legal ethics

Harvard’s Claudine Gay Scandal Just Keeps Getting Better, Though I Guess We Shouldn’t Be Surprised That An Unethical University Uses Unethical Lawyers

/ Jack Marshall / 8 Comments

It’s really a shame that I have to post this today, when the Ethics Alarms traffic consists largely of metaphorical tumbleweeds blowing down the empty dusty streets. However, we know most of the news media is trying to bury the series of revelations that prove that the leader of higher education rot hired an unqualified president because she was black, female, and a DEI agent, and that because she is black and female, Harvard is employing lies, excuses and rationalizations to avoid dumping her when a white male president who had been revealed as a plagiarist in scholarship and a blathering fool before Congress would have been fired in a flash.

I know this blog is a small, tinny voice in the vast wilderness, but it’s something.

Above you see excerpts from a 15 page letter sent to the New York Post threatening to sue on Harvard’s behalf if the paper continued to report the discovery by conservative reporter Christopher Rufo and others that Gay had plagiarized the works of other scholars by using their words and ideas as her own without attribution in dozens of instances, including her Harvard dissertation. The Post points out that Harvard, through its attorneys at Clare Locke, stated that there was no plagiarism and that the allegations were false before Harvard had bothered to investigate the claims. This also means that Gay approved of the letter, which she knew was itself “demonstrably false”:

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The 2023 Ethics Companion To “Miracle On 34th Street” [Updated and Expanded]

/ Jack Marshall / 20 Comments

2023 Introduction

What makes “Miracle on 34th Street” the most appropriate classic Christmas film for 2023 is its theme: the importance of conquering cynicism and  pessimism, and always keeping one’s mind and heart open to hope. This has been a truly awful year, not one of the worst in our history but to a lot of Americans it seems that way (because they “don’t know much about history,” like Sam Cooke), but bad enough that we should be glad to see it go. I know my year has been especially miserable on multiple fronts. Nonetheless, I remain, at heart, about 12 years old. The same things make me laugh; my level of optimism remains high; I believe in this nation’s miraculous ability to somehow get out of the fixes it gets itself into; I’m still a romantic, and, yes, I think with a little luck and one more starting pitcher, the Boston Red Sox can make it to the World Series next year. I am being constantly confronted with old friends, some much younger than me, who have suddenly decided to be old: they think old, they act old, and they seem to have given up the future as irrelevant. The Santa Claus myth represents faith in the possible, or rather the impossible. Yes, its easier when you are a child, but it is worth the fight to never lose the part of you that still believes in magic and miracles. Kris Kringle really isn’t Santa Clause: he’s nuts, basically. But somehow that tiny wisp of a hope that he might be the real Santa is alive at the end of the movie. It’s really quite wonderful. It’s also important.

The production of “Miracle on 34th Street” itself epitomizes the ethical values of competence and integrity. Watch any of the attempts to remake the film over the years; some aren’t bad, but none equal the original, or even justify a remake that places the story in contemporary times.There have been four remakes starring, as Kris Kringle, Thomas Mitchell, Ed Wynn, Sebastian Cabot, and Richard Attenborough. That’s a distinguished crew to be sure. Mitchell was one of the greatest character actors in Hollywood history. Wynn was nominated for an Academy Award (for “The Diary of Ann Frank”) and Attenborough won one, Best Supporting Actor Award in 1967 for “The Sand Pebbles.” Cabot wasn’t quite in their class, but he was a solid pro, and looked more like Santa Clause than Mitchell,  Wynn, or Attenborough.

None of them, however, were as convincing as Edmund Gwenn. He made many movies—all without a white beard— and had a distinguished career in films and on stage, but even audience members who knew his work had a hard time reminding themselves that he wasn’t Kris Kringle while they watched the movie. I still have a hard time.

 The film is one more example of the special, unappreciated talent of Maureen O’Hara, who never was quite regarded as a top rank a movie star, as lovely and strong an on-screen presence as she was. Her ability to anchor great movies while never dominating them is the epitome of the “collaborative art” they always blather about during the Oscars, but which is seldom truly honored.  O’Hara was the female lead in four genuine classics: “The Hunchback of Notre Dame,” “The Quiet Man,” “How Green Was My Valley,” and “Miracle on 34th Street.” She also starred in the original “The Parent Trap” for Disney.

