2017: A Rude Librarian, Another Incoherent Knee, I Need To Start Listening To My Own Lectures, And Did YOU Know That “Green Eggs And Ham” Was Racist?

September 29, 2017September 29, 2017 / Jack Marshall / 79 Comments

Good Morning!

1 In the middle of yesterday’s continuing legal education seminar on technology and legal ethics, I was telling the attendees about the dangers of all things Google. As I was explaining why lawyers should never, never do legal business on a gmail account, I added that they also have an obligation to tell their clients that there is not a sufficient expectation of privacy when they use gmail to communicate with their attorney. Then I literally froze and stared into space.

“I just realized that one of my recent consulting clients, a lawyer, has been sending all of his communications and documents to me using gmail,” I said. I had noticed it, but it still didn’t trigger the response that I have been teaching to others for at least three years.

As a wise man once said, “D’oh!”

2. In the “I can keep it up as long as they can” category: There is now a viral photo of some idiot taking a kneel during Taps at the Tomb of the Unknown Soldier.

Continue reading →

Morning Ethics Warm-Up, 9/11/17: Irma and Climate Change Hype; Democrats And Anti-Catholic Hypocrisy

September 11, 2017September 11, 2017 / Jack Marshall / 122 Comments

Good Morning!

1 I’m in Boston to address a group of new admittees to the Massachusetts bar today.

2. Broadcast journalists were surprisingly restrained with Harvey, but the second major hurricane in less than two weeks is apparently too much for them, as it is for other climate change shills on social media and elsewhere (I’m looking at YOU, Jennifer Lawrence…which, I admit, isn’t all that unpleasant…)

Thus I am hearing (and reading) more and more claims that Hurricane Irma on top of Hurricane Harvey is the result of the nation’s failure to aggressively limit carbon emissions…as if two (or more) big storms in hurricane season is unprecedented, and didn’t, in fact, occur far more frequently when Al Gore was knee-high to a grasshopper. What does the cynical use of the 2017 storms as propaganda for the gullible and weak-minded tell us?

It tells us that the journalists don’t know beans about climate, weather and the science of global warming. It shows us that they are willing to mislead the public out of dishonesty, bias or incompetence, by spreading what amounts to junk science regarding an important policy issue. It tells us that they can’t resist using their position as reporters to boost what is for them a political agenda, for not one of them has first hand knowledge or genuine expertise regarding whether the earth is warming, how much, for how long, to what effect, and what will actually slow it down, and very, very few of them could explain a climate change model if their lives depended on it.

Finally, it tells us they are stupid. Every time it becomes obvious that the news media, elected officials and others are hyping this issue by using weather as an argument that climate change is occurring, they make skeptics more skeptical, and justly so. When advocates and activists resort to phony arguments and fake facts, it is fair to assume that they don’t have sufficiently persuasive actual facts, and that they cannot be trusted not to cheat to get their way. Continue reading →

Morning Ethics Warm-Up: 8/26/17

August 26, 2017 / Jack Marshall / 17 Comments

Good Morning!

(My Dad was from Kentucky. He couldn’t stand Tom T. Hall…or Mitch McConnell)

1. I have been working on a legal ethics seminar for lawyers who represent seniors (I was told that the politically correct term among the groups was “older clients.” Older than what?) It is one of those areas of the law in which the usual ethics rules don’t work very well, or sometimes not at all. This anomaly requires a lawyer practicing in the field to be ready to embrace the Ethics Incompleteness Principle: to violate the letter of the professional ethics rules in the best interests of the client. For example, what does a lawyer do whose aging client lives with a son or daughter, and the lawyers sees signs of elder abuse? When the lawyer asks the client, he makes various excuses for his caretakers, and finally says that while he has been abused, it’s not serious and will only get worse if the lawyer says or does anything in response to it. Now what? The fact of the abuse, under the usual construction of the rules, is a confidence controlled by the client.

The emerging consensus is that the lawyer can ethically use the exception to confidentiality that allows an attorney to reveal a client confidence to prevent death or serious bodily injury to a “third party,” the client becoming “the third party” for his own protection.

2. A federal lawsuit was filed last week alleging that a Tennessee judge and sheriff violated inmates’ constitutional rights by instituting a program offering reduced jail time for criminals who agree to undergo vasectomies or get contraceptive implants. The suit claims the White County program amounted to “eugenics with a twist.” I don’t think it’s much of a twist; I’d say it’s eugenics, straight up. I’d assume CBS will love it: after all, eliminating criminal types is even better than eradicating Down Syndrome babies. Isn’t it?

