legal ethics

Three Florida Lawyers Discover How Reporting a Crime Can Be Unethical

/ Jack Marshall / 16 Comments

DUI_setup

How can you get disbarred for reporting a drunk driver? Three Florida lawyers were up to the task.

Stephen Diaco, Robert Adams and Adam Filthaut were found to have “maliciously” set up the drunken-driving arrest of their opposing counsel in a  high-profile defamation trial, and Judge W. Douglas Baird,  the referee in their legal ethics case,  wrote  that Stephen Diaco, Robert Adams and Adam Filthaut should lose their licenses permanently under the legal ethics standards of the Florida Bar.

In 2013, C. Philip Campbell was representing radio shock jock Todd “MJ” Schnitt in his slander suit against another DJ, “Bubba the Love Sponge” Clem. Clem was represented by the Adams and Diaco law firm. Campbell  left court and went to Malio’s Steakhouse in downtown Tampa, near his home and office. While Campbell was at the eatery, he was spotted by Melissa Personius, a young paralegal who worked for Adams and Diaco.

According to testimony, Personius called her boss, Adams, to report that Campbell was in the restaurant. Then Personius sat next to Campbell and the two bought each other drinks. As the night proceeded, Personius periodically relayed information to Adams. Adams then contacted Diaco and Diaco constacted Filthaut to agree upon next steps. The key was that Filthaut was friends with Sgt. Raymond Fernandez, who was then head of the Tampa police DUI unit, thus was able to sic  the DUI unit on the unsuspecting opposing counsel, who was in the process of being plied with liquor by Adams and Diaco’s attractive paralegal.

When it was time to for the targeted lawyer to leave, Campbell told Personius that she was too tipsy to drive and offered to call her a cab. Personius protested that she didn’t want to leave her car at the restaurant overnight and asked Campbell  if he would move the car for her. “Of course,” he said, nice guy that he is. As Campbell drove her vehicle up the street, he made an illegal turn and was pulled over by Fernandez officers, who were lying in wait. He was arrested and charged with DUI. Continue reading →

Lowe’s, The Rights Of Racist Customers, And Why Lawyers and Doctors Aren’t Like Deliverymen

/ Jack Marshall / 19 Comments
Now, if Lowe's drivers had law degree's, this would be a different story....

Now, if Lowe’s drivers had law degree’s, this would be a different story….

A fascinating story unearthed by master ethics sleuth Fred:

In Danville, Va., a customer specifically asked that a Lowe’s delivery be administered by delivery personnel who was not an African American. Marcus Bradley, the black driver assigned to the delivery, was called back to the store, and replaced. When the woman who made the request was interviewed, she said, “I got a right to have whatever I want and that’s it…No, I don’t feel bad about nothing.”

For hiss part, Bradley said that he was surprised that the store didn’t stand up for him, but that he would stay in his job. “I mean I gotta work. I’m going to keep going to work like I’ve always done. But I would think Lowe’s would take it into consideration to think about what they’re doing next time,” he said.

Lowe’s corporate office, when informed about the incident, released a statement that said in part… last week, and they said they’d look into it. Wednesday, we received this statement: Continue reading →

Legally Competent, Ethically Bankrupt: The Zealous, Despicable Monique Pressley, Esq.

/ Jack Marshall / 53 Comments

cosby-women-new-york-magazine-w724

Bill Cosby’s lawyer Monique Pressley decided to become a hybrid attorney-publicity agent yesterday, and in doing so provided an impromptu seminar on why people hate lawyers, and often should. She was carefully spinning and dissembling on behalf of her client without breaching the ethics rules against lying, parsing words and phrases with skill and deftness, all in the service of a serial sexual abuser and perhaps the greatest hypocrite pop culture has ever produced.

Brava!

Also, Yeeccch!

The impetus for her media spin tour, for that is all it was, is the New York magazine issue that features the stories of 35 of Cosby’s accusers. First Pressley told CNN’s Ashleigh Banfield that the women were comparable to a lynch mob: Continue reading →

What A Surprise: Donald Trump Has An Unethical Lawyer!

/ Jack Marshall / 31 Comments
One of these guys is Donald Trump's lawyer. Maybe both...

One of these guys is Donald Trump’s lawyer. Maybe both…

I realize I run the risk, by publishing this opinion, of Donald Trump’s thuggish, boorish, dolt of lawyer trying to “mess [my] life up … for as long as [I’m] on this frickin’ planet,” to put it in his well-measured, restrained and professional parlance. Well, so be it. Seldom do we see any lawyer befoul the image and dignity of his profession like Michael Cohen, Esquire, one of Donald Trump’s lawyers, did yesterday responding to a Daily Beast story about the dirty linen aired during Trump’s divorce from Ivana Trump over 20 years ago.

