & Wright, to prosecute citizens in criminal court for minor property violations of city ordinances. These result in small fines for infractions like not mowing the yard or selling lemonade without a business license.

Step Two: The citizens go to court, plead guilty, and pay the fines,

Step Three: They get a bill in the mail for a huge fee from the law firm that the city hired to prosecuted them. This fee is for the cost of the prosecution. Thus a fine for a couple of hundred dollars explodes into a legal bill of four or five figures.

Step Four: If the citizen objects, the law firm raises the fee demand.

Step Five: If the citizens can’t pay, the law firm threatens to take their homes.

The law firm that runs this brilliant operation is Silver & Wright, and it has been going on for years. The Desert Sun, in an investigative journalism effort, revealed this unholy alliance of municipality and law firm, and now, with public scrutiny, it just might be on its last legs. Thankfully.

The 18 cases examined by The Desert Sun come under the heading of nuisance property abatement, violations of law that are too  inconsequential to involve the county’s real prosecutors, the Riverside County District Attorney’s Office. Thus Silver & Wright steps in. Contract prosecutions are a profit center for the firm, which explains on its website that it specializes in code enforcement and “cost recovery,” boasting

“Our attorneys have developed unique and cutting edge practices to achieve success for our clients and make nuisance abatement and code enforcement cost neutral or even revenue producing.”

Indio contracted with Silver & Wright in 2014, and Coachella followed in 2015. Within a year of hiring the firm, both city councils created new nuisance property ordinances empowering the cities to seek prosecution fees without getting  approval from a judge. Then Silver & Wright started taking east valley property owners to criminal court. Continue reading →

“Hello. Yes, Once Again, I Want You To Meet Larry. You Remember That He Was A Respected Harvard Law Professor, But The Scourge Of Anti-Trump Mania Has Left Him Silly And Obsessed. Won’t You Help Sufferers Like Larry With A Generous Donation?”

/ Jack Marshall / 8 Comments

 

The steady deterioration of former Harvard Law professor Lawrence Tribe is truly a cautionary tale. Bias makes you stupid, but Larry had IQ points to spare, once.  Trump Derangement makes you stupid, and this strain of political hostility is far, far worse than the Clinton, Bush and Obama strains. Once Tribe was infected, his intellect was in peril.

Then he became addicted to Twitter. I tell my legal ethics seminar attendees that Twitter lowers a lawyer’s IQ by anywhere from 40-60 points. Once, Larry could have sustained that and still given me a good game of Scrabble. On top of his ossifying liberal bias and the ravages of Trump Derangement, however, Twitter delivered the coup de gras to his gray matter.

We saw the beginning of this in 2016, when he shattered a basic legal ethics tenet–Larry used to teach this stuff–with a mind-blowing tweet. After Trump’s election, Tribe began making silly claims that the President was impeachable,  and took to Twitter to spread batty “resistance” conspiracy theories, while calling a White House aide  “non human.”

Now it seems beyond dispute, sadly, that Lawrence Tribe is in the end throes of Anti Trump Brain Virus infection. Continue reading →

KABOOM! Roy Moore’s Lawyer Just Made My Head Explode. Or As He Would Say, Just Made My Head Exploded

/ Jack Marshall / 16 Comments

I hate early morning head explosions. Among other reasons, those bits of skull and brain ruin the taste of my coffee.

No, I don’t blame Trent Garman for representing a vile creepazoid like Roy Moore. Creepazoids have rights too, and should have access to trustworthy and competent counsel. My problem with Garman arises from those last four words. Lawyers as untrustworthy and incompetent as Garman, in my opinion (don’t sue me, Trent, it’s just my opinion that you’re an idiot; I can’t prove it, but I do think you did), shouldn’t be representing clients. Garman, in truth, needs to go back to the sixth grade.

Here is the letter Garman authored on Moore’s behalf. I’ll follow it with the stuff that blew my head; you don’t have to read the whole thing unless you’re into inflicting pain on yourself, like that albino monk in “The Da Vinci Code.”

If you do read the letter, you will note that Attorney Garman never learned that the possessive “its” has no apostrophe, and that he writes English like it is a second, and perhaps third, language. Here are the best, as in worst, examples of his professional writing:

 Your client’s organization has made and/or supported defaming statements. This is due to the careless and/or intentionally refused to advance the truth regarding our clients. We also believe that your client, by and through its agents, have damaged our clients by being careless in how they handle headlines and report the contextual of the allegations.

