legal ethics

Ethics Heroes: The Orleans Public Defenders

/ Jack Marshall / 46 Comments

foldersWhen is it your ethical duty to refuse to do your job? Here is one example.

The Orleans Public Defenders office finally decided to force the issue of under-funding for the defense of indigent criminals in the city, announcing last week that, as Chief Defender Derwyn Bunton warned nearly two months ago without any official response, it will begin refusing to handle serious felony cases in which defendants face lengthy or life sentences. Such cases include murder, attempted murder, forcible rape and armed robbery.

The office either needs more funding or reduced caseloads. The city must provide a lawyer for those charged who cannot afford counsel (The 6th Amendment and the Supreme Court insist) , but like almost every city in the nation, the funding for the New Orleans public defenders service is pitiful. With an inadequate staff of lawyers who must handle more cases than it is possible to defend competently, this creates both a Constitutional crisis and an ethical one.

Defense lawyers, like all lawyers, must do a competent job. The professional ethics rules require attorneys to control their workloads: Comment 2 to ABA Rule 1.3, which corresponds to the Louisiana rule, states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” Most public defenders offices know that their clients’ right to representation is being compromised by under-funding, but choose to soldier on, doing the best they can. Several years ago, one office even argued that their clients had “consented” to less than competent representation, because the alternative was no representation at all.  (The court did not agree.)

The American Bar Association addressed this problem in a formal opinion, and wrote, Continue reading →

David Brooks’ Dirty Hit On Ted Cruz: How Pundits Lose Credibility

/ Jack Marshall / 36 Comments
That's some role model you've chosen there, David

That’s some role model you’ve chosen there, David

…or at least deserve to.

Here is how New York Times columnist David Brooks begins his character evisceration of Ted Cruz:

“In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.

Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.

Some justices were skeptical. “Is there some rule that you can’t confess error in your state?” Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.”

From this, Brooks goes on to conclude…

…Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism: an overzealous application of the letter of the law in a way that violates the spirit of the law, as well as fairness and mercy….Cruz’s speeches are marked by what you might call pagan brutalism. There is not a hint of compassion, gentleness and mercy. Instead, his speeches are marked by a long list of enemies, and vows to crush, shred, destroy, bomb them.

Cruz’s behavior in the Haley case [Dretke v. Haley] does nothing of the sort. The columnist intentionally—I’m assuming that he read the case, now—misrepresented what the case was about, how the court reacted, and what Cruz’s ethical duties were regarding it. As it happens, I share much of Brooks’ dislike of Cruz’s rhetoric. This case, however, tells us nothing about Cruz’s character. It tells us that that as Solicitor General of Texas, Cruz did his job, which was to represent his client’s position.

James Taranto, the pretty damn brilliant Wall Street Journal blogger, wit and conservative pundit, nails Brooks to the wall. He writes in part… Continue reading →

Here’s What Was REALLY Wrong With Bill Cosby’s Sweater…

/ Jack Marshall / 17 Comments

Cosby sweater

Washington Post fashion editor Robin Givhan set off a lively controversy by alleging that the “grandpa” sweater Bill Cosby wore to court was a calculated and manipulative ploy to gain public sympathy. “Bill Cosby’s perp walk was striking for its overwhelming lack of grace and power. It was an exploitation of our assumptions of fragile old age,” she wrote.  “It was the explicit manipulation of a studiously unattractive sweater.”

Was it? Lawyers often micro-manage a clients’ appearance in court; when it amounts to deception, I have written that it is unethical. Cosby’s attire seems hardly deceptive; after all, he is famous for his sweaters. There is even a pop song called Cosby’s Sweater. Ann Althouse agrees with Givhan that it was “a con,” but suggests that it’s an ethical con because “everybody does it.”

I don’t understand either Givhan’s logic or Althouse’s, and if Cosby’s lawyers talked him into this costume, they did him no favors. Cosby’s best armor against the verdict of public opinion is that Cliff Huxtable would never do the horrible things he’s being accused of.  There is no better, more benign, more appealing image of Bill Cosby than “TV Bill Cosby” as we fondly remember him. In court, he looked like a dirty old man, which is what he apparently is. Cliff Huxtable wouldn’t be caught dead wearing a sweater like that to court. (Bill would have also been well-advised to shave.) Continue reading →

Mistrial In The First Freddie Gray Trial: There’s No Way Out Of This Ethics Train Wreck

/ Jack Marshall / 16 Comments

Judge Declares Mistrial In First Freddie Gray Trial

In Baltimore this week, a judge declared a mistrial in the case of Baltimore Police Officer William G. Porter after jurors said they were deadlocked regarding all of the charges against him in the death of Freddie Gray. Porter, 26 and an African American, is the first of six police officers to be tried in Gray’s death. He has been charged with with involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office. Street protests began almost immediately.

