legal ethics

Now THIS Is Incivility!

/ Jack Marshall / 11 Comments
"Thank you, counselors. We will proceed to fucking closing statements."

“Thank you, counselors. We will proceed to fucking closing statements.”

I just saw a  local Boston TV ad for Ace Tickets. The slogan at the end was “Sit your Ace down!” So clever! Just throw gratuitous vulgarity into a commercial during a baseball game, doubtlessly viewed by many children, because it’s inherently amusing. The message is that vulgarity is cool, clever and acceptable. Other messages in the media, both in advertising and in pop culture, convey the same permissive standards regarding obscenity. Over on the Drudge Report, a much-admired news aggregator for  political junkies, especially on the right, no mention of Anthony Weiner’s annoying candidacy for Mayor of New York is made without a cheap “weiner” joke. Today, Drudge noted that Weiner was “inching up” in the polls. Get it? HAR!  Just under that “gag,” the news that men favored Weiner in polling was headlined “Male Enhancement.” Soooo witty!  The U.S. is being transformed into one huge junior high school. After growing up in such a vulgar, undignified, sleazy environment, the next generation won’t be prone to inadvertently use words like “fuck” and “shit” in public forums such as live award shows and TV interviews, like our current politicians, newscasters and celebrities. They’ll just use them intentionally, all the time. Won’t that be cool? I’m sure David Letterman thinks so. Cool Dave had A.J. Clemente, he of uttering “fucking shit” on the airways in his debut as a news anchor, as a guest on his show. Dave suggested to A.J. that his ex-bosses were jerks to fire him. Good point Dave! A.J. was just ahead of his time. In a decade or so, “fucking shit” may be the sign-off of the next generation’s Walter Cronkite.

Maybe less than  a decade. Note this account, in a court opinion, of a lawyer’s conduct before a magistrate: Continue reading →

Is George Zimmerman Trying A Homer Simpson Strategy?

/ Jack Marshall / 27 Comments
The accused, pre-donuts.

The accused, pre-donuts.

Based on his appearance at today’s preliminary hearings for his murder trial, George Zimmerman has packed on a few pounds since he was arrested and charged with second degree murder in the death of Trayvon Martin. Might this be an intentional strategy dictated by his lawyer? If so, it would be reminiscent of the memorable episode of “The Simpsons” in which Homer decided to give himself the benefit of the Americans With Disabilities Act by eating himself into muu-muus. But would it be ethical?

The theory, I presume, is that the less threatening and mobile Zimmerman looks, the more plausible it will seem to the jury that he was not the aggressor in his fatal tussle with Martin, who, we heard today, the defense will try to portray as a violence-prone thug. This kind of maneuver exploits a structural defect in the jury system, aggravated by the now ridiculously extended justice process. Jurors can only think of a defendant and sometimes a victim as they look in the courtroom, when it is what they were like when the alleged crime occurred that matters. Years ago in the District of Columbia, a wily attorney defending a child molester who swore that his 13-year old victim had credibly presented herself as 18 managed to delay the trial for three years. It was enough time for the victim to get morphed by puberty hard, and she appeared on the stand not as the thin, immature child she was when she was sexually assaulted, but as an obviously sexually-mature young woman speaking in a attractively husky voice, whom one courtroom reporter described as looking at least 25. Her attacker was acquitted. This is considered excellent lawyering. (The prosecutor, who allowed the girl to wear a tight, low-cut dress and full make-up, was, in contrast, an idiot.) Continue reading →

The IRS Scandal Choice: Contrived Ignorance By The President Or Incompetentence By White House Counsel

/ Jack Marshall / 9 Comments
Unethical lawyer, or ethical pawn in an unethical plan.

Unethical lawyer, or ethical pawn in an unethical plan.

Media reports tell us that White House Counsel Kathy Ruemmler was told on April 24 that the IRS had improperly targeted tea party and other conservative groups, according to an Inspector General audit. She did not tell her client, President Obama, about the fact. [ UPDATE: Law professor and esteemed legal ethics authority Richard Zitrin correctly points out that Ruemmler’s client is the office of the President, not the President himself. So far, I have yet to be convinced that this changes the analysis below.]

There is no way to spin this that doesn’t look bad for either Ruemmler, Obama, or both. The news media has been typically inept in explaining this ethical point. If Ruemmler, on her own, decided to withhold the information to “protect” the President, she was violating her ethical duties, as well  as her duties to the President, his office, and the country. If she was following his directive in keeping him in the dark, then President Obama is guilty of the ethical misconduct of contrived ignorance, a device that is almost always accompanied by knowledge of wrongdoing and irresponsible leadership. Which was it? Continue reading →

A Side Benefit of the I.R.S. Scandal: Self-Identification By Dishonest Partisan Hacks

/ Jack Marshall / 21 Comments
You know better, Gov.