The second statement  actually says “This is due to the careless and/or intentionally refused to advance the truth regarding our clients.” Diagram that for me. That head-scratcher is followed by “We also believe that your client, by and through its agents, have damaged our clients by being careless in how they handle headlines and report the contextual of the allegations.”This isn’t even the worst example of Authentic Frontier Gibberish in the letter. This is:

Thus, do you know this clearly, yet significant difference which your client’s publication(s) have failed to distinguish. And the legal requirement that your client retract the stories, to include the details which clearly are false.

I can’t even decide what to bold on that one.

Disturbingly, we learn in Trent’s biography that he earned a Masters in Theology from Regent University and  translated two books of the Bible from Greek.  I can just imagine what that translation was like.

I’m not nit-picking a blog comment or a hasty tweet. Roy Moore is fighting for his professional life and reputation, and this is the best legal representation he can find? That letter is a professional product. Garrman is obligated to be competent and diligent, not to send the message far and wide that the former judge thinks that this is persuasive logic and deft prose. Do they not proofread at Garman & Liddon? Do they know what proof-reading is? Do they know what syntax, punctuation and grammar are? Coherence? Professionalism?

Shame on the Troy University and Birmingham School of Law for graduating this careless, inarticulate boob. Heck, no high school should graduate someone who can’t write a letter better than that. Shame on his high school too. Shame on his the Alabama Bar for giving him a license.(I would use words other than “shame,” just to reliev the monotony , but as I’m sure you understand, my vocabulary is affected when my brains are on the ceiling…)

The legal field’s dirty little secret is that lawyers who can’t write or articulate a coherent argument are not as rare as they should be, and they should be extinct.  Nonetheless they get fees from innocent clients who assume that these hacks are smart and skilled because they call themselves lawyers.

But Roy Moore called himself a judge, didn’t he?

Hmmmm…

Maybe this is what George Will calls “condign justice.”

______________________

Pointer: Red Ipsa Loquitur

 

Morning Ethics Warm-Up, 11/16/17: Keeping the Public Ignorant About Unethical Lawyers, Sugar Lies, And A Terrible Trump Tweet…

/ Jack Marshall / 27 Comments

Good Morning, John!

Sing us into the first item, would you?

1 “Is anybody there? Does anybody care?” Everywhere I go, lawyers are talking about the David Boies scandal, which I wrote about here. I haven’t seen much media discussion about it at all. We have now seen one prominent hack lawyer, Lisa Bloom, and one prominent, skilled and respected lawyer, Boies, demonstrate high profile professional conduct that should receive serious sanctions from their profession, and it appears that most of the public and the media neither knows this nor cares.

Bloom is just a venal, incompetent, bad lawyer. The real crisis is when top lawyers blithely engage in wildly unethical conduct in a high profile case, but I doubt the public sees the difference. Very little commentary on Boies’s betrayal of the New York Times  focused on the throbbing black-letter ethics violation involved.  Today, a front page story in the New York Times about Black Cube, the sinister investigative crew hired by Boies to gather dirt on the Times before it blew the whistle on Harvey Weinstein completely missed this crucial element of the story. It also makes it near-certain that no one will read the report who need to know how poorly legal ethics are enforced.

Here’s the headline in the print edition: “Sleuths for Weinstein Push Tradecraft Limits.”  Tradecraft? Online: “Deception and Ruses Fill the Toolkit of Investigators Used by Weinstein.” Nowhere in the article are readers informed that lawyers are forbidden, without exception, from using any contractor that regularly uses deception.

Here is the kind of thing Black Cube specializes in, from the Times piece:

“Earlier this month, a former hedge fund employee was flown from Hong Kong to London for a job interview. Around the same time, a current employee of the same Toronto hedge fund was also flown to London for interviews. The company courting them was fake. Its website was fake. There were no jobs to be had, and the woman who set up the interviews was not a recruiter but an agent working for an Israeli private investigative firm.

This was not an episode of “Homeland” or the latest “Mission: Impossible” installment. Interviews and court papers show that these deceptions were part of a sophisticated and expensive investigative operation. The objective, according to one filing, was to gather proprietary information held by the hedge fund. The agent worked for Black Cube.”