“Miracle on 34th Street” is an ethics movie in part because its artists committed to telling a magical story and charming audiences by working as an ensemble selflessly and  efficiently. John Payne, as the idealistic lawyer in love with Maureen, is never flashy, just completely convincing. One reason may have been that, as he told an interviewer once, the role of Fred Gaily perfectly matched his own ideals and beliefs.  This is the magic of performing talent: they make audiences suspend disbelief because they seem to believe in the story and characters too. The director,  George Seaton (who also directed “Airport,” which is NOT an ethics movie), also wrote the script that won him an Oscar. He cast his movie brilliantly, and making the correct but bold decision to stick with a matter-of-fact, realistic, unadorned style that keeps the story grounded. There are none of the corny features or inexplicable gaffes in this film that make other holiday-themed classics inherently unbelievable, like the cheesy battlefield sets in “White Christmas” or the heavenly dialogues in “It’s a Wonderful Life.”

“Miracle on 34th Street” is, as I said at the start, about the importance of believing in good things, hopeful things, even impossible things. Today many of my friends, colleagues and associates are depressed and fearful of the future—their future, the future of the nation, even the future of the planet. (The planet will be fine…the rest? As Samuel L. Jackson says in “Jurassic Park, “Hold on to your butts.”) “Miracle on 34th Street” reminds us that wonderful things can happen even when they seem impossible, and that life is better when we believe that every day of our lives. Of course, some days are easier than others.

Never mind. As the Fairy Godmother in the musical version of “Cinderella” sings, “Impossible things are happening every day.” Continue reading →

What A Surprise! Unethical Ex-Trump Lawyer Michael Cohen Has An Unethical Lawyer

/ Jack Marshall / 8 Comments

I guess that should be “another unethical lawyer,” since Trump’s disbarred fixer was previously represented by Lanny Davis, who previously spun for the Clintons.

This, however, is funny: Cohen’s current lawyer, in arguing to a judge that court supervision of his client should be terminated now thatCohen is out of prison, included three imaginary cases in his filing last month.

“As far as the court can tell,” Manhattan federal judge Jesse M. Furman, wrote yesterday, “none of these cases exist.”

Given that Cohen is Cohen and among the most unethical people with a law degree in the country, suspicion immediately was sparked that he was behind his lawyer’s fantasies. But this is the era of nascent SkyNet, and unwitting lawyers and paralegals have already been caught using chatbots for legal research, to their sorrow. Last June, for example, a federal judge fined two lawyers $5,000 for putting their names on a legal brief containing made-up cases and citations concocted by aspiring lawyer ChatGPT. The fines were widely derided as insufficient, but judges traditionally are sympathetic when lawyers misuse technology that the judges don’t understand….at least the first time around.

So maybe Cohen’s lawyer was fooled by a bot. Another possibility is that Cohen’s lawyer, Cohen-like, just cheated. I have been told by many litigators over the years that they routinely find fake cases in their adversaries’ briefs, memos and motions.

Furman has ordered Cohen’s attorney to provide copies of the three mystery decisions within a week, or provide a sworn declaration explaining “how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.”

Given the client, this story is as perfect a candidate for a Nelson as I could imagine.

Meatball’s Lawyer’s Infuriating Excuse For Her Client’s Role In Philly’s Looting Spree: Yes, It’s Unethical, But Not For The Reason You Might Think

/ Jack Marshall / 6 Comments

[Unlike the previous post, I remembered to attach the statement I’m writing about in this one. The Bowman update now has the missing information, thanks to Old Bill who reminded me this morning that I’m a moron ]

Following close on the metaphorical heels of Rep. Bowman’s ridiculous excuse for setting off a fire alarms to delay a vote in Congress yesterday (‘Oh THAT’S what a fire alarm looks like! Who knew?’) comes the equally ludicrous statement of Jessica Mann, the criminal defense attorney for Dayjia Blackwell who represents the 21-year-old Philadelphia “influencer” known as “Meatball.”