3. Lots of people sent me this horrible story, about the cheerleader camp at a Denver area high school where young girls were being forced to do splits (it hurts me even thinking about doing splits) , with the camp’s instructor shown in a leaked video pushing down on the shoulders of a 13-year-old as she screamed for him to stop.

Boy, there is a lot of child abuse out there.

The Denver Board of Education said in a statement: “As the elected representatives for Denver Public Schools — and as the moms, dads and family members of D.P.S. students ourselves — we are deeply disturbed by the videos of cheer practices at East High School that came to our attention yesterday.”

Gee, it’s good to know that you are all disturbed that children are being tortured at schools that you are supposed to be overseeing.. This must mean you are competently doing your jobs. No, actually it doesn’t

“As the investigation continues,’’ it states, “our focus must be entirely on our students, families and educators.”

The school superintendent also said: “We have sent notification to our athletic directors emphasizing that D.P.S. does not allow the use of ‘forced splits’ or any other activity that puts a student’s physical or mental health at risk, or in which a student is forced to perform an exercise beyond the point at which they express their desire to stop.”

An Ethics Alarms note to that school system: Any athletic directors who have to be reminded that abusing children in their care, and continuing to make them perform painful acts after they have said that they don’t want to, is not something they should be doing shouldn’t be employed in the first place. Continue reading →

Morning Ethics Warm-Up: 8/15/2017

August 15, 2017 / Jack Marshall / 21 Comments

Gooood Morning, Ethics Alarms!

1. And the grandstanding goes on. CNN’s HLN repeatedly played the Tonight Show’s Jimmy Fallon’s undoubtedly heartfelt and gratuitous “very special episode” where he condemned racism and bigotry and saluted the victim of the vehicle attack by James Fields, saying that she was standing up for “what was right.” I’m sure she thought she was. She was, however, in a group that stood for the suppression of free speech and political views they have decided don’t deserve First Amendment protection. That is NOT “right.”

Shut up and be funny, Jimmy. You haven’t been given that show to make half-baked and ignorant political pronouncements, That’s Stephen Colbert’s job.

2. The President came out yesterday with an unequivocal condemnation of racism, bigotry, violence and white nationalism. The Times headline today notes this, but that “some say it was too late.” Of course “some” do. And besides, says my allegedly rational liberal former Democratic Congressman staffer Facebook friend, it is obvious what he really believes. And besides, even if his statement hadn’t been too late, there were “dog whistles” in it, and his body language was suspicious.

I have to keep reminding myself that these people are ill, in the grip of a powerful mob mentality and to “hate the sin, never the sinner,” as Clarence Darrow said (but probably didn’t believe).

3. Related: from Investor News Daily, via Instapundit:

“Obama never mentioned the anti-cop sentiment fomented by Black Lives Matter — with an assist from Obama himself — in his brief statement after five police officers were assassinated in Dallas. Obama did find room in those remarks to mention racist cops. Did anyone on the left complain?”

Wait—is it too late for Obama to condemn anti-white racism now? Continue reading →

Morning Ethics Warm-Up: 8/1/17

August 1, 2017August 1, 2017 / Jack Marshall / 49 Comments

Good Morning, World!

1. Follow-Up on the 7/28 morning post: Sometimes a popular public figure’s words and conduct so obviously show a deficit of character that I wonder if those who admire him or her are not paying attention, or are creeps themselves. “Harry Potter” author J.K. Rowling is officially in this category. First, I do not care for foreigners who obsessively bash our leaders, however bashable. They don’t have standing, in most cases, and their opinions are by definition uninformed if they don’t live here. Most obnoxious of all, however, in Rowling’s case, was her indefensible conduct regarding her recent infamous fake news tweet that circulated to her mob of followers a deceptively edited video showing President Trump cruelly ignoring a boy in a wheelchair, when he in fact stopped, crouched, and spoke to the child. She did this (“When someone shows you who they are, believe them.’ – Maya Angelou” was the snotty accompanying comment) on July 28, and the same day it was widely debunked, with the actual video being circulated on the web. No response came from Rowling, even as her tweet and libel continued to be liked and retweeted by “the resistance.”

On July 30, even CNN’s Brian Stelter, with extra time on his hands because his alleged news media ethics show avoids criticizing bias in the news media, flagged the bad tweet, and asked why Rowling hadn’t retracted it. Come on, Brian, you know why! It is for the same reason CNN continues to use unethical journalism to attack the President: they don’t believe he’s worthy of fairness or honesty.

