legal ethics

Unethical Quote Of The Month: Above the Law’s Joe Patrice

/ Jack Marshall / 9 Comments

[C]onsensual relationships with adults don’t seem like a big deal. Sure, the conflict of interest of sleeping with someone in your class is deserving of discipline, but, really, in a state where you can marry your sister, is it a fireable offense to hookup with a twenty-something attorney-to-be? Obviously, if there were more serious allegations that would be another matter, but so far we’ve only learned of this more benign brand of misconduct.

—-Above the Law writer Joe Patrice, commenting, incompetently, on the firing of Virginia University College of Law Professor Arthur Rizer, for having sexual relations with multiple students.

Professor Rizer, the Sam Malone of West Virginia University College of Law...

Professor Rizer, the Sam Malone of West Virginia University College of Law…

This commentary, from a regular writer for a website that covers law schools, is so ethically obtuse and legally ignorant that he should be fired. “Not a big deal”? Sexual harassment at law firms is a very big deal as well as a very big problem, and a law professor who flagrantly violates an anti-harassment policy like the prohibition against professors treating the student body as their own personal dating bar is teaching that seeking sex with subordinates is culturally acceptable in the legal profession. It isn’t. It never has been.

The professor’s conflict of interest is the least of his self-created problems. First, there is no valid consent in such cases. The professor has real and perceived control over students’ academic success and legal career viability. This is classic inequality of power that gives a professor implied leverage over a student’s “consent” to sexual relations. Moreover, the knowledge that a professor is having sex with students constitutes third-party sexual harassment. Do other students assume that they are expected to have sex with the professor if he requests it? Is the professor looking at female students as mere sex objects? Are students that provide sexual access more likely to get high grades? What happens to students who say “no”? This creates a hostile environment for study and education. Continue reading →

Now THIS Is Hypocrisy (Among Other Things)…

/ Jack Marshall / 2 Comments

Hypocrisy meter

I thought Eliot Spitzer set a high bar for hypocritical prosecutors, but Ingham County (Michigan)  Prosecutor Stuart Dunnings makes him look like a piker.

Dunnings, a well-respected prosecutor since 1997 and an outspoken advocate for ending human trafficking and prostitution, is facing fifteen  criminal charges in Ingham, Clinton and Ionia counties, including ten counts of prostitution, pandering and four counts of willful neglect of duty.

Investigators connected to a 2015 federal investigation into a Michigan-based human trafficking ring determined that between 2010 and 2015, Dunnings paid for sex hundreds of times with many women whom he contacted using escort websites. Dunnings also allegedly induced one woman to become a prostitute,leading to the pandering charge, which carried a maximum sentence of 20 years. The prosecutor’s  brother, Lansing attorney Steven Dunnings, was also charged with two counts of prostitution.

Ethics Alarms frequently finds itself annoyed by mistaken, incorrect or unfair accusations of hypocrisy, and is grateful to Dunning, who claimed to be dedicated to wiping out human trafficking and prostitution while he was really supporting both with his patronage, for giving us a clear and unequivocal demonstration of what real hypocrisy looks like.

“Zodiac” And Real Lawyer, Fictional Lie Ethics

/ Jack Marshall / 5 Comments

zodiac Belli

One of the problems with being an ethicist is that every movie seems like an ethics movie.

I watched “Zodiac” last night, struck by how much it resembled “Spotlight,” and not just because Mark Ruffalo had similar roles in the two films. It is a long, intense 2007 movie about the frustrating 1960s and early 1970s manhunt for the serial killer who called himself the “Zodiac” while killing seemingly random victims in the San Francisco Bay Area, and taunting police, Jack the Ripper-style, by sending them  letters, blood stained clothing, and in a special touch, ciphers mailed to local newspapers. The case remains unsolved.

What set off my ethics alarms, however, was a scene based on an actual incident in the case. From the website “Zodiac Killer Facts”:

On the night of October 11, 1969, the Zodiac murdered cabdriver Paul Stine and removed a portion of the victim’s shirt. Days later, the killer mailed an envelope to the offices of The San Francisco Chronicle. Inside, the Zodiac had included a blood-soaked piece of Stine’s shirt along with a letter that traumatized the Bay Area for decades. In his customary cavalier style, The Zodiac wrote, “School children make nice targets. I think I shall wipe out a school bus some morning just shoot out the frunt tire and pick off the kiddies as they come bouncing out.”