You know better, Governor.

I mentioned this once already, but it bears repeating: any spinner, excuser, minimizer or defender of the I.R.S. scandal who uses the “it was a Bush appointee” talking point has insulted your intelligence or impugned his own, as well as marked himself or herself as an untrustworthy hack. I’m taking names and making lists myself now, and it’s growing by the hour.

Yesterday I added Pennsylvania Governor Ed Rendell, whom I once believed had some integrity, and Donna Brazile. Today Richard Cohen, among others, joined the list. It really is shocking, and it’s increasingly more difficult to shock me. It is also ominous. Things we haven’t yet learned must really be ugly for such a transparently desperate excuse to be trotted out so early by people who almost certainly know what garbage it is.

Yesterday I heard Rendell literally drive Joe DiGenova, the former Attorney General, to apoplexy—Joe’s eyes were popping out of his head and I though he was going to fall over to the floor foaming at the mouth— by stating repeatedly that the I.R.S. fiasco “couldn’t be a conspiracy because a Bush appointee was in charge.” This is either unbelievably ignorant or despicably dishonest, and I suspect the latter. As I wrote in a previous post, Continue reading →

Ethics Quote Of The Day: Ken at Popehat

/ Jack Marshall / 3 Comments

“If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody’s reminding us that you have an obligation to know what you’re doing before you accept the client. Somebody should.”

—-Ken, the lead blogger/attorney/libertarian/ wit/ First Amendment champion at Popehat, summarizing the lessons of the Joseph Rakofsky saga. Rakofsky was a green D.C. lawyer ( he is still a lawyer, less green but sadder and wiser) who indeed did take a murder defense as his first trial, made an epic botch of it, and then launched a desperate defamation lawsuit at legal bloggers, like Ken, who had told his cautionary tale to the world with appropriate ire. The law suit was dismissed last week.

What's next for Joseph Radofsky? Maybe he'll run for President....

What’s next for Joseph Radofsky? Maybe he’ll run for President….

Competence is an ethical value, especially in the professions, but also in most pursuits. Taking on the responsibility of accomplishing a task creates a duty, and doing so without being justifiably certain that you will have the skills to do it is reckless and irresponsible.

Ken, an experienced and accomplished attorney whom I have consulted for his professional advice in the past, also knows that inexperience does have to be eradicated with experience, and a strict application of his statement in all cases would lead to a frustrating Catch 22. Every pilot has to take that first solo flight; every head surgeon has his first major operation; and Clarence Darrow had to take on that first murder trial before he could say with complete confidence that he knew exactly what to do. On a more basic level, any lawyer taking on a representation in a type of matter she has never handled before, such as drafting a will, will be, in  a sense, accepting a client before she knows what she is doing, because she hasn’t done it before. That’s okay, however: the ethics rules, as expressed in the American Bar Association’s Rules of Professional Conduct (in Rule 1.1) say its okay, as long as, by the time the task is underway, the lawyer is sufficiently competent: Continue reading →

Further Reflections On The Cheerleading Prosecutor (and an Ethics Pop-Quiz!)

/ Jack Marshall / 30 Comments
"By the way, counselor, nice work last Sunday..."

“By the way, counselor, nice work last Sunday…”

I wrote the post about Ina Khasin, the Fulton County assistant district attorney in the morning yesterday as I prepared for a morning ethics session for new D.C. lawyers, and had not made up my mind about whether there was or was not a legitimate “Cheerleading Prosecutor Principle” by the time I posted it. I returned to my keyboard late in the day to read the comments on the post, and finally had a chance to consider the issue carefully, benefiting from the varying perspective of the commenters. My conclusion is that for a prosecutor to indulge herself by moonlighting in a high-profile, frivolous and cognitive dissonance-generating activity like NFL cheerleading is not only weird (Ick!) but also irresponsible, and yes, unprofessional.

I’m pretty sure I’m right, too. Continue reading →

Ethics Dunce: National Journal Writer Matthew Cooper (And Boy, Am I Sick Of It!)

/ Jack Marshall / 31 Comments
Matt Cooper apparently thinks Clarence represented murderers because he LIKED murderers. That's not how it works, Matt.

Matt Cooper apparently thinks Clarence represented murderers because he LIKED murderers. That’s not how it works, Matt.

Matthew Cooper, like so many before him who should know otherwise, confounds the role of an attorney with the views of the individual serving as an attorney. This is a disturbing chunk of ignorance for a prominent journalist to pass on to the public, and as I have before, I am honor bound to point it out, and also to say: Understand what you’re writing about, journalists!  That’s one of your ethical duties.

