Now THAT’S An Unethical Lawsuit!

"All right, sir---put down the sneakers and come out with your hands up..."

“All right, sir—put down the sneakers and come out with your hands up…”

Eastern Oregon Correctional Institution inmate Sirgeorgio Clardy should probably forget his aspirations of becoming a jailhouse lawyer, if his first effort is any indication.

Sirgiorgio, an aptly named pimp, is in stir because, among other things, he brutally stomped the face of a john who was trying to leave a Portland hotel without paying Clardy’s prostitute. Jurors found him guilty of second-degree assault for using his Air Jordans as a dangerous weapon to beat the john’s face to a pulp. Now the 26-year-old pimp turned prisoner turned pro se litigant has filed a $100 million lawsuit against Nike, the maker of the Jordans, claiming the shoe manufacturer shares responsibility for the assault that was among the crimes that drew him a 100-year prison sentence. (The jury also found him guilty of robbing the man he beat and  beating the 18-year-old girl he forced to work as his prostitute. This is not, I think it is safe to say, a nice guy.)

Clardy’s creative lawsuit claims Nike breached its duty to place a label on his athletic shoes warning purchasers that they could be used as a dangerous weapon, because, I guess, the evil shoes made him do it. Or, in the alternative, he had no idea that repeatedly slamming his foot down on a man’s head would do any harm. Or something. Basically, he’d just really like a hundred million bucks, and either doesn’t know, or doesn’t care, that he’s making a travesty of the justice system.

I am confident that there is literally no chance such a lawsuit goes to trial; if there is, I am through defending the legal system for good. This is a textbook frivolous lawsuit if brought by a real lawyer, rather than an unrepentant, violent, non-too-swift pimp.  The legal ethics rule that makes such monstrosities an official ethical violation, Rule 3.1, says that…

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Continue reading

The Fifth Annual Ethics Alarms Awards: The Worst of Ethics 2013 (Part Two of Three)

Snowden

The Ethics Alarms review of a truly disheartening year in ethics continues with fallen heroes, ficks, fools and follies with Part Two of the 2013 Worst of Ethics awards….and there’s one last section to come. Be afraid..be very afraid:

Fallen Hero of the Year

Edward Snowden, whose claim to civil disobedience was marred by his unwillingness to accept the consequences of his actions, whose pose as a whistle-blower was ruined by the disclosure that he took his job with the intention of exposing national secrets, and whose status as a freedom-defending patriot lies in ruins as he seeks harbor with not only America’s enemy, but a human rights-crushing enemy at that. The NSA’s over-reach and mismanagement is a scandal, but Snowden proved that he is no hero.

Unmitigated Gall of  The Year

Minnesota divorce lawyer Thomas P. Lowes not only violated the bar’s ethics rules by having sex with his female  client…he also billed her his hourly fee for the time they spent having sex , a breach of the legal profession’s rule against “unreasonable fees.” Yes, he was suspended. But for not long enough…

Jumbo Of The Year

(Awarded To The Most Futile And Obvious Lie)

Jumbo film

“Now, if you had one of these plans before the Affordable Care Act came into law and you really liked that plan, what we said was you can keep it if it hasn’t changed since the law passed.”

—–President Obama

2013 Conflicts of Interest of the Year Continue reading

“Jack Reacher” Ethics, Or Why It’s No Fun Going To Movies With Me

Jack ReacherI thought the Tom Cruise action film “Jack Reacher” would be a good way to escape from an aggravating day at the ethics grindstone, but no. It was rapidly apparent that this would be one of these movies with a sociopathic vigilante hero—Reacher (Cruise) is kind of a cross between Steven Segal and Billy Jack, summarily executing bad guys and completely uninterested in nuances like trials. The character, from the pen of British writer Jim Grant, is supposed to be 6’5″ tall and weigh about 250, so having the diminutive Cruise play him is a bit like having Danny DeVito play Fezzik in “The Princess Bride.”

