legal ethics

Morning Ethics Warm-Up, 3/23/18: The All-Disposable Edition…Legal Ethics, Budgets, And Grocery Bags

/ Jack Marshall / 10 Comments

Good Morning…

1. More Professionals Behaving Badly: The news media has widely reported that Ted Olson of the law firm Gibson Dunn refused Donald Trump’s request for his legal services. Olson, who is best know for arguing  the Bush side of Bush v. Gore that ended the 2000 Florida recount,  had declined to comment on this to the media but a partner in the firm Gibson Dunn’s “global co-chair” issued a tweet that Olson was not going to be representing the President. This is a straight-up violation of an attorney’s ethical duty  of confidentiality to a prospective client.

In other Trump lawyer news, the media is also widely reporting that John Dowd resigned from the President’s legal team over the President’s refusal to accept Dowd’s advice that he not agree to give testimony to the Special Prosecutor. Telling the news media that—telling anyone that—would also be a breach of confidentiality on Dowd’s part.

2. Per se legislative incompetence. Once again the Senate and the House passed a huge bill with massive implications and consequences without reading it. The legislation funds the federal government for the remainder of the 2018 budget year, through Sept. 30, directing $700 billion toward the military and $591 billion to domestic agencies. The military spending is a $66 billion increase over the 2017 level, and the non-defense spending is $52 billion more than last year. It also further explodes the deficit and the debt that bring the United States one step closer to a ruinous financial reckoning. The Democrats have been happily on this path for the entire 8 years of the Obama administration, but the Republicans rode to power in part because the public recognizes how insane this is. The GOP couldn’t even muster a cut in the arts spending that it has been promising since the Reagan administration, or to finally cut ties with public television, though Big Bird fled the nest years ago. Continue reading →

Now THIS Is An Unethical Judge!

/ Jack Marshall / 13 Comments

I don’t know what’s happening to judges’ judgment  lately, but it’s not good.

Texas State District Judge George Gallagher was annoyed by defendant Terry Lee Morris’s refusal to answer his questions and making various statements himself, so he ordered that Morris have a stun belt strapped around his legs. From the Appeals Court opinion:

“Mr. Morris, I am giving you one warning,” Gallagher told Morris outside the presence of the jury. “You will not make any additional outbursts like that, because two things will happen. Number 1, I will either remove you from the courtroom or I will use the shock belt on you.”

“All right, sir,” Morris said.

The judge continued: “Now, are you going to follow the rules?”

“Sir, I’ve asked you to recuse yourself,” said Morris.

Gallagher asked again: “Are you going to follow the rules?”

“I have a lawsuit pending against you,” responded Morris.

“Hit him,” Gallagher said to the bailiff.

The bailiff pressed the button that shocks Morris, and then Gallagher asked him again whether he is going to behave. Morris told Gallagher he had a history of mental illness.

“Hit him again,” the judge ordered.

Morris protested that he was being “tortured” just for seeking the recusal.

Gallagher asked the bailiff, “Would you hit him again?”

Each “hit” sent an eight-second, 50,000-volt shock into Morris. Judge Gallagher had Morris shocked three times. It terrified Morris sufficiently that he didn’t return for the remainder of his trial and missed almost all of his sentencing hearing. Continue reading →

Tales Of The King’s Pass: The Rainmakers

/ Jack Marshall / 21 Comments

Are you also an asshole? Because if you’re enough of a rainmaker, you can be as big an asshole as you want!!!!

Wow. You don’t get much more cynical than this.

Here’ s Karen Kaplowitz, the founder of The New Ellis Group, and a business development strategist and coach for over 20 years, essentially denying the existence of ethics and integrity in law firms as a business necessity.  In a piece on the ABA Journal titled Abuse of power within law firms: The rainmaker dilemma, she begins,

Despite their obvious economic value to their organizations, Bill O’Reilly, Matt Lauer and Harvey Weinstein were quickly sacked. Law firms by contrast have often tolerated bad actors who are major rainmakers. Can law firms tolerate abusive rainmakers in the current business climate? Do firms need to be more aggressive about confronting abuses of power?

Can they tolerate abusive rainmakers, in this or any other business climate? Sure they can. Should they? Absolutely not. “Do firms need to be more aggressive about confronting abuses of power?” What? Does this question have to be asked?

Kaplowitz goes on..
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Morning Ethics Warm-Up, “Happy Birthday George Washington!” Edition

/ Jack Marshall / 57 Comments

Good Morning!

1 The Indispensable Man...This is George Washington’s birthday, and every American alive and dead owes him an unmatched debt of gratitude. A useful assessment of why this is true can be found here.

