legal ethics

Unethical Quote Of The Week: Attorney Lee J. Danforth

/ Jack Marshall / 22 Comments

“If this trial prevents one little girl or one mother or father from reporting suspected abuse then this is profoundly sad for our society.”

 —-Lee J. Danforth, attorney,making a lightly veiled argument that his clients should suffer no penalties for ruining a teacher’s career and reputation with a false accusation of “inappropriate touching,” because such penalties would discourage future legitimate accusations.

"Oh, you all were lying when you got John Proctor hung as a witch? Well, that's okay---we wouldn't want to punish you, because it might discourage a real victim, in case there really IS a witch one of these days...

“Oh, you all were lying when you got John Proctor hung as a witch? Well, that’s okay—we wouldn’t want to punish you, because it might discourage a real victim, in case there really IS a witch one of these days…

Mr. Danforth was defending a San Jose, California family in a defamation suit by a former Catholic school physical education teacher, John Fischler,  who claimed that they methodically destroyed his reputation with a campaign of rumors and lies, led by his main accuser, an 11-year-old girl right out of “The  Children’s Hour” or “The Crucible.” Danforth is a lawyer (Danforth was also the name of the judge in the Salem witch trials, speaking of “The Crucible” and false accusations) , and it is sometimes necessary, and thus ethical, for lawyers to make otherwise unethical arguments in the zealous representation of their despicable clients. Remember, legal ethics does not allow Danforth to temper his advocacy out of concern for future, genuine victims, unlike his clients. They are not his concern, and even bad people have a right to vigorous legal representation. Nonetheless, his statement embodies an unethical rationalization for letting diabolical and vicious false accusers escape the just consequences for their actions. Continue reading →

The Unprofessional Cause Of Unprofessional Lawyer Brian Zulberti

/ Jack Marshall / 38 Comments

Brian ZYoung Brian Zulberti may be nice guy. He may even be a competent lawyer, though the chances of his being able to demonstrate that are diminishing daily. Nevertheless, his quixotic and misguided, and dare I say it, really stupid, quest to show that professionalism, judgment and character are not properly relevant to the practice of law is an exercise in hubris that must fail, deserves to fail, and of course, will fail, leaving him to pick up the pieces of fifteen minutes of media fame purchased at the price of a reputation. It looks like he’s having fun, and that’s something, I guess. Ten years from now, I doubt that he’ll think it was worth it.

Shortly after passing the Delaware Bar, Zulberti, a 2009 law school grad,  emailed the entire Bar membership asking for a job. In lieu of his résumé;  he attached a photo of himself in a Villanova Law muscle shirt that would be more at home on a dating site for the shallow. The web also contained his half-naked selfies, and various websites with varying motives picked up the story. Interviewed on YouTube, Zulberti proclaimed that being true to himself was more important to him than getting hired, and that he wasn’t about to change his Facebook privacy settings to portray himself as a traditional, dignified, applicant for legal work.

Let me pause here to say that in many ways I sympathize with Zulberti. Continue reading →

Encore: “The Ethics of Letting a Lying Defendant Testify”

/ Jack Marshall / 11 Comments
"Objection! The defendant's pants are clearly on fire!"

“Objection! The defendant’s pants are clearly on fire!”

I’m in Ohio today, talking about legal ethics with a large law firm, and the discussion there turned to the difficult problem of the lying criminal client. Here is a post on the topic from the early days of Ethics Alarms, slightly updated, and the disturbing thing is that we are no closer to finding a satisfactory and ethical solution to the problem.

What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading →

Online Review Ethics: Yelp And The Law Firm

/ Jack Marshall / 7 Comments
"...and so do our own employees!"

“…and so do our own employees!”