The main annoyance was the typical persistent misrepresentation of legal ethics, especially the attorney-client privilege. Reacher is dark, free-lance, drifting Mr. Fix-it, and he is engaged by lawyer Helen Rodin as an investigator to prove her client, an ex-military sniper who is being prosecuted by her father, the DA, for apparently gunning down five random innocent victims in a shooting spree, is something more than a mad dog killer. In their initial conversation about the case, Cruise asks if what he is telling her is privileged. She assures him that it is, but the sequence is misleading, for Reacher and for the audience. Continue reading

The Fifth Annual Ethics Alarms Awards: The Worst of Ethics 2013 (Part One)

This is the first installment of the Worst.  It says something, and not something happy, that this segment of the year-end awards are more than twice as voluminous, and far more competitive, than the “Best” of 2013 ethics. Well, nobody said it would be easy….

Ethics Train Wreck of the Year

trainwreck

Obamacare, a.k.a Affordable Care Act. This is quite an achievement, as there were at least two other three Ethics Train Wrecks rolling along in 2013 that would have been easy victors in a less horrible year. One of them, The Trayvon Martin- George Zimmerman Ethics Train Wreck, was last year’s winner, and still wreaked ethics carnage across the culture, thanks to Zimmerman’s trial (which never should hev been brought), the biased media coverage, the incompetent prosecution, the inept judge, and then afterward, the ignorant and/or racially motivated attacks on the jury for doing its job well and fairly against overwhelming odds. Yet as bad as this hangover from 2012 was, the Sandy Hook Ethics Train Wreck was arguably even worse. The news media decided to go Soviet and abandon all pretense of objectivity, essentially becoming an Obama Administration propaganda tool for gun control. Elected officials lied their heads off; so did the aroused NRA. Gun owners talked and behaved like they were about to be Gulaged. Legislators shamelessly used the grief of victims to stampede public opinion; children became props; fake statistics were everywhere; brain-damaged Gabby Gifford was programmed to read child-like messages as if they were the conclusions of research papers. The President’s total lack of political leadership skill again came front and center, then, when he had failed to do what he promised to do, the opposition was vilified by celebrities like Jim Carrey, who called them murderers and worse.

But the Affordable Care Act lapped both of these. It revealed itself to be a five-year long train wreck that just took a break after an earlier stretch where the bill was passed without due diligence by its supporters and using a cynical by-passing of due process. A Presidential lie intentionally devised to deceive the public was repeated for the five-year span, and then exposed when the law began to take affect….but not before the law inspired Republicans to force a reckless and irresponsible shut-down, a mini-train wreck within the train wreck.  The website debacle was initially spun by the news media (not working worth a damn isn’t a “glich”), then the evidence of near criminal ineptitude became impossible not to report. The indisputable evidence that the President of the United States had sold a program under false pretenses came to light, prompting dozens of politicians, bloggers, pundits and reporters to destroy their credibility forever (I hope) by desperately trying to either rationalize the lie ( “the ends justify the means”), call it something other than what it was (The New York Times’ disgraceful “incorrect promise” was one low point), or simply deny that it was a lie at all (Democratic Chair Debby Wasserman Schultz, setting a new low for personal dishonesty, itself an achievement in her case). Then, when the public pressure and political fall-out became unbearable. the President just began amending the provisions of his own law on the fly, except that it was the nation’s law, and it’s unconstitutional to do that—this, after the mantra from Democrats and the news media during the shut-down debate was that the ACA was “settled law.”  HHS Secretary Sibelius misled Congress, the White House denied that her stated goals were goals once it was obvious they wouldn’t be met; and nobody was held responsible for yet another Obama Administration debacle. And there’s a lot more, with the train wreck still moving at top speed.

Fraud of the Year

Iowa State University biomedical sciences assistant professor Dong-Pyou Han, who resigned after admitting he tainted blood samples to get desired outcomes in research animals, allowing him to claim a break-through in the effort to develop an AIDS vaccine. The National Institutes of Health had awarded Han’s research team $19 million in multi-year grants.