The Zodiac’s threat to assassinate school children terrified children and parents everywhere, and created a nightmare of security concerns for police and school officials. Armed men escorted children to and from schools while patrol cars and even aircraft followed along and monitored the surrounding area. As media coverage of Zodiac’s murderous plans increased and fears of a horrific ambush grew, a local television station was the setting for a chilling scene.

In the early morning hours of October 22, 1969, the Oakland police department received a phone call from a man claiming to be the Zodiac. The caller said he wanted famous Boston attorney F. Lee Bailey to appear on a local television talk show, but told the operator that he would settle for San Francisco lawyer Melvin Belli in the event Bailey was unable to appear.

Hours later, Belli was the guest on the show with host Jim Dunbar. A man called the KGO television station several times, and, in conversation with Belli, claimed he was the Zodiac and that his name was “Sam.”

Continue reading →

Ethics Quiz: Therapist Biases And Ethics Confusion

/ Jack Marshall / 25 Comments
(Boy, does this freak disgust me...)

(Boy, does this freak disgust me or what...)

The Tennessee Senate’s Senate Health and Welfare Committee members have overwhelmingly approved a proposed bill that seeks to protect  therapists from 2014 changes in the American Counseling Association’s Code of Ethics. The Code decrees that “counselors refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs and behaviors.” The bill, however, will allow practitioners to refuse to accept a patient without legal or professional penalties as long as they refer the individual  to another qualified professional.

The Tennessee Association for Marriage and Family Therapists opposes the legislation, saying “This bill is in direct opposition to the ethical code of the American Association of Marriage and Family Therapy and potentially harmful to clients,” the group said in a statement. “Our mandate to do no harm to the consumer, we believe, would be violated.” A therapist who testified before the committee opined that “they can keep their belief system and still offer good counseling but not based on their religious beliefs.” Others have objected to a legislative body dictating professional ethics.

Your Ethics Alarms Ethics Quiz today is…

Is the proposed bill reasonable and ethical, or just a way to allow bigoted counselors to discriminate?

Continue reading →

Ethics Quote Of The Month: “Bridge of Spies”

/ Jack Marshall / 8 Comments

bridge-of-spies-656

The shooting script for the Academy Award nominated film “Bridge of Spies” is now online. Written by Matt Charman and the Coen brothers, it, like the film that Steven Spielberg made out of it, provides an unusually accurate and nuanced portrayal of ethical lawyering. The movie is worth seeing, better more than once, and I expect that I will use many issues raised in it for class discussion as I teach legal ethics to lawyers this year.

There is one howlingly wrong scene, in which the lawyer, Jim Donovan (played by Tom Hanks) has a private discussion with the judge who will be sentencing his client, a convicted Russian spy. Donovan argues against a death sentence. If this happened, and I doubt it, it would have been an egregious ethics breach: this is called ex parte contact, and is strictly forbidden.

The film redeems this misstep many times over, especially in a scene that neatly explores both the duty of confidentiality and the duty of loyalty, as well as the crucial role of rules in society, and why “the ends justify the means” as well as those who advocate that philosophy must be rejected. “Ethics Bob” Stone told me that he now uses the scene in his business ethics classes.

The scene begins with Donovan meeting in a restaurant with a man who has been following him…. Continue reading →

The Final Ethics Verdict On Ted Cruz

/ Jack Marshall / 26 Comments

Check enclosed

See that official-looking envelope above? That’s from Ted Cruz’s campaign: it’s been arriving in mailboxes all over the country. See what it says in the lower right corner? “CHECK ENCLOSED.” This is to entice you to open it. But here is the “check” enclosed:

Cruz check

It’s not a check. It looks like a check, but it isn’t one, because checks can be cashed. It’s a fake check not made out to the recipient of the envelope, but to the Cruz campaign. This is a fundraising appeal, you see, but it has employed two lies: Continue reading →

The Seventh Annual Ethics Alarms Awards, Part II: The Worst of Ethics 2015

/ Jack Marshall / 17 Comments

Donald and Hillary

Ethics Corrupters of the Year

(Awarded to the unethical public figure whose prominence, popularity and success most corrupts the public’s ethical values)

A Tie: Hillary Clinton and Donald Trump.  Nobody else is close.