Ivana then compared a sexual encounter with her husband to sexual assault and rape,  and The Daily Beast wrote about it, as if Trump wasn’t doing enough already to make any decent American head to the loo at the sight of him. So Trump appointed Cohen as his media spokesman on the matter—just think: he was the best and most professional of the candidates for the job!—and he said this to The Daily Beast… Continue reading →

The Most Unethical Prosecutor Of All: Baltimore’s Marilyn Mosby

/ Jack Marshall / 12 Comments

Mosby

In a legal ethics seminar I taught this week for government attorneys, the vast majority of them voted that Marilyn Mosby’s vainglorious announcement of charges against six officers in the death of Freddie Gray was prosecutorial abuse, and a blatant violation of professional ethics rule 3.8, which directs that (this is the Maryland version)…

The prosecutor in a criminal case shall:

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

…
(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Of course it was a breach of ethics, and an outrageous one. Her statement, which I discussed here, not only overstated her justification for bringing the charges, which were rushed and announced before a careful investigation was completed, it also stated that the officers were guilty, and worse, that the charges were being brought because the demonstrating and rioting protesters has demanded it. Mosby’s words suggested that she stood with the mob. Continue reading →

Statutory Rape Case Study: The Ethical Necessity Of Prosecutorial Discretion

/ Jack Marshall / 31 Comments

animal-house-1

Reason tells the troubling story of computer science majoring college student Zach Anderson, 19, who made the acquaintance of a girl  on the “Hot or Not?” app. He was in Indiana, she was in Michigan, a short drive away. They arranged a sexual liaison, a one-time hook-up. The girl lied about her age, though, in person and on her website profile: she was really just 14, just like innocent Larry “Pinto” Kroger’s seductive girl friend in “Animal House” (shown above in her last-second moment of candor*) and thus unable to legally consent to sex. Unlike Pinto, Zach’s fate wasn’t amusing. He  was arrested and tried.

The girl admitted that she lied about her age, and her parents didn’t blame Zach. They asked that the case be dropped. It wasn’t. Without a defense on the facts of the case, Zach made a plea bargain, pleading guilty in exchange for the prosecutor’s promise not to oppose his request for leniency under a Michigan provision for first-time sex offenders under 21 that allows them to avoid off the sex offender registry. The prosecutor then double-crossed him, technically not opposing leniency but reminding the judge that he had rejected such appeals to the leniency provision in the past. (Yes, that is opposing it. Yes, that’s unethical. Yes, the prosecutor is an asshole.)

Then Berrien County District Court Judge Dennis Wiley sentenced Anderson to 90 days in jail and placed him on the Sex Offender Registry for 25 years, lecturing him: Continue reading →

Obama Administration Ethics Train Wreck Update: The James Clapper Perjury Follies

/ Jack Marshall / 29 Comments
NSA head James Clapper testifying, forgetting, speaking in code, misleading or lying. Something. Whatever.

NSA head James Clapper testifying, forgetting, speaking in code, misleading or lying. Something. Whatever.

The Obama Administration not only lies, but encourages and rewards lying. This is an inescapable conclusion. The saga of James Clapper’s perjury before Congress is a perfect, and depressing example.

At a March 2013 Senate hearing, Senator Ron Wyden, prompted by the leaks of classified information through Edward Snowdon, asked head of the NSA James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No, sir,” Clapper replied. “Not wittingly.”

That means, by any assessment, “If we do, it’s not intentional.” That was a lie. Clapper knew it was false. Wyden later said that he had sent his question to Clapper’s office a day before the hearing, and after the hearing had given Clapper’s office a chance to correct the misstatement after the hearing, but it did not. In June, the nation learned that the agency was routinely collecting data on the phone calls of millions of Americans. (This was the program just declared illegal by a federal court.)

NOTE: The original post erroneously attributed the decision to the Supreme Court. It hasn’t heard the case yet. That was a bad and careless mistake, and I apologize for it. Nothing like not checking your own links, Jack.

The government, including Clapper, has now attempted a dizzying array of rationalizations, excuses and obfuscations to avoid the unavoidable conclusion that Clapper lied to Congress while under oath, that he should be prosecuted, or at very least be fired by that leader of the Most Transparent Administration in History That Somehow Manages To Lie every Time A Mouth Open, Barack Obama. Even by the standards of this sorry administration, it’s an ugly journey into the cold heart of an untrustworthy government. Continue reading →

A Particularly Dangerous Ethics Dunce Display: State’s Attorney Marilyn Mosby’s Unethical Statement Regarding Charges In The Death Of Freddie Gray

/ Jack Marshall / 15 Comments

State’s Attorney Marilyn Mosby announced today that the six Baltimore police officers involved in the arrest and subsequent death of Freddie Gray  have been charged with criminal charges  second-degree murder, manslaughter, second-degree assault, vehicular manslaughter , and misconduct in office. I have no comment on that: I haven’t seen the evidence. I will assume the charges are justified base on what evidence there is.