Let’s review this disaster so far, shall we? Continue reading →

Unethical Lawyer Of The Year, Mae West Division….

/ Jack Marshall / 6 Comments

The ABA Journal is on a roll today..

“A Miami lawyer was arrested outside Disney World’s Magic Kingdom earlier this month after a security guard noticed a bulge in the attorney’s pants that turned out to be a loaded gun…Police say the lawyer, 36-year-old Andrew Gerson, told the suspicious security guard that the bulge was his genitalia…The guard called a sheriff’s deputy who pulled his gun and ordered Gerson to stop after Gerson began running away, according to police. Gerson stopped running, dropped to his knees, told the deputy he had a gun and was arrested…”

When they are deciding how long to suspend this idiot’s law license, they should give him credit for the film reference.

 

Now THAT’S An Unethical Lawyer!

/ Jack Marshall / 12 Comments
Don't keep them waiting, Doug...

Don’t keep them waiting, Doug…

You know, I don’t comprehend  professional ethics alarm malfunctions like this one. I mean, if a lawyer thinks, “Hey, I think I’ll threaten opposing counsel with pepper spray and a stun gun to keep him in line,” and no faint ringing in his head suggests, “Wait—that might be unethical—maybe I sould check the rules,” what would make his ethics alarms sound? How can a lawyer ever think such conduct is justifiable or permissible, never mind that he could get away with it?

Nevertheless, California Douglas Crawford  held a can of pepper spray a yard from the face of the opposing lawyer, Walter Traver, during an April 2014 deposition  (with a stenographer there!). Crawford then told Traver, “I will pepper-spray you if you get out of hand.” Then the lawyer pointed a stun gun at Traver’s head and said, “If that doesn’t quell you, this is a flashlight that turns into a stun gun.” To show he wasn’t kidding, Crawford discharged the stun gun near Traver’s face. Continue reading →

Update On “The Worst Aunt Ever” Debate

/ Jack Marshall / 6 Comments
Auntie Maim and Nephew Maimer...

Auntie Maim and Nephew Maimer…

Remember the Ethics Alarms post about the favorite aunt who sued her 12-year old nephew for damages based on her injury when he jumped into her arms at his birthday party when he was 8? Remember the indignant plaintiffs lawyer who couldn’t get his mind around the fact that normal people don’t (ande shouldn’t) always see right and wrong like lawyers do, or that “it’s done all the time” (that is, The Golden Rationalization, #1 on the Rationalizations list, “Everybody does it”) and “there are worse lawsuits” ( or the worst of all rationalizations, #22, “Comparative Virtue” or “Its not the worst thing”) are not sufficient ethical defenses of a woman who voluntarily traumatizes a child who trusts her and who just lost his mother?

The Weekly Standard looks at the episode from some different angles, and writer Charlotte Allen does an excellent job providing a balanced analysis of the case (which I am now using in my ethics seminars to explain to lawyers how legal ethics alone is often not enough to make lawyers ethical). I am awash with regret that I didn’t think of the gag  “Auntie Maim” in the original post, which admittedly went a bit overboard in its condemnation as it was. Mostly, however, I am gratified that I was quoted in the piece after a well-handled interview with Charlotte, and indeed that she used my perspective to sum up the significance of the episode.

You can read it all here.

Unethical Judge Of The Month: Florida Circuit Judge Jack Schramm Cox; Runner Up: Wisconsin Judge Philip Kirk

/ Jack Marshall / 8 Comments

JudgeFor a judge, you just can’t get any more incompetent than this.

In Florida, Circuit Judge Jack Schramm Cox ordered the Palm Beach Post to scrub a previously published story from its website. This is prior restraint, or the government preventing publication based on content. The order violates the First Amendment; it isn’t merely unconstitutional, it is incredibly unconstitutional. Concluded Constitutional Law professor and blogger Jonathan Turley in his usual restrained manner,  “The utter lack of legal judgment (and knowledge) shown by Cox in this order is deeply troubling.”