I’m sorry that these two are so dominating the awards. They also dominated the posts last year. If they dominate the awards next year, God Save The United States of America…

Double Standard Of The Year

The deference accorded to anti-white protesters on dozens of college campuses, not just by spineless administrators but much of the news media. Similar protests, conduct and rhetoric by white students would be immediately condemned for what it would be: blatant racism.

 Lie of the Year

Hands Up! Don’t shoot! The lie was uttered in 2014, but acquired new status after the Justice Department unexpectedly and definitively determined that the evidence did not support the inflammatory myth that Mike Brown was shot dead in Ferguson while trying to surrender to Officer Wilson. Never mind: the lie is part of the manifesto of Black Lives Matter and similar groups; it is still alluded to by activists and shameless politicians; it still divides the nation and focuses hate on police departments; and it has contributed to getting police officers killed while making communities more vulnerable to crime. It may be the Lie of the Decade.

Uncivil U.S. Official of the Year

Justice Antonin Scalia, who crossed all lines of judicial restraint, collegiality and civility when he excoriated his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling  that same-sex marriage was a Constitutional right no state could deny, with this comment in a footnote:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia,

 

The Jesse Jackson Award 

(For the Year’s Worst Amateur Diplomat)

Barack Obama.  I know, this is snarkier than I like to be in these awards, but the signature diplomatic measure of the past year, the astounding, one-sided, dangerous and Munich-like deal with Iran, could only be the product of an ideological tyro placing wishes and hopes over diplomatic responsibility, and not for the first time. For most Presidents, trading dangerous terrorists for a deserter would be nadir. History has seen many tragedies seeded by world leaders with no diplomatic skills: the disastrous Treaty of Versailles,  Potsdam, and the treaty that this one most resembles, negotiated by the hapless Neville Chamberlain. We can only hope that the worst case scenario doesn’t materialize, but if it does not, it will be moral luck.

Most Unethical Sports League

New England Patriots quarterback Tom Brady speaks at Salem State University in Salem, Massachusetts, May 7, 2015. REUTERS/Charles Krupa/Pool ORG XMIT: BKS06

The NFL, for the third year in a row. “Concussion,” Tom Brady, Deflategate, more evidence that NFL players are slowly killing themselves with brain damage, Johnny Manziel.  What a great sport pro football is.

Sports Cheat of the Year

Tom Brady, New England Patriots ball-deflating quarterback.  Brady eventually avoided punishment because the NFL botched both its investigation and its imposition of penalties, but his smirking, cynical comments about the incident made it clear that he thinks cheating is no big deal, and most of his fans agree.

Not surprisingly, Brady supports Donald Trump.

Unethical Lawyers of the Year

Law Firm Division:  Lawyers Stephen Diaco, Robert Adams and Adam Filthaut of the Florida firm Adams & Diaco were found to have “maliciously” set up the drunken-driving arrest of their opposing counsel in a  high-profile defamation trial. The plot involved a comely paralegal and a cooperative DUI cop. Last I checked, it looked like all three lawyers would be disbarred for life.

Scary Lawyer Division: California lawyer Douglas Crawford  held a can of pepper spray a yard from the face of the opposing lawyer saying, “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 the startled lawyer’s face.

Hard-working Lawyer Division: Massachusetts lawyer,  Karen Andrade, was  charged with prostitution after a police investigated a report by a suspicious neighbor and  found online reviews of both the lawyer’s legal services and her escort services

Celebrity Lawyer Division: Michael Cohen,  one of Donald Trump’s lawyers, told the Daily Beast that it was legally impossible for a man to rape his wife. He was only a couple of decades and many court cases behind on his research. That piece of legal scholarship came after he had threatened the website’s staff in language usually associated with loan sharks and pimps.