Nonetheless, Mosby’s announcement and related statements from  the steps of Baltimore’s War Memorial Building were unethical, and indeed  constituted a professional ethics breach:

  • Mosby said she told Gray’s family that “no one is above the law and I would pursue justice upon their behalf.” Unethical. Her client isn’t the family. Her client is the state. If the evidence appears too weak to get a conviction based on any new revelations, her duty to her client, which only requires justice, not justice for any party, would be to drop the case. Telling the family that she is working “on their behalf” is either a lie, or, if true, unethical. She is not their lawyer or the victim’s lawyer.
  • “I heard your call for ‘no justice, no peace,'” she said. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”

Ugh. Again the “on behalf of” misstatement. Worse, though, is “I heard your call for ‘no justice, no peace.” What are we to take from this statement, other than the disgraceful admission that the indictment is in response to mob violence and threats of more? She may not say that. By saying it, she has undermined the rule of law. Prosecutors must not”hear” demands that a citizen be prosecuted, or not prosecuted. They are ethically obligated to ignore them, and do what the evidence dictates.

The demonstrators obviously got her meaning. Desmond Taylor, 29, shouted to the crowd,  “This day means that your actions bring consequences in Baltimore City.”

Imagine what else riots and arson might bring! Continue reading →

Acting Ethics: Why We Don’t Want Actors Being Too Picky About Their Roles

/ Jack Marshall / 22 Comments

FergusonX

In the strange ethics category of “Conduct That Isn’t Exactly Wrong But That Will Have Nothing But Bad Consequences To Society If There Is A  Lot Of It” (CTIEWBTWHNBBCTSITIALOI for short) is actors rejecting roles because they have philosophical or political disagreements with the script.

We’ve had two high profile examples of this occur lately. All we can do is hope that it’s a coincidence. The first was when about a dozen Native American actors, including an adviser on Native American culture, left the set of Adam Sandler’s first original movie with Netflix, “The Ridiculous Six,”a western send-up of “The Magnificent Seven,” claiming some of the film’s content was offensive.

Really? An Adam Sandler movie offensive?

The second and more troubling was in LA,  where five actors quit the cast of the new play “Ferguson,” which consists entirely of dramatizations of the Michael Brown murder grand jury testimony, because the actors apparently felt that it did not appropriately support the “Hands Up! Don’t Shoot!” narrative.

That’s really stupid, but I’m not getting into that again.

We don’t see many examples of professional actors doing this for several reasons. One is that they can’t afford to. Acting, except for the top fraction of a per cent, is anything but lucrative; it’s a subsistence level job, redeemable because it is, or can be, art, and tolerable as long as the actor doesn’t have a family to support, or has a trust fund.

The main reason this is unusual, however, is that an actor isn’t responsible for the content of the play, movie or TV show he or she acts in, but only the skill with he or she helps present that content to an audience. Actors—and technical artists like costume and light designers—are the conduits through which a writer’s work of performance art gets to live. They don’t have to like a show, agree with it or understand it, which is a good thing, since many excellent actors don’t have the  education, experience or intellect to understand complex and profound works. As one realistic actor friend once told me, “If we were that smart, we’d be smart enough to be in another profession.” Continue reading →

Inevitable, Unethical, Technological Incompetence By Our Governments

/ Jack Marshall / 37 Comments
Hey, what could go wrong?

Hey, what could go wrong?

The legal profession is in the midst of an ethics crisis not of its own making. New technologies, including social media, have created opportunities for vastly improved legal services, to such an extent that the American Bar Association has decreed that an ethical, competent lawyer, must use them. It has also made it clear that using them carelessly to the detriment of clients is unethical as well. It all sounds reasonable, except for this: few lawyers are equipped by education, training or nature to be adept at technology. Worse, technology is now changing so fast that few lawyers can keep up with it.

Thus they make mistakes. Costly mistakes, disastrous mistakes, stupid mistakes, and there is no learning curve, because by the time lawyers understand and master a new technology, it is no longer new, and it has taken on a different form that requires them to start all over again. The ABA and other bar associations have acknowledged this through inaction. After numerous instances where their ethical guidelines regarding the use of technology were obsolete or wrong from the moment they were issued, these bodies have resorted to general edicts only, essentially saying, “You must master available legal practice technology, and you must not screw it up. Don’t ask us how, we’re as confused as you are.”

Gee, thanks.

Unfortunately, it is not just the legal profession that is in peril from technological overload, unrealistic expectations and the speed of innovation. Our various levels of governments are, if anything, in even worse peril from the same phenomenon.

One week ago, the Virginia State Board of Elections frantically voted to  decertify use of the AVS WinVote touch-screen Direct Recording Electronic voting machine, meaning that the machines, which were used by dozens of cities and towns in Virginia, are effectively banned. Virginia is holding primaries  just two months from now, so this has thrown those local governments into a panic. The decision was unavoidable, however, after a shocking a report that demonstrated that the machines could be hacked, and elections rigged, by a 12-year-old…that is, anyone with more technological expertise than local government officials.

Continue reading →