It’s not troubling. It’s ridiculous. Continue reading →

Trump’s New Jersey Muslims 9-11 Celebration Lie Justifies A Nazi Label

/ Jack Marshall / 24 Comments

trump-salute

The current controversy—except there’s no disagreement on the facts, so it isn’t really a controversy—over Donald Trump’s unretracted statement that he saw “thousands” of New Jersey Muslims celebrating the Twin Towers’ destruction on 9-11 is materially different from the other items on the list of his various outrageous insults, vulgarities and misrepresentations. It’s a Big Lie, the device perfected and employed by Hitler and Goebbels, a weapon of totalitarianism. Other American politicians and leaders have dabbled in the technique, of course. I flagged the false accusation that the Republicans “stole” the 2000 Presidential election as a Big Lie; so is the Democratic cant that Bush “lied” about weapons of mass destruction. The “War on Women” is a Big Lie. Birthers are engaging in Big Lie politics—so is Rep. Alan Grayson (D-Fla), who insists that Ted Cruz isn’t a “natural born” American. The Truthers are Big Liars. Black Lives Matter was built on the Big Lies that Trayvon Martin and Mike Brown were murdered. The current claim, being treated with disgusting respect by journalists, that white America is engaged in systematic black genocide is a Big Lie.

Most of these, however, are really Little Big Lies. They are dangerous and destructive, but not in Goebbel’s league. Trump, however, is using a Big Lie to impugn the patriotism and trustworthiness of a group of citizens based on their religion and cultural heritage, and attempting to stir up purely group-based hate. To hell with Hanlon: this is Nazi Propaganda 101, and deserves to be identified as such directly to Donald Trump’s face.

There is no debate over whether Trump could have “seen” thousands of Muslims whooping it up on TV (like blacks celebrating O.J.’s acquittal for gutting his wife), because no such video was taken, broadcast, or archived. If there were such celebrations, Trump didn’t see them, unless he somehow obtained George Burns’ magic TV from the old Burns and Allen sitcom, on which George was able to see what his wife, friends and neighbors were doing while he chatted with the TV audience. If Trump did see such a non-existent broadcast, he couldn’t have seen “thousands,” unless there was a ’round the state relay, like they do on New Years Eve at midnight, going around the country to show simultaneous celebrations.

Trump didn’t see it. He couldn’t have. There is no controversy.

Yet he still claims he did, and has a team of paid liars telling media interviewers he did. He could have said he was mistaken; he could have said that he confused televised scenes of Muslims abroad celebrating (though not “thousands”) with accounts of some Muslims celebrating in New Jersey, and apologized. He didn’t though. He stuck to a false story after he had to know it was wrong, and that makes it a lie. The fact that the lie tacitly suggests that American citizens of the Muslim faith lack loyalty to their nation and love of their fellow citizens whom they cheered to see murdered  makes it a Big Lie. Continue reading →

Ethics Film of the Year: “Spotlight”

/ Jack Marshall / 37 Comments

No spoiler alerts necessary; I’m not going to say much about the film’s plot. Just go see it.

Sure, I was predisposed to like “Spotlight.” It’s about Boston, my home town; Fenway Park even appears in it, Red Sox and all.  I had also followed the unfolding Catholic Church sexual molestation scandal there that the Boston Globe broke in 2002. This was the Globe’s momentous investigative journalism series which showed the extent to which high-ranking Church officials allowed child predator priests to continue harming trusting kids, as the Church paid for confidential settlements to victims and transferred the criminal priests to other parishes, where they could, and did, strike again. “Spotlight” tells the story of how a group of Globe editors and reporters finally exposed a local conspiracy of corruption that spread across institutions and professions, and that pointed to a world-wide scandal that still haunts the Catholic Church today.

It’s a better ethics movie than “All The President’s Men,” to which it will inevitably be compared. Whether it’s a better movie or not is a matter of taste. (I liked it better.) Where the movie really shines, however, is how it raises so many of the ethics issues we routinely cover here, such as…

  • Legal ethics: the duty of lawyers to represent clients, confidentiality, and when, if ever, human ethics require the breaching of professional ethics.
  • Ethics corruptors, and what happens when admired, trusted and powerful people and institutions require their followers to show their loyalty by ignoring, rationalizing or covering up wrongful acts.
  • Journalism ethics: the business of journalism’s conflict with the duty of journalists to find and publicize the truth; how ambition, personal biases and non-professional concerns can warp perspective and performance
  • Ethics and religion, hypocrisy, and the institutional utilitarian choice to protect the whole when it means sacrificing individuals
  • Rationalizations, including the Saint’s Excuse and the King’s Pass, in which prominence and “good deeds” seem to justify double standards.
  • Hindsight bias, Moral luck, and more.

Continue reading →