Blackwell was arrested and charged with burglary, conspiracy, criminal trespassing, rioting, criminal mischief, criminal use of communication facility, receipt of stolen property and disorderly conduct. This seems fair, as she not only livestreamed the destructive rioting and looting that took place for two days in Philadelphia last week, but encouraged her fans to participate, and took part in the crime spree herself, announcing what she had stolen in the video feed. Then, after her arrest, she begged her fans to donate money for her bond (she told her 196,000 followers, “All I want to do is go treat myself” and plugged her Cash App handle) then quickly had T-shirts, hoodies and other items made using her mugshot above— and thanks, Donald Trump, for creating this obnoxious new trend. Those are selling briskly. “Remorse” does not seem to be part of her defense—-nor innocence, since she’s on video doing everything she’s charged with.

Despite all this, lawyer Mann posted on Instagram…

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An Invitation To Be An Unethical Lawyer…

/ Jack Marshall / 7 Comments

Just as I was preparing yesterday for today’s 3-hour legal ethics CLE seminar (which, coincidentally, contained a section about the unsettled status of lawyers using artificial intelligence for legal research, writing and other tasks in the practice of law), I received this unsolicited promotion in my email:

Let’s see: how many ways does this offer a lawyer the opportunity to violate the ethics rules? Unless a lawyer thoroughly understands how such AI creatures work—and a lawyer relying on them must—it is incompetent to “try” them on any actual cases. Without considerable testing and research, no lawyer could possibly know whether this thing is trustworthy. The lawyer needs to get informed consent from any client whose matters are being touched by “CoCounsel,” and no client is equipped to give such consent. If it were used on an actual case, there are questions of whether the lawyer would be aiding the unauthorized practice of law. How would the bot’s work be billed? How would a lawyer know that client confidences wouldn’t be promptly added to CoCounsel’s data base?

Entrusting an artificial intelligence-imbued assistant introduced this way with the matters of actual clients is like handing over case files to someone who just walked off the street claiming, “I’m a legal whiz!” without evidence of a legal education, a degree, or work experience.

On the plus side, the invitation was a great way to introduce my section today about the legal ethics perils of artificial intelligence technology.

More On The Fake Defendant Ploy

/ Jack Marshall / 4 Comments

Yesterday’s post about the lawyer facing disciplinary charges for secretly having someone else pretend to be her client in a hearing that would involve an alleged victim of a hit-and run identifying the defendant in court sparked references to Perry Mason and “Better Call Saul’s” central unethical lawyer using the same trick. I’ve also included a discussion of this tactic in my ethics orientation presentation for new bar members for many years. As some commenters pointed out, in court IDs where the alleged perpetrator of a crime is sitting next to the defense attorney at defense counsel’s table are inherently unfair. Courts have pointed this out too. The “fake defendant” ploy has been justified as avoiding that problem.

However, it isn’t nice to fool the judge. If a lawyer suspects that an alleged victim can’t identify his or her client and will point at anyone in the chair next to defense counsel, having someone who might resemble the defendant (or not) sit where the defendant would be expected to sit while the real defendant sits elsewhere in court might be permitted, but the judge has to be told about the plan and asked to approve it in advance. Not doing so almost guarantees a criminal contempt citation for the lawyer, maybe a mistrial, and eventual bar discipline. In addition, the lawyer cannot and must not refer to the fake defendant as his or her client by word or body language other than having the individual sitting at the lawyer’s table. Most jurisdictions have rules limiting who sits at counsel tables; that’s why Perry Mason’s ploy of using Della, his loyal legal secretary, to confuse the witness might have been at least legal in Los Angeles when he tried it.

