legal ethics

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 →

The Deadliest Rationalization Of All?

/ Jack Marshall / 9 Comments

woodys excuse

All rationalizations can be deadly and have been. History and human nature teach us, however, that “Woody’s Excuse,” #22 on the Ethics Alarms Rationalization list, can hold its own with any of them when it comes to tallying up pain, ruined lives, and death. This is “The heart wants what the heart wants,” the comedian, actor and acclaimed director’s personal pass for his seducing and marrying a girl who was, in essence, his adopted daughter.

Today the Washington Post carries the grim final act of a story so terrible that it crosses into the realm of black humor. A veteran Labor Department lawyer, married, with an impeccable record, was found dead in his cell after being arrested and charged with violently attacking a co-worker with whom he had become infatuated. The story is full of weird U-turns of phrase; for example, the judge called the lawyer, charged last week with first-degree burglary while armed and third-degree sexual assault relating to the June 5 attack, a “wonderful person in most respects”—-that is, “most respects” beside the implications of his breaking into a woman’s home, punching her in the face (or spraying her with mace,) then trying to incapacitate  her with a stun gun, handcuffing her hands behind her back and knocking her to the floor. The victim was so badly injured that a plate had to be surgically implanted in her face.

Other than that, Judge, you’re right: he was a hell of a guy. Continue reading →

Inspector Generals, Intimidation, Integrity and The IRS Scandal

/ Jack Marshall / 18 Comments
IG J. Russell George. NOW I get it!

Treasury Dept. IG  J. Russell George. NOW I get it!

I certainly feel ignorant and foolish about this. Silly me: I always thought that inspector generals, those charged with flagging and investigating incompetence, corruption and wrongdoing in our government, were independent and objective, and beyond political influence from above. Why did I think that? I thought that because without such independence, what we may be getting in these supposedly honest and thorough IG reports is not the whole truth and nothing but the truth, but rather what the particular IG thinks he or she can get away with and still keep the job. Was I the only one who didn’t know this?

Thus the popular shrugging talking point by Obama Administration defenders on the partisan payroll (Jay Carney, White House staff, enabling members of Congress, Axelplouffe, etc.) and off of it (the news media) that the IRS inspector general J. Russell George “investigated” and found no political influence in the decision to target and impede conservative organizations is even more dishonest that I originally thought. That oft-repeated statement was always misleading spin, because George, by his own admission, only performed an audit, which is supposed to be the prelude to a full investigation. Now, however, a former IG has explained that inspector generals who displease the Obama high command risk losing their jobs. (Presumably this has always been a peril of the IG job, so I am not suggesting that this unacceptable state of affairs is unique to this administration.)

In his testimony before Congress, George said that he never was able to determine who, if anyone, directed the ideologically-based scrutiny, because no one would tell him. Former IG Gerald Walpin writes, Continue reading →