Is it professional misconduct for members of a law firm or the non-lawyer assistants for which they are responsible to post fake reviews of their work to a consumer website? I would argue that could be: it is almost certainly deceptive advertising, which is prohibited to a greater or lesser degree in all state ethics codes, and it is dishonest and misleading communications of the sort that has drawn discipline for some attorneys in other circumstances. Whether or not such a slimy, if common practice (at least among other professions, like wrtiting) is sufficient to raise “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” will be determined by lawyers themselves, and you would be amazed at what many of them  don’t consider sufficient to do this. I am admittedly extreme on this issue: I don’t think lawyers should lie, and take a dimmer version of even harmless deception than most in my field. This is profession that depends on trust, and the more someone lies—I don’t care about what—the less trustworthy they are.

These issues arise because the online consumer site Yelp appears to have caught employees of the law firm The MacMillan Group posting fake positive reviews about itself, on behalf of fictional clients. Continue reading →

Comment of The Day…And An Ethics Quiz, Too! : “Ethics Quiz: The United Airlines Give-Away”

/ Jack Marshall / 15 Comments
"Oh, this piece of junk? Yeah, who knows who its supposed to be---some guy named Veal or Beale or something painted it, I think. It's been in the attic. Make me an offer!"

“Oh, this piece of junk? Yeah, who knows who it’s supposed to be—some guy named Veal or Beale or something painted it, I think. It’s been in the attic. Make me an offer!”

The Ethics Quiz regarding whether or not it was unethical to take full advantage of United Airlines’  accidental fire sale on tickets spawned several good hypotheticals, including this one, from Tyrone T., an occasional Ethics Alarms commenter who, I happen to know, thinks about these matters as his occupation. I know the answer to this one (I’ve seen it before), so I’ll hold off until you’ve thought about it a while.

Here is Tyrone T.’s Comment of the Day on the post “Ethics Quiz: The United Airlines Give-Away”:

“So, if you are hired by your client to find the cheapest fare, can you act ethically and refuse to take advantage of the error? Consider the following:

“Alexander Mundy is a lawyer and an acknowledged expert in American painting. He has several clients who regularly retain him to negotiate the purchase of museum quality art. Recently, a client hired Mundy to negotiate the purchase of a portrait of George Washington as a young man.

“The client explained, ‘I saw it on a house tour five years ago and tried to buy it then, but the woman who owned it said it was a family heirloom and wasn’t interested in selling. I heard that she died recently and her husband is having an Estate Sale. You have authority to purchase the painting for up to $500,000.’

“Mundy goes to visit the old widower and asks whether he would be willing to sell ‘that picture of the young man there.’ Continue reading →

Don’t Blame The Lawyers: The Ethical, Unethical, NFL Settlement

/ Jack Marshall / 5 Comments
Watch your heads!

Watch your heads!

When is a $765 million dollar law suit settlement “chump change”?  This is when, reading the reactions to the NFL’s announcement last week of its agreement with former players who sued the league over crippling  concussion injuries sustained while playing professional football:

  • It is inadequate when half of that will be ladled out over seventeen years, and all of it will be reduced by the lawyer’s fees, to be determined but unlikely to be less than a third.  That means that each former player (or his heirs and family) will get, at most, $114, 000 or so.
  • It is inadequate when the league paying the damages will split the payment among its 32 franchises, making each responsible for paying $24 million over 20 years, which comes to about $1.2 million a year. Remember that projected NFL revenues this season are $10 billion, and the NFL gets more than $40 billion on top of that through 2022, thanks to media rights.

In other words, chump change.

Or, if you prefer, “I gave my brain, mind and health to the NFL, and all I got was this lousy settlement.” Continue reading →

Now THAT’S An Untrustworthy Legal Secretary!

/ Jack Marshall / 6 Comments

 

"Hey! That's Barbara! See you at wok, Monday, Barbara!"

“Hey! That’s Barbara! See you at work, Monday, Barbara!”

The Connecticut Law Tribune reports that Barbara Kalpin, a former legal secretary at the Waterbury law firm of Grady & Riley,  has been charged with stealing more than $1 million while forging dozens of checks and documents.