Not only was Washington indispensable as the military leader who won the Revolution, he was also, it seems likely, the only human being who could have navigated the impossibly difficult job of being the first President of a new nation attempting an unprecedented experiment in democracy. The precedents he set by his remarkable judgment, presence, wisdom, character and restraint continue to be a force today. Washington was also perhaps the most ethical man who has ever been President. The principles that guided him from his youth and that resulted in his being the only man trusted by the brilliant but often ruthless Founders who chose him to lead their new country can be reviewed here, but two of them tell us what we need to know about Washington’s ideals…the first,

Every action done in company ought to be with some sign of respect to those that are present.

…and the last,

 Labor to keep alive in your breast that little spark of celestial fire called conscience.

Revoltingly, the average American is largely ignorant regarding the great man whose face adorns the one dollar bill. For example,  a recent YouGov survey asked respondents who was the best President in U.S. history. 16% of Americans selected Ronald Reagan, and 16% selected Barack Obama. Abraham Lincoln took third place with 15%. Washington finished fourth,but only 10% of those surveyed named him as the best President,  14 percent of Republicans, and only six percent of Democrats. I assume that Reagan, and I hope even Obama, would find these results ridiculous. They tell us that citizens can not distinguish politics from virtue. They tell us that the schools teach neither history nor critical thought effectively. They tell us that Democrats regard the fact that Washington was a slaveholder more notable than the fact that he made the United States possible. They tell us that the nation is losing a connection to its origins, heroes and values. It tells us that most of the public is ignorant of things that competent citizens must know.

It tells me that when an advocate cites a poll that says, “Americans want this,” the proper response is “Why should anyone trust their judgment? They think Regan and Obama were better Presidents than George Washington.”

2. Children’s Crusade update: Both CNN and HLN are flogging the high school student protests virtually to the exclusion of any thing else. The total commitment to aggressive and emotional advocacy on the part of the mainstream news media was disgraceful after the Sandy Hook school shooting, but this is worse; just when I think our journalism has hit the bottom, it finds a way to go lower.

This morning on HLN, I was greeted by an extremely articulate Marjory Stoneman Douglas High School survivor who said,  confidently and radiating certitude, “These episodes are completely preventable.” Putting such nonsense on the air, even when spoken by an attractive, sympathetic, youthful idealist who perhaps cannot be blamed for not knowing what the hell she’s talking about,is irresponsible and incompetent. It is no different from saying “The Holocaust never happened,” Barack Obama was born in Kenya” or “The world is ruled by the Illuminati.” “These episodes are completely preventable” is, from the mouth of anyone qualified to be on television talking about gun policy, a lie, and from someone like this young woman, as naive as professing a belief in Santa Claus. Such statements should not be presented in a news forum as a substantive or serious position. A news organization has an ethical obligation either to correct the misinformation, or not to broadcast it without context, like “Here is the kind of arguments these child activists are making, making serious and coherent debate impossible.”

When the crawl across the bottom of my screen added another argument from one of the activist students—has there ever been a time when the policy analysis of people lacking high school diplomas has ever been given so much media attention and credibility?—that read, “Student protester: “People are buying guns who don’t need them,” I switched to the Cartoon Network

Right, kid, let’s pass laws that prohibit citizens from buying what the government decides they don’t need.

Continue reading →

Afternoon Ethics Warm-Up, 2/17/18: Mueller And A Movie

/ Jack Marshall / 71 Comments

Good afternoon..

1 Well, we have some exit poll results…on my integrity and denial question in the Mueller indictment post I started at 4 am, hence the late Warm-up. Based on the comments so far, I am going to be disappointed: the “Trump is guilty of something” crowd is, so far, arguing that an indictment statement including  “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity. There is no allegation in the indictment that the charged conduct altered the outcome of the 2016 election” means that the President’s election was illegitimate and that he is guilty of wrongdoing. We also have such jaw-dropping moments as a commenter praising the Mueller investigation for not leaking the indictments beforehand—wow. Leaks are unethical, and when a grand jury is involved, illegal. The leaking from the Mueller investigation and the Justice Department have been a national disgrace, and we are now at the point when government lawyers not breaking the law is deemed worthy of praise in some quarters.

Of course, we don’t know what was leaked. Since leaking grand jury testimony is so serious and always sparks its own investigation, I wouldn’t bet against reporters having been tipped off, but using the advance notice to prepare their “Trump’s still guilty!” responses.