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Ethics Quote Of The Week: Lawyer John Eastman On The Georgia Trump Indictments

/ Jack Marshall / 7 Comments

“I am here today to surrender to an indictment that should never have been brought.  It represents a crossing of the Rubicon for our country, implicating the fundamental First Amendment right to petition the government for redress of grievances.  As troubling, it targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide and which was attempted here by “formally challeng[ing] the results of the election through lawful and appropriate means.”  – An opportunity never afforded them in the Fulton County Superior Court. Each Defendant in this indictment, no less than any other American citizen, is entitled to rely upon the advice of counsel and the benefit of past legal precedent in challenging what former Vice President Pence described as, “serious allegations of voting irregularities and numerous instances of officials setting aside state election law” in the 2020 election.  The attempt to criminalize our rights to such redress with this indictment will have – and is already having – profound consequences for our system of justice. My legal team and I will vigorously contest every count of the indictment in which I am named, and also every count in which others are named, for which my knowledge of the relevant facts, law, and constitutional provisions may prove helpful.  I am confident that, when the law is faithfully applied in this proceeding, all of my co-defendants and I will be fully vindicated.”

John Eastman, respected conservative legal scholar, lawyer, law professor and former Dean of Chapman University Law School, as he surrendered last week to authorities on charges in the Georgia case alleging an illegal plot to overturn the Trump’s 2020 election loss.

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Now THESE Are Unethical (California) Lawyers…

/ Jack Marshall / 3 Comments

Famed California trial attorney Tom Girardi was accused of stealing more than $18 million from clients; I was late to the metaphorical party, not covering the long-running ethics scandal until a month ago. (Sorry.)The State Bar of California had opened 205 disciplinary investigations in 40 years against Girardi, but he ducked accountability until the very end, in part because of pay-offs to bar staff.

One of several new regulations designed to prevent future Girardis is the Client Trust Account Protection Program. That requires the state’s lawyers to report whether they are responsible for client trust accounts, to provide basic account information, to complete an annual self-assessment, and to certify that they comply with ethics rules related to safeguarding client funds. The point, of course, is to stop lawyers from stealing from their clients. There are a lot of unethical practices lawyers get away with, but not taking proper care of client funds is supposed to be the third rail of lawyer misconduct.

The deadline for compliance with Client Trust Account Protection Program was April 3, 2023. Lawyers who failed to comply were fined $75 and had until June 30 to meet the regulations. Suspensions began in July. The results: 1,641 California lawyers have had their licenses suspended.

This is not a good sign.

Now THAT’S An Unethical Lawyer…And Maybe Two

/ Jack Marshall / 8 Comments

The Cleveland Plain Dealer reports that lawyer James Saunders, who previously worked for the Internal Revenue Service, violated the law by voting twice in both the 2020 and 2022 national elections. His public defender Scott Roger Hurley—he’s on the right above— is arguing that his client should be acquitted because it was “an accident.” “Mistakes do happen, accidents do happen,” he told the court.

Suuuuure.

Saunders voted in two separate locations in two separate states: Cuyahoga County in Ohio, and Broward County in Florida, and in both elections. “The fact that you do that in consecutive general elections I think takes ‘accident’ to the land of imaginary doubt, and not reasonable doubt,” the prosecutor said.

Ya think?

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Unethical Quote Of The Month (And Incompetent Elected Official): Vice-President Kamala Harris, Part 2: Harris Has Directly Violated California’s Legal Ethics Rules

/ Jack Marshall / Leave a comment

There is another aspect of Kamala Harris’s attack on the Supreme Court majority on Dobbs that bears noting.

In most jurisdictions, a lawyer may not publicly impugn the integrity of a sitting judge, and certainly not a Supreme Court Justice.

Here is the relevant rule in California, one of the jurisdictions with the duty to oversee her conduct. California’s position is that a member of its bar is subject to California rules no matter when the lawyer violates them.

Rule 8.2 Judicial Officials – State Bar of California:

(a) A lawyer shall not make a statement of fact that the lawyer knows* to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office.

Comment “To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized. Lawyers also are obligated to maintain the respect due to the courts of justice and judicial officers.”

If there is a California lawyer reading who wants to take a stand for the integrity of the ethics rules, a formal complaint to the would be apt and appropriate.

[The graphic above represents my assessment of the likelihood that the California Bar would ever enforce its rules against a good, abortion-loving Democrat for attacking the U.S. Supreme Court.]