Finally, after various conservatives dredged up this year-old tweet from Rowling to show her hypocrisy and shame her with her own chosen words…

…and after left-wing, fellow Brit Trump-basher Piers Morgan expressed frustration with her, and after PunditFact, a spin-off of PolitiFact, rated Rowling’s claim “Pants on Fire,” and after the boy’s mother herself denied that Rowling’s version occurred, the author finally retracted the tweet and took it down. She also tweeted this unethical apology:

Re: my tweets about the small boy in a wheelchair whose proferred hand the president appeared to ignore in press footage, multiple sources have informed me that that was not a full or accurate representation of their interaction. I very clearly projected my own sensitivities around the issue of disabled people being overlooked or ignored onto the images I saw and if that caused any distress to that boy or his family, I apologise unreservedly. These tweets will remain, but I will delete the previous ones on the subject.

This is a miserable apology, containing the stinking tell of the non-apology apology, “if anyone was offended” in this case the equivalent “if that caused any distress.” The two people she non-apologizes to had no reason to be “distressed,’ since the tweet wasn’t an attack on them. This is not an apology at all, since it does not apologize ..

…to the person fraudulently attacked, President Trump, as well as his family and supporters

…to those deceived by her retweeted lie, and

…to the people who trusted her and became accessories in the false attack

…for taking four days to take down a lie that had been thoroughly exposes as one.

On the Ethics Alarms Apology Scale, it is a bottom of the barrel #10:

An insincere and dishonest apology designed to allow the wrongdoer to escape accountability cheaply, and to deceive his or her victims into forgiveness and trust, so they are vulnerable to future wrongdoing.

This rot is actually worse than a #10, as Rowling dares to ladle soppy virtue-signalling onto it. She only falsely attacked the President of the United States and spread a lie around the world because she is so, so sensitive and concerned about the treatment of handicapped people! Don’t you understand? It’s because she’s so compassionate and good that this happened!

It is my experience that good people can usually manage a sincere and remorseful apology to those harmed by their words or conduct.

2. This unethical lawsuit could sustain a stand-alone post, but I refuse to devote one to it as a matter of principle. Continue reading →

Morning Ethics Warm-Up: 7/29/2017

July 29, 2017July 29, 2017 / Jack Marshall / 36 Comments

Good Morning!

1. There are several accurate and fair points in the New York Times overview of the Obamacare repeal and replace fiasco, as well as some details that all add up top one thing: the GOP, top to bottom, wasn’t prepared to follow up on the promises it was making during the campaign. To be responsible and honest, it should have had the substitute plan for the Affordable Care Act crafted, analyzed and ready before the 2016 campaign was even underway—you know, one that still dealt with pre-existing condition problem, capped mediacl negligence lawsuit awards. and took steps to lower health care cots while giving the public more choices rather than fewer and not adding to the national debt. Instead, they just used a false promise to stir up the base, like Harold Hill railing about the new pool table corrupting the youth in River City. It was a con job, in other words, all along. Incredibly, the Times reports—assuming that what it reports is true, and of that we can never be sure, remember—

“Vote yes, Republican leaders told the holdouts in their conference. We promise it will never become law. After seven years of railing against the evils of the Affordable Care Act, the party had winnowed its hopes of dismantling it down to a menu of options to appease recalcitrant lawmakers — with no more pretenses of lofty policy making, only a realpolitik plea to keep the legislation churning through the Capitol by voting to advance something, anything.”

That’s nauseating, and unethical governance and politics at its worst.

Morning Ethics Warm-Up: 7/23/17

July 23, 2017July 23, 2017 / Jack Marshall / 84 Comments

Good Morning!

1. Not a single comment on yesterday’s sole warm-up topic, the propriety of complimenting someone’s physical appearance or features? That’s fascinating.

2. I had to wrestle my fingers to the ground yesterday to avoid writing a full post on this editorial by the New York Times editors. I know everyone is sick of Ethics Alarms pointing out the relentless, unprofessional anti-Trump bias in the news media, because I’m sick of writing about it. This may have been a new low, however. In the wake of Sean Spicer’s resignation as White House press secretary, the Times unleashed the equivalent of a mean playground taunt. To read it, one would never guess that the Times had ever experienced any other press secretaries, especially President Obama’s trio of Robert Gibbs, Jay Carney and Josh Earnest , who were uniformly dishonest with disgraceful regularity. Spicer was a “four Pinocchio” spokesman? The standrad term her for Obama’s press lackies was “paid liars,” and the description was fair. Yet the Times didn’t greet the news of any of their withdrawals for the post with “Nyah nyah nyah you suck!” editorials, because the New York Times accepted that President’s lies and deceptions as designed for the greater good.