Incompetent Elected Officials of the Year

  • Elected Body (National): House Republicans, who staged a wholly useless, expensive and damaging government shut-down on “principle,” without ever articulating what that principle was sufficiently for anyone responsible to agree with them. Runner-Up: The California House Legislature, which passed a law allowing illegal aliens to practice law.
  • National Elected Official:  President Obama.  From being incapable of working with Congress, to refusing to fire incompetents, to not knowing what was going on in his own administration, to drawing red lines he wasn’t willing to defend (and then advocating killing people just to show he was willing to defend them), to undermining the trust and faith in both his office and himself by uttering unequivocal lies, President Obama had one of the worst years of self-inflicted miscalculations, errors, failures and reversals of any U.S. President in history. I’m sorry to have to say it, but it’s true.
  • Local Elected Official: Storey County (Nevada) Assemblyman Jim Wheeler (R). Wheeler told a group that if his constituents demanded it, he would vote (with a heavy heart)  to reinstate slavery, as he felt doing so would be his duty as a representative. Runner-up: Maryland House of Delegates Member Don Dwyer (R), who after a drunk driving and drunk boat piloting episode, the latter injuring several people, blamed his conduct in part of feeling betrayed over his colleagues approval of gay marriage in Maryland.

Sexual Harasser Of The Year Continue reading

Dear Legal Profession: How Can We Respect And Trust You When You Police Yourself Like THIS?

Justice_broken3

I’ve been defending my profession a lot here lately, but I also recognize that there is a very good reason why such incidents as the surprisingly generous sentence in the “Affluenza” case and the drug court judge who suffered an alcoholic relapse on the bench are wrongly interpreted as proof of inequities and double standards in the legal system. The reason is that those who oversee the system do inexplicable things that appear to the outside world as not only a lack of integrity but also the apparent inability to realize how such conduct undermines the public trust.

Both of these recent news stories are cases in point:

I. The Imaginary Government Lawyer

In 2012, the Nebraska state supreme court disbarred lawyer David Walocha for not paying his bar dues and proceeding to practice law for 13 years with a suspended license. At the end of 2013, the District of Columbia Bar had to decide what to do with former Justice Department attorney Laura Heiser, who practiced 21 years with a suspended license in the District. What was her punishment? She received an informal admonition, which is the least severe form of disciplinary action.  Continue reading

Comment of the Day: “Ethics Observations On The “Affluenza” Sentence”

 

I don't think this is the same "Theodoric of York" who authored this excellent "Comment of the Day"...at least I hope it isn't.

I don’t think this is the same “Theodoric of York” who authored this excellent “Comment of the Day”…at least I hope it isn’t.

The heat/ light ratio in the comments to the post about the controversial sentencing of a 16-year-old scofflaw in Texas has been depressing, but among the rational, measured, well-considered and thought-provoking responses by those who actually read the post, this one, by new commenter Theodoric of York,  is a winner. His politeness is especially appreciated among all the posts calling me names that would shock my mother. I hope he comes again, and often.

I’ll have some further comments after he’s had his say. Meanwhile, here is Theodoric of York’s Comment or the Day on the post Ethics Observations on the “Affluenza” Sentence.

Disclaimer the first: I’m not an attorney, nor do I play one on TV. Disclaimer the second: I have no knowledge of Texas law regarding juvenile justice, nor do I have any knowledge of Texas state law regarding negligent vehicular homicide, nor do I have any real knowledge of that state’s laws regarding DUI, homicide, manslaughter or murder. And yes, I know the difference between murder and negligent vehicular homicide, and I am also aware that young Mr. Couch is a minor. Disclaimer the third: I have not read Judge Boyd’s actual ruling, nor have I seen actual video of her sentencing. If someone could provide a link to that (if a link exists), it would be appreciated. That being said: Continue reading

“Affluenza”: The Podcast

inside-maine-podcasts-620x400

Arthur King of WGAN newsradio engaged me in a segment of his show “Inside Maine” this afternoon.

You can, if you are so inclined, hear it here.

Much thanks to Arthur for the chance to chat with him about these issues.

Ethics Observations On The “Affluenza” Sentence (And None Of Them Involve Criticizing The Judge)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever's photo that was.)