In a National Journal piece about Ted Olson, who argued against Proposition 8 and for same-sex marriage before the U.S. Supreme Court, Cooper writes,

“While most folks were surprised by his support of gay marriage, I wasn’t. Yes, he was a conservative. But he had also defended the press as the longtime lawyer for the Los Angeles Times and in other First Amendment cases. He’d agreed to represent Tim Phelps, a Newsday reporter, in the Anita Hill case even if Phelps’s work was damaging to the conservative Clarence Thomas. He was conservative, but not reflexively so.”

Why is this old, basic and simple principle so difficult to grasp: a lawyer does not adopt his or her client’s views by virtue of representing them or advocating for them in court or the public square! The lawyer’s views are presumed to be irrelevant to the position he or she takes for a client. As the ABA’s Model Rules of Professional Conduct state (and legal ethics has held for centuries),

“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Continue reading →

Ethics Dunce: Nicollet County Attorney Michelle Zehnder Fischer

/ Jack Marshall / 13 Comments

Yes, this is certainly a good use of time, money, and public opprobrium.

The evil miscreant, facing her just desserts!

The evil miscreant, facing her just desserts!

An 86-year-old woman in Minnesota, Margaret Schneider, admits that she voted twice in a primary election, and attributes it to confusion, a memory lapse (she may have early dementia), and maybe believing that her later vote would cancel out her earlier one. The local Jaubert, prosecutor Michelle Zehnder Fischer, is bringing felony charges against Margaret, supposedly because a statute requires her to do so or risk misdemeanor charges herself.

Did I mention that Margaret, in addition to being 86 and having cognitive issues, suffers from Parkinson’s? Throw the wily old bat in the clink!!!! Continue reading →

In Connecticut, A Surrogate Mother Triggers An Epic Ethics Train Wreck

/ Jack Marshall / 20 Comments
Crystal Kelley and...somebody's baby

Crystal Kelley and…somebody’s baby

There is no field of ethics more murky or subject to conflicting interpretations than bioethics, and few issues in bioethics are as confusing as those involving surrogate mothers who decide that they should have some say regarding the fate of the child that grows in their bodies. CNN has reported on the most perplexing such scenario I’ve every encountered, so perplexing that I can’t unravel the ethical rights and wrongs of it.  I wonder if anyone can with confidence. I’ll just summarize the main features and some of the issues raised; you will need to read the whole, stunning story to fully appreciate this train wreck’s sweep and carnage.

I. Crystal Kelley, a single mother who had endured two miscarriages, wanted to help another couple conceive, but mostly wanted the $22,000 fee since she was out of a job. She contracted with a couple seeking their fourth child, and was implanted with two previously frozen embryos. One survived. Ethics issue: Did Kelley tell the parents about her miscarriages?

2. Five months into her pregnancy, tests showed the baby Kelley was carrying had serious medical problems, though the child had a chance at survival. The couple said that they wanted Kelley’s pregnancy terminated because they didn’t want the baby to suffer. Ethics issues: Is that a valid reason to take an unborn child’s life? Was it the real reason? Was the real reason that they were unwilling to pay for and endure all the necessary medical treatmenst, or that they wanted nothing less than a “perfect” baby? Does it matter what the real reason was? Continue reading →

The “Do You Know Who I Am?” Prosecutor and the Strip Club

/ Jack Marshall / 7 Comments
"My mistake--that's a POLE, not the Florida BAR! Silly me. I just made a mistake..."

“My mistake–that’s a POLE, not the Florida BAR! Silly me. I just made a mistake. Wrong address…”

Personally, I find few varieties of unethical conduct more nauseating than individuals of fame, position, power or influence who use that status to squeeze special privileges and considerations from ordinary citizens. From the cop who assumes that he won’t be charged for street grocer’s apple, to the judge who talks his way out of a speeding ticket, to the famous actress  who tries “Do you  know who I am?” when she’s stopped while driving drunk, this behavior warps justice, broadcasts unfairness, and saturates the culture with the toxic assumption of class and privilege, the idea that not only are the rich, powerful and famous subject to different and more lenient standards than the rest of us mere mortals, but that they deserve such treatment.

Ari Pregren, a Miami-Dade County prosecutor, was just fired from his job for embracing this tactic, and appropriately so. The fascinating aspect of the incident for me is that I am certain that his miserable conduct does not rise to level that the legal profession would deem professional misconduct. In Pregren’s case, this means that a state prosecutor who uses his position to get special consideration at a strip club is an unethical jerk, but not necessarily an unethical lawyer, at least in the eyes of the legal profession.

Hmmmmm…. Continue reading →