legal ethics

Ethics Dunce: Slate Crime Blogger Justin Peters

/ Jack Marshall / 2 Comments
Read the Slate crime blog, and you could end up like this in seven days...

Read the Slate crime blog, and you could end up like this in seven days…

Slate triggered a mini-ethics train wreck by hiring a non-lawyer for what any fool could surmise would be an assignment that would often require knowledge of the law: covering the broad issue of crime for Slate’s readers. Note: to all those scambloggers who insist that there are no good jobs in which having a law degree would be an obvious asset: here’s an example. Their note back to me: “Oh, yeah? This why didn’t Slate hire one of us?”

Touché! I presume, however, that this was because the journalist Slate did hire, Justin Peters is an editor at the Columbia Journalism Review and has pals in Slate’s management…or, in the alternative, the online magazine has a death wish. I don’t think Slate has anything against lawyers. Peters is unethical, because ethical professionals don’t accept jobs they are unqualified to perform. Then again, journalists increasingly are unaware of the concept of ethics, so now we are back to Slate, and why they would hire someone to opine in a law-strewn field without knowing shinola about the law. Continue reading →

Now THAT’S An Unethical Lawyer!

/ Jack Marshall / 5 Comments
Even Arnie didn't try THIS...

Even Arnie didn’t try THIS…

It’s bad enough that Minnesota lawyer Thomas P. Lowes had sex with his divorce client. That’s explicitly forbidden since Minnesota adopted ABA Model Rule 1.8 k, what “L.A. Law” fans fondly refer to as “the Arnie Becker Rule.” Not professional, exploits the relationship, interferes with independent judgment, a conflict of interest, you know, all that stuff.

But Lowes went a step further, and set some kind of a new record for…

  • gall,
  • unreasonable billing practices (ABA Rule 1.5)
  • inflated self image, or
  • always working on the case, no matter what, OR
  • …mixing legal work with prostitution.

…by charging his client/lover/sex toy his hourly fee for the time they spent having sex!

Continue reading →

When A Frivolous Defense Isn’t Frivolous, Or Why Ethical Lawyers Represent Unethical Clients

/ Jack Marshall / 9 Comments
Mr. Friedman, wasting time and money, and proud of it.

Mr. Frieman, wasting time and money, and proud of it.

I don’t know if Jonathan Frieman is an Occupy Oakland refugee, a failed lawyer, a scofflaw, a dummy or just a trouble-maker, but he decide to game a California “2 or more persons” car pool lane by  “sharing” his vehicle with corporate documents. Thus, when he was pulled over, he  handed the Highway Patrol officer incorporation papers that were in the passenger seat. Get it? The corporation is a “person,” legally, so there were two “people” in his car! The officer ticketed him anyway, since his defense was ridiculous. But funny! Continue reading →

Unethical Quote of the Week: MLB Players Union Chief Michael Weiner

/ Jack Marshall / 12 Comments

“Today’s news that those members of the BBWAA afforded the privilege of casting ballots failed to elect even a single player to the Hall of Fame is unfortunate, if not sad….To ignore the historic accomplishments of Barry Bonds and Roger Clemens, for example, is hard to justify. Moreover, to penalize players exonerated in legal proceedings — and others never even implicated — is simply unfair.”

—-Major League Baseball players union executive Michael Weiner, in a formal statement released after the news that the Baseball Writers Association of American had denied Hall of Fame admission this year to all-time home run leader Barry Bonds, pitching ace Roger Clemens, and several other players who have either admitted to steroid use or are strongly suspected of being users. No player was on the requisite number of ballots this year.

It takes a Harvard lawyer to be that unethical in so few words.

It takes a Harvard lawyer to be that unethical in so few words.