A better example could not be found of how the the news media and the intentionally divisive partisan rhetoric of the past decade have caused a fracture in the ability of Americans to perceive facts unfiltered by confirmation bias. I find this disheartening. But exit polls are not always accurate…

2. An unexpected take on the indictments. Eccentric conservative blogger Da Tech Guy  had some interesting observations:

“Section 1 and section 24 notes that it’s against US law for “certain foreign nationals” to enter the US without a visa providing truthful and accurate information to the government. Apparently these laws don’t apply to dreamers and those who brought them…section 41 talks about identity theft including social security numbers; again, this could be a charge against the DACA kids…Section 85 completes the list, the illegality here is that they pretended to be Americans and didn’t register as foreign agents while doing activities that if done by Americans would be completely legal…Does that mean that DACA folks and illegals who have held political rallies will be indicted next?…Section 89-95 on count 2 and section 96 again notes identity theft and moving money via such theft., boy this could be an indictment of the illegal alien DACA crowd if they wanted. But they don’t.”

3. Ethics movie review! I watched Denzel Washington’s “Roman J. Israel, Esq.” twice last week, in part because it is a legal ethics movie, and in part because Washington’s portrayal of an idealistic autism-spectrum civil rights attorney whose ethics alarms get corrupted is so unusual for him. I’ll basically pay to watch Denzel play canasta. Continue reading →

The Michigan High School Ethics Bowl

/ Jack Marshall / 13 Comments

More than 100 high school students from across lower Michigan will gather February 17-18 at the University of Michigan for the fifth annual Michigan High School Ethics Bowl. The winner  will represent Michigan in the National High School Ethics Bowl held at the University of North Carolina at Chapel Hill in April. The Ethics Bowl is organized by A2Ethics, the University of Michigan  Department of Philosophy Outreach Program and the high school faculty coaches in the High School Ethics Bowl League. During the two-day competition, judges  evaluate teams’ responses to case studies written by local community members.

See? There is hope!

Here are the case studies the students will analyze, fifteen of them. I may do posts on a few of them suggestions are welcome. One of them, #2, I have discussed in several legal ethics seminars:

The Michigan Rules of Professional Conduct forbid lawyers from revealing information received in confidence (information protected by the “lawyer-client privilege” of a client), and similarly from using that confidential information for the advantage of a third person, unless the client consents.

You are a lawyer whose practice is focused almost exclusively on criminal defense. You have been active in the criminal defense bar association for several years, and you represent criminal defendants at both the trial and appellate (appeals court) levels.

One of your clients, Gilbert, age forty, is in prison for murdering a woman named Alice. You represent Gilbert in the appeal of his conviction and life-without-parole sentence. During confidential meetings with Gilbert, he confesses to you that he also murdered Bob, and he acted alone when he did. Although you were not involved with the case of Bob’s murder, you are somewhat familiar with it and know that a man named Enrique was convicted of Bob’s murder and is consequently serving a sentence of life without parole. Enrique’s conviction and sentence were recently reaffirmed after a thorough, years-long appeals process. Unless new evidence comes to light, he will not be able to appeal again.

After you are unsuccessful in challenging Gilbert’s conviction and sentence for Alice’s murder, you speak with him about Bob’s murder. He repeats his confession, this time in more detail, but refuses to consent to your request to reveal the confession on Enrique’s behalf.

Continue reading →

A Vermont State’s Attorney Prosecuted A College Student For An Overheard Phone Call. Why Is She Still Employed?

/ Jack Marshall / 18 Comments

In October of last year, police charged Wesley Richter, a University of Vermont continuing education student, with disorderly conduct after university officials said he used “explicitly racist and threatening language” against black students and diversity initiatives on campus. Richter was overheard in a phone call with his mother, though exactly what Richter allegedly said has not been made public.unknown. Of course, what he said doesn’t matter, unless he was planning a crime, which he was not. He was talking to his mother, and a student who overheard the discussion took offense at what was said. Richter, through his lawyer, denied saying anything racist, but again, it doesn’t matter. Saying racist things in a phone conversation cannot be a crime. It’s bad manners. It’s disrespectful to those listening. A school may be able to justly find some kind of violation to a reasonable and neutral civility code involving words but not content. But an overheard phone conversation cannot be a crime. It is mere words.

Nevertheless, the University of Vermont, the University of Vermont Police Department and the Chittenden (County) state’s attorney’s office in the person of Sarah George, the State’s Attorney, prosecuted the case against Richter. George is a graduate of the University of Vermont Law School, where presumably they taught constitutional law. There is no excuse for this.

Richter’s lawyer, Ben Luna, argued that George didn’t have probable cause to bring the misdemeanor charge, and Superior Court Judge David Fenster agreed. In a statement, Luna called the dismissal a victory for free speech and the First Amendment. “The court’s ruling reinforces my opinion that this matter should never have been brought,” he said.

The court’s ruling also reinforces my opinion that Sarah George should be disciplined by the bar and fired.

Right at the start, Vermont’s Rule 3.8, as in every other state, makes it clear that prosecutors must not charge anyone with a crime without probable cause:

Rule 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

The Comments to the rule say in part,

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.