Of course, it was exactly this unethical journalistic bias that caused Spicer to adopt the attitude that most prompted the Times to attack him personally on his way out the door. He believed that journalists who don’t behave like journalists need not he respected as journalists, and he was absolutely correct in this. Indeed, no newspaper that isn’t able to discern that an editorial like the one yesterday regrading Spicer makes it look like a partisan hackery shop should be respected at all. Spicer was a really bad spokesman—inarticulate, inept, dishonest and not very bright. Nonetheless, he was trying to do a difficult job, did his best, and was no more nor less awful at it than all but a few Presidential press secretaries over the last half century or so. Only Spicer, however, was deemed deserving of such insults at the end, not even Ron Ziegler, Nixon’s complicit press secretary who looked and sounded like a half-successful laboratory clone of his boss. That is because the Times’ editorial was personal, based on emotion and anger, and an ethics alarms void.

3. This story from Canada reads like it was designed to illustrate the folly of giving government more power over our lives rather than less. Continue reading →

The Unethical Fine Print Game

July 17, 2017 / Jack Marshall / 17 Comments

I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,” and the lawyer shrugs and says, “Whatever you say! It’s your contract”?

WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages. 22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”

The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it. Continue reading →

KABOOM! A Head-Explodingly Unethical Lawyer!

June 28, 2017June 28, 2017 / Jack Marshall / 25 Comments

I have never heard of a lawyer behaving this unethically in such a reckless and transparent manner. I have never heard of anything close to this.

Michael Potere, 32, a recently fired former associate at the large law firm Dentons was arrested last week on charges of trying to extort $210,000 and a valuable artwork from the firm, according to a criminal complaint filed in federal court.

According to his profile on LinkedIn, Potere had a Fulbright Scholarship, a master’s degree in public policy and administration from the London School of Economics., and had been an associate at renowned law firm Kirkland & Ellis. Something was amiss, however, as Dentons let him go on June 1. Potere did not take this blow well. He reacted by telling partners that he had taken potentially embarrassing sensitive information from the firm and would leak it all to the legal gossip site “Above the Law” unless he was paid $210,000 and given a valuable piece of artwork owned by the firm.

Potere was able to steal the confidential information because a partner gave him access to his email login information while they were working on a case in 2015, so the associate could access documents related to discovery requests in the case. After he learned that he was being fired, Potere used that login to search through the partner’s emails and download the sensitive documents, including emails between partners, quarterly financial reports, client lists, confidential reviews of associate attorneys, lists of equity partner candidates, documents describing billing rates, details of recruitment efforts, and memos describing how partners should approach clients with outstanding balances” according to the FBI. Continue reading →

Salon Asks: “When Is A Leak Ethical?” NEVER. That’s When.

June 26, 2017June 26, 2017 / Jack Marshall / 58 Comments

Ethically challenged left-wing website Salon somehow found an ethically challenged law professor, Cassandra Burke Robertson, to justify the leaks in the Trump Administration. Robertson, despite being a Distinguished Research Scholar and the Director of the Center for Professional Ethics at Case Western Reserve Law School, advocates unethical and sanctionable conduct in a jaw-dropping post, “When is a leak ethical?”

Here, professor, I’ll fix your misleading and dishonest article for you: It’s NEVER ethical to leak.

Never.

She begins by noting “I am a scholar of legal ethics who has studied ethical decision-making in the political sphere.” Wow, that’s amazing….since she apparently is hopelessly confused about both, or just pandering to Salon’s pro-“resistance” readers.

Robertson writes:

“Undoubtedly, leaking classified information violates the law. For some individuals, such as lawyers, leaking unclassified but still confidential information may also violate the rules of professional conduct.”

1. It is always unethical to break the law, unless one is engaging in civil disobedience and willing to accept the consequences of that legal breach. By definition, leakers do not do this, but act anonymously. Thus leakers of classified information, lawyers or not, are always unethical, as well as criminal.

2. Lawyers may not reveal confidences of their clients, except in specified circumstances. Here is D.C. ‘s rule (my bolding): Continue reading →

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