She was, the story says, “a longtime and trusted employee at the firm.” It seems the firm’s trust was misplaced.  Investigators have discovered that she spent about $500,000 over the last few years at an off-track betting venue in New Haven for horse and dog racing. According to police, she wrote 93 checks from a client fund that she managed, among other things using the money to pay credit card bills and to finance multiple mortgages on her home. Kalpin is facing two counts of first-degree larceny and 112 counts of second-degree forgery, and is awaiting arraignment next week.

Connecticut’s bar, like every that of every other state, imposes a strict obligation on attorneys to supervise non-lawyers who are placed in positions of assisting in legal work and the handling of client matters: Continue reading →

Here’s Something Else For Unemployed Law Grads To Worry About

/ Jack Marshall / 16 Comments
Damocles, Attorney at Law

Damocles, Attorney at Law

A legal ethics specialist with the D.C. Bar, speaking at the Bar’s mandatory ethics course, opined that a lawyer’s student loan debt could create an irresolvable conflict of interest preventing him or her from taking on certain cases, at least while complying with the ethics rules

I never thought about that before, but horrors!…he’s right! Continue reading →

The Persecution of Paul Ogden, The Justin Carter Of Legal Ethics

/ Jack Marshall / 7 Comments
When you become a lawyer, Justin, don't do it in Indiana. Ask Paul Ogden why.

When you become a lawyer, Justin, don’t do it in Indiana. Ask Paul Ogden why.

He hasn’t been jailed like his teenaged, online-gaming counterpart, but Indiana attorney Paul Ogden is also facing government sanctions for what was an unequivocal First Amendment communication. In Ogden’s case, he may lose his right to practice law. His offense is insulting a judge…in a private e-mail.

Ogden represented a client before Superior Court Judge David H. Coleman, and was not happy with Coleman’s handling of the case. Neither were Coleman’s supervisors, who removed Coleman from the case for failing to act within an appropriate period of time, under the so-called “lazy judge” act.  Attorney Ogden, who also blogs about politics, commented to a fellow attorney in a private email that Coleman “should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.” 

Somebody, perhaps the original recipient of the e-mail, forwarded it to the judge (lawyers can be a back-stabbing bunch), and the judge, insulted, demanded an apology. Ogden refused (lawyers can also be stubborn and have a tendency to stand on principle even when it is going to get them in trouble). Because Ogden declined to grovel, Judge Coleman invoked Indiana Rule of Professional Conduct 8.2 and filed a grievance against him to the Indiana Attorney Disciplinary Commission. The Rule, which is essentially identical to the American Bar Association version, prohibits a lawyer from… Continue reading →

A Prosecutor Lies, But It’s For A Good Cause…

/ Jack Marshall / 7 Comments
Yes, Jack McCoy would probably be disbarred in the real world...

Yes, Jack McCoy would probably be disbarred in the real world…

Aaron Brockler, an assistant Cuyahoga County (Ohio, including Cleveland) prosecutor, was fired last month for  using a false identity on Facebook  to try to influence the testimony of  defense witnesses in a homicide case.

He initiated Facebook discussions with two women listed by the defense as alibi witnesses in a murder prosecution. Brockler pretended to be a former girlfriend of the defendant who had a child fathered by him, and urged the witnesses not to “lie for him.”  County Prosecutor Timothy J. McGinty fired Brockler, who by my count violated at least Ohio legal ethics rules 3.4, 3.7, 3.8, 4.1, 4.2 and 8.4, (tampering with evidence, suborning perjury, becoming a necessary witness, prosecutorial misconduct, misrepresentation of facts, contact with a person represented by counsel and dishonesty) and perhaps some others. Prosecutors are not allowed to tamper with defense witnesses, or try to influence any witness testimony. They are not permitted to contact represented parties in connection with a prosecution, unless the lawyers are involved. They are not permitted to lie or pose as someone they are not over the internet. They are not permitted to make themselves witnesses in their own cases. Brockler wasn’t just fired for cause, he was fired for multiple causes, any one of which would have justified kicking him out the door. Continue reading →