Judge Boyd, being judged. (The earlier photo posted was NOT Judge Boyd. I apologize to the judge, readers, and whoever’s photo that was, for the error)

The newsmedia and blogosphere are going bonkers over the sentence given to Ethan Couch, the 16-year-old Texan who pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury. He had a blood-alcohol level three times the legal limit (Couch had stolen beer from a Walmart), plus traces of Valium in his system, when he lost control of  the Ford F-350 pick-up he was driving (over the speed limit) and slammed into four people trying to fix a disabled car on the shoulder. They were killed; two of his seven passengers were critically injured. Prosecutors proposed 20 years in jail as the proper punishment for Couch, but his attorneys tried a novel defense: they had experts testify that their client suffered from “affluenza,” a malady caused by his rich, amoral, neglectful parents, who taught him (the theory goes) that there are no consequences for anything, if one has enough money.

Rejecting the prosecution’s argument, State District Judge Jean Boyd, presiding over the Fort Worth Juvenile Court, shocked everyone by sentencing Couch to only 10 years of probation—no prison time at all. The gist of the media outrage: once again, the life philosophy of Couch’s sociopathic parents is validated. The rich get away with everything: a poor, minority defendant who engaged in the same conduct would have been imprisoned. This is the injustice of the criminal law system in America.

Maybe. But let’s not get ahead of ourselves.

I think the judge, despite what we are hearing from the media, may have done her job well.

Continue reading

The Outrageous, Offensive, Ethical Murder Defense

"OK, granted, my client killed her. That's wrong. But shouldn't he get some credit for the fact that her loss is a net gain for society?"

“OK, granted, my client killed her. That’s wrong. But shouldn’t he get some credit for the fact that her loss is a net gain for society?”

The evidence at trial showed that Rasheen Everett arrived at Amanda Gonzalez-Andujar ‘s Queens ( New York) apartment on March 27, 2010, and almost 24 hours  later, left carrying two bags filled with the prostitute’s belongings including her camera, laptop and cell phone.. Her lifeless body was later discovered, covered in bleach. The judge pronounced the defendant, who showed no remorse during the proceedings, “a coldhearted and violent menace to society.”  Everett apparently killed Amanda after discovering that she was transgendered. She had solicited him over tbe internet.

Desperately arguing to keep Everett’s post-conviction sentence as light as possible (it turned out to be 29 years in prison), Queens defense attorney John Scarpa made about as repugnant an agrument to Queens Supreme Court Justice Richard Buchter as the imagination could devise. “A sentence of 25 years to life is an incredibly long period of time, judge,” Scarpa protested. “Shouldn’t that be reserved for people who are guilty of killing certain classes of individuals? Who is the victim in this case?” he asked. “Amanda was engaged in a life of prostitution, life of drug use, HIV exposure. She was having sex with other individuals knowing she had the chance of spreading diseases….Is the victim a person in the higher end of the community?” he asked.

This theory would have ensured Jack the Ripper, had he ever been caught, a work release program, perhaps in a butcher shop. Continue reading

Cuomo Interviewing Cuomo? Of Course It’s A Conflict!

The interesting question isn’t whether CNN’s Chris Cuomo blithely interviewing the Governor of New York Andrew Cuomo—who happens to be his brother–is a conflict of interest and an example of unethical journalism. Of course it is. The interesting question is what it tells us about the state of U.S. journalism that such an interview could even occur.

Here are two prominent provisions of the Society of Professional Journalists Code of Ethics, requiring that ethical journalists…

  • “Avoid conflicts of interest, real or perceived.”
  • “Remain free of associations and activities that may compromise integrity or damage credibility.”

Is there any question that a CNN anchor man interviewing his brother regarding anything whatsoever violates both of these? Real or perceived? Compromise integrity or damage credibility? Seriously?

Cuomo the Anchorman was interviewing Cuomo the Governor regarding the recent train accident. Conflict? Sure: the journalist is supposed to have only one duty, and that is to his audience. But Cuomo the Anchorman obviously has another, potentially confounding duty of loyalty to his interview subject, and this he must not have. It calls into question his willingness to probe and, if the facts warrant it, to ask uncomfortable questions of his subject. If Chris Cuomo’s duty to his audience unexpectedly requires him to breach his loyalty to his own brother, which will he choose? We don’t know. Perhaps Cuomo himself doesn’t know. He was obligated not to place himself in a situation where the question even needed to be asked.

The various defenses being offered are, I have to say, misguided and disturbing. The usually sensible Joe Concha of Mediaite writes that the controversy is “much ado about nothing.” His reasons are … Continue reading