Every single jurisdiction in the United States declares in its legal ethics rules, usually in the rule about misconduct, 8.4 (bolding mine):

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

…

(c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…

How much clearer can it be? It is unethical for a lawyer to employ someone or an organization that he or she knows routinely and reliably engages in “dishonesty, fraud, deceit, or misrepresentation.” Yet that’s the only reason anyone hires Black Cube. Conclusion: Boies breached a major ethics requirement, perhaps the most serious one there is. And why?  Because a client paid him to. Continue reading →

Ethics Quote Of The Week: The New York Times, Regarding Legal Ethics Dunce David Boies’s Ride On The Harvey Weinstein Ethics Train Wreck

/ Jack Marshall / 27 Comments

There are a lot of ethics issues, legal and otherwise, flying around in the shocking—this really is shocking—revelation that lawyer Al Gore’s Supreme Court lawyer (and loser) David Boies was working to help Harvey Weinstein intimidate and discredit the women who were preparing to accuse him of sexual harassment, sexual assault, and rape.

The New Yorker reports in an investigative reporting piece that the Boies firm was retained by Weinstein, and on his behalf hired Black Cube, an investigative company run by former Israeli intelligence agents to prevent the publication of abuse allegations by creating profiles on the targeted accusers, often using pretexting–that is, lies— to gain access to proprietary information. Black Cube’s work included psychological profiles and sexual histories of the potential Weinstein accusers. The engagement with Black Cube  was presumably run through Boies Schiller Flexner  to place the shady matter under attorney-client privilege.

David Boies personally signed the contract with Black Cube, which, according to the New Yorker, was to obtain ” intelligence which will help the Client’s—that is, Weinstein’s— efforts to completely stop the publication of a new negative article in a leading NY newspaper” and to “obtain additional content of a book currently being written [that] includes harmful negative information on and about the Client.”

Did you see “Michel Clayton,” where George Clooney played a law firm’s “fixer”? That’s what Boies was doing here. “Fixing.” And fixing is a dirty business.

That “leading NY newspaper” was and is the New York Times, which, as we now know, was readying its own sensational story regarding the accusations against Weinstein.The New York Times was also a client of Boies Schiller Flexner, though on unrelated matters, hence the statement above. Unsurprisingly, the Times has sacked Boies and his boys.

[Aside: Here’s a lawyer ethics practice tip. If a client asks you to contract with a company called “Black Cube,” “CHAOS,’ “The Legion of Evil,” “The Black Hand,” or “Murder, Inc.”, just say no.]

Some ethics questions and answers: Continue reading →

Morning Ethics Warm-Up, 10/25/17: The Clinton Campaign’s Russian Dossier Connection, Her Lying Lawyer, And Jeff Flake

/ Jack Marshall / 33 Comments

GOOD MORNING!

1 I have long been an admirer of Arizona Senator Jeff Flake, who is one of the few members of Congress, more’s the pity, who will stick to his principles even when they pit him against his own party. However, his freak-out and verbal attack on President Trump accomplish nothing positive (unless you consider making Democrats happy positive) and  at this point constitute pure self-indulgence and, yes, these words are coming up a lot lately, virtue-signalling and grandstanding. I have no sympathy for Flake, Senator Corker, or any other Republican leaders who stood by and allowed Donald Trump to hijack their party. The time for Flake to take a stand was last March, or even earlier. Ethics Alarms stated that the GOP shouldn’t have let Trump into the debates or on its ballot. I said that he should have been kicked out of the debates when he began trashing the party, and when he  became disgustingly boorish and uncivil. I explained that it could have and should have refused to nominate him by changing the rules. The party had a duty to the country to present a competent, trustworthy alternative to the corrupt, venal, dishonest candidate the Democrats were going to nominate: everyone knew who that would be. Instead, the GOP sold its soul. Jeff Flake now says that Trump is reckless, outrageous and undignified? Who didn’t know that? I assume the President’s  voters knew that. On Ethics Alarms, I wrote about those Trump character traits in 2011.

It is particularly galling for me to read Flake’s attack on Trump in the Washington Post today, which begins, “As I contemplate the Trump presidency, I cannot help but think of Joseph Welch.” In fact, it makes me want to scream helplessly at the sky. In this Ethics Alarms post, I invoked Welch’s famous televised slap-down of Joe McCarthy before the first Republican candidates debate, and concluded “If someone doesn’t at least try it, none of these 15 non-Trumps are smart enough to be President.” I wrote that on September 16, 2015. 

Senator Flake is like a Senator  going to Honolulu in December of 1942 and proclaiming that the Japanese can’t be trusted. He deserves no sympathy or support now.

He should have been reading Ethics Alarms.

UPDATE: My friend and frequent ProEthics collaborator Mike Messer called this “flake news.”

2. I haven’t had time to thoroughly unravel what yesterday’s revelation that Hillary Clinton’s campaign funded what became the infamous “Russian dossier” means. A couple of points, however, Continue reading →