The First Amendment makes it beyond argument that the government may not punish or seek to punish citizens for the content of their speech. Since the only evidence that George had that a misdemeanor had been committed was a third party complaint about the content of Richter’s speech in a conversation over the phone with his mother, she did not have legal or sufficient evidence to charge or prosecute Richter. As a lawyer and a prosecutor she had to know that. If she knew it, she was knowingly abusing her power, and should be suspended from the practice of law.

If she didn’t know it, then she is incompetent and not fit to practice. She should be fired.

Incredibly, George said she thought the case was strong, but that it was also “a learning experience.” “It’s disappointing, but it’s also good for us to know. It’s a really great decision for us in terms of case law and reasoning, so we know now what this court expects of us,” George said.

Yeah, the court expects you to follow the Constitution. If you have to learn that at this late stage in your legal career, Sarah, you need to go back to the drawing board. Maybe you can sell maple syrup.

She wasn’t through. “What we allege he did, we still allege he did,” she continued.  “It just didn’t rise to the level of a hate crime.”

A phone conversation cannot be a “hate crime.” Speech cannot be a hate crime. “Hate speech” is not a legal designation.

Why is this woman a state prosecutor? Fire her.

If she is not fired, then this totalitarian, illegal, abusive and intimidating prosecution chills free speech, not just on the University of Vermont campus, but in the whole state. A citizen should not have to wait two months, as Richter did, for a judge to declare that the state cannot persecute him for what he is overheard saying, whatever it is.

Fire

Her. Continue reading →

Morning Ethics Warm-Up, 1/4/2018: A Frivolous Lawsuit, An Unscripted Actress, A Lesson In Assuming, And Fake News

/ Jack Marshall / 20 Comments

Good Morning!

1 On feminist integrity. The reader poll on the post about the interesting silence of US women’s rights organizations and their component feminists as their Iranian sisters protest oppression in Iran has already had more participation that the last four Ethics Alarms polls combined. Why is that? In more news related to that post, some determined spinners here claimed that the feminists have been burning up the blogs and websites with supportive essays and blog posts, so the radio silence is a myth. No, THAT was a myth: there is nothing on those sites, or if there is, it didn’t surface when I checked Ms., Jezebel, NOW and four prominent blogs. (Update: Reader Humble Talent has checked two more. Also nothing.)

Please don’t make up stuff or assume facts you haven’t checked when you don’t want to accept reality, friends. It’s not fair, and it’s not ethical debating practice. Because I trust and respect the commenter in question, I just assumed she was right, because I assumed she had checked. No, it appears she had assumed, and was not right.  And you know what Felix Unger proved happens when you assume..

2. This is why they give actors scripts. I enjoy actress Meryl Streep as an artist, but for me she is fast entering Alec Baldwin territory, a performer whose personal character deficits are becoming so overpowering that even her undeniable talent can’t make watching the performer on screen endurable. Streep is in a deep hole she keeps digging. Being a Harvey Weinstein acolyte and beneficiary for years (and a Roman Polanski apologist), she is denying culpability as an enabler of his serial sexual predation because, she says, she didn’t know. Almost nobody finds her denial credible. Yesterday the Times published a joint interview with Streep and her “The Post” co-star, Tom Hanks. Told by the interviewer that in light of the doubts about what she knew, the public wants to hear more from her, she responded,

“I don’t want to hear about the silence of me. I want to hear about the silence of Melania Trump. I want to hear from her. She has so much that’s valuable to say. And so does Ivanka. I want her to speak now.”

Streep locks up the 2018 Whataboutism of the Year title with that one, along with adding a ridiculous sentence into my personal collection of statements that deserve note because they had never been said before in the history of the English language. I started my collection decades ago at a family Thanksgiving dinner, when my sister said, “You know, the fish looks so good, I think I’ll wear my bra on my head.” And a collection was born.

“I don’t want to hear about the silence of me” has an elegant simplicity about it. In addition to being a strange sentiment, Streep also misses the whole concept of an interview—surprising, since she has done so many of them. See, Meryl, these questions are about what the public wants to hear about, not what you want to hear about. Was that really unclear to you until now? This was not an open invitation to announce all the things you’d like to hear about that have absolutely nothing to do with Harvey Weinstein. This is “Look! Squirrel!” carried to a demented extreme. Streep revealed herself as seriously Trump Deranged, as she thinks that the way out of every personal crisis is to declare, “But what about TRUMP????”

Looks like I won’t be watching “The River Wild” again. Pity. (I won’t watch “The Dear Hunter” again either, but then you never could have made me watch that thing a second time, not under torture or extortion.)

3. Now THIS is a frivolous law suit.  From CNN:
Continue reading →

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 →