Unethical Prosecutor of the Year

Mosby

Baltimore’s City Attorney Marilyn Mosby
Continue reading →

The Case Of The Snoozing Prosecutor

/ Jack Marshall / 5 Comments

cigar ash

There is a true story about Clarence Darrow putting a wire in his cigar and puffing it during an opponents closing argument to the jury. The idea was to create an absurdly long ash, so the jury would become distracted and watched to see when it would fall on his suit, when they were supposed to be paying attention to the summation. I’ve used that story in ethics seminars, asking attendees if this was unethical, and if so, was there a rule that could be used to punish a lawyer who did it.

Now comes word that the Maine Supreme Judicial Court ruled  on Tuesday that there was no prejudicial error in the trial of Buddy Robinson, who was convicted in the death of his downstairs neighbor, despite the fact that the prosecutor, then Assistant Attorney General Andrew Benson, pretended to fall asleep during his Robinson’s lawyer’s closing. Robinson had appealed the verdict because of this and other questionable conduct by the prosecutor. Benson admitted that he sometimes pretended to be asleep in trials to annoy defense attorneys. In its opinion denying the appeal, the court concluded that the trial judge did not err in denying Robinson’s motion for a new trial, given the strength of the prosecution case.

It also said that the fake sleep bit “was sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”

It’s also an ethics violation, a couple of ways. Maine’s Rules… Continue reading →

Ethics Alarms’ All-Time Greatest Hits

/ Jack Marshall / 17 Comments

AllTimeGreatestHits

I am listing these because one of the past posts that keep drawing readers is going nuts today: the 2013 essay about the horrible Wanetta Gibson, who sent Brian Banks, a young man with a bright future to prison by falsely accusing him of rape when she was 15. If anyone has any idea why this would be, let me know; as far as I can find out, there are no new developments in the case.

It is gratifying that so many Ethics Alarms posts continue to find new readers. Here are the top ten that have “legs,” and my assessment of why.

1. The Rationalizations List. That’s no surprise, since I link to it so frequently, and it is also frequently updated.

2. Wanetta Gibson Is Even Worse Than We Thought

3.The Amazing Mouthwash Deception: Helping Alcoholics Relapse For Profit. I am proud of this one. The use of mouthwash by alcoholics is epidemic, yet now, as in 2010 when I wrote this, almost nobody who isn’t a drunk is likely to know it. This makes it easy for closeted alcoholics to hide their illness, and continue to harm themselves by gulping 54 proof liquor out of various convenient containers or their caps, which are coincidentally shaped like shot glasses. Incredibly, the Ethics Alarms post is still one of the few references on this problem on the web. As you will read, I think the makers of mouthwash intentionally keep it this way, because the alcoholic market is huge.

I regularly receive thanks from family members of alcoholics, who tell me that reading this post led to their discovering that a loved oned had relapsed. Continue reading →

Tales Of The Unethical: A Client Hacks, His Lawyer Cheats, And HIS Lawyer Spins

/ Jack Marshall / 6 Comments

hackedWhat a mess.

Missouri lawyer Joel Eisenstein saw two documents illicitly obtained by his client: a payroll document for the client’s wife and a list of direct examination questions prepared by his client’s wife’s attorney for an upcoming divorce trial.

This kind of stuff, proprietary material that is handed over to a lawyer by someone, including a client, who received it under dubious circumstances is ethically radioactive. As the DC bar wrote in Ethics Opinion 318…

When counsel in an adversary proceeding receives a privileged document from a client or other person that may have been stolen or taken without authorization from an opposing party, Rule 1.15(b) requires the receiving counsel to refrain from reviewing and using the document if: 1) its privileged status is readily apparent on its face; 2) receiving counsel knows that the document came from someone who was not authorized to disclose it; and 3) receiving counsel does not have a reasonable basis to conclude that the opposing party waived the attorney-client privilege with respect to such document. Receiving counsel may violate the provisions of Rule 8.4(c) by reviewing and using the document in an adversary proceeding under such circumstances and should either return the document to opposing counsel or make inquiry of opposing counsel about its status prior to determining what course of action to take. Continue reading →