It’s not easy to pack so much bad ethics into one statement, but we should not be surprised that the baseball players’ union chief was up to the task. The union shares responsibility with baseball’s “see-n0-evil” management during the steroid era and the willful blindness of the sportswriting community for allowing steroids and other performance enhancing drugs to permanently scar the game’s integrity and distort its records beyond repair. Small wonder Weiner is eager to rationalize his organization’s complicity with an absurd, deceptive and corrupting assertion that none of it should make any difference:

  • The writers did not “ignore” Bonds’ accomplishments. To the contrary, his “accomplishment” of blatantly abusing steroids, launching a late career surge of power and prowess that was alien to the career arc of every other player who ever set foot on a field as he morphed into baseball’s version of the Hulk, all while lying his head off and convincing other players that drug-assisted cheating was the accepted way to achieve fame and fortune, was exactly why he was on less than 40% of the ballots ( 75% is required for enshrinement.) Continue reading →

Professional Discipline For Unethical Law School Deans?

/ Jack Marshall / 6 Comments

Why not?

What the North Carolina Bar considers a trustworthy lawyer...

What the North Carolina Bar considers a trustworthy lawyer…

Law professor Ben Trachtenberg has caused a stir by suggesting in a law review article for the University of Missouri Law School Journal  that law school administrators responsible for intentional and egregious misrepresentations in advertising for their schools have violated the professional ethics codes and could, and should, face discipline, such as disbarment.

I don’t want to cause Nando a fatal cognitive dissonance attack, really I don’t, but I agree with the professor wholeheartedly. I have long believed that the Model Rules prohibition of dishonesty in Rule 8.4 should be applied to lawyer conduct not related to the practice of law more frequently and stringently than it is. Lawyers, for their own protection, are fond of the fictional Clinton myth that one can be an upright and trustworthy lawyer while displaying deceitful and dishonest conduct in their “personal lives,” as if lawyers are ethically schizophrenic. The proof: John Edwards still has his license.

The law school deans that Trachtenberg targets, however, don’t get the benefit of this pass. They are lawyers who were dishonest in their professional duties that, while not requiring a law license, have a clear impact on the legal profession.  Trachtenberg writes,

“In light of the common application of Rule 8.4(c) to lawyers who engage in dishonesty unconnected with the practice of law, there is little doubt that dishonest law school marketing conducted by members of the bar justifies professional discipline. Paul Pless lied repeatedly, over a period of years, about the quality of incoming students at the University of Illinois College of Law, deceiving the ABA and U.S. News, along with prospective students and others who relied on statistics they compiled.191 Mark Sargent conspired with colleagues to engage in similar conduct at Villanova.192 Can anyone dispute that these men engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation”? Surely serial dishonesty—committed with the purpose of gaming the rankings used by prospective students deciding whether and where to spend tens (if not hundreds) of thousands of dollars—is at least as serious a violation as falsifying a resume and transcript.”

Sure it is. As with Edwards, however, the profession is unlikely to be willing to expand the range of activities by lawyers outside of actual practice that will trigger discipline. Continue reading →

The Legal Ethics Forum’s Top Ten Legal Ethics Stories of 2012

/ Jack Marshall / 2 Comments

top-tenOne of my most consulted ethics resources, both for my ethics practice and Ethics Alarms, is the Legal Ethics Forum, created and operated by attorney John Steele with able assistance from some of the best legal ethics experts and scholars in the nation. John has posted the Forum’s Top Ten Legal Ethics Stories of 2012, which you can, and should, read about in detail here. These are John’s headlines: (Ethics Alarms, which is not written for an exclusively legal audience, has covered six of them, #4, #5, #6, #7, #9 (as well as this gem), and #10.) Continue reading →

Ethics Quiz: The Case of the Maybe Killer Lawyer

/ Jack Marshall / 10 Comments

Tough one! Are you ready?

Convicted killer and lawyer too?

Convicted killer and lawyer too?

Richard Buchli, a Missouri lawyer who was convicted of beating his law partner to death, was getting a new trial after it was revealed that the prosecution had illegally withheld exculpatory evidence from the defense. There was some strong evidence supporting his conviction, such as the fact that the partner’s blood was splattered on Buchli’s clothes in a manner consistent with a beating death. (Buchli argued that he got bloody trying to revive his partner.) The court, however, frustrated with the prosecution continuing to drag out discovery and failing to deliver all the evidence to Buchli’s legal team, threw out the conviction completely and barred all the evidence in the case, effectively making Buchli, who had been in prison since 2002, a free man.

Now Buchli, who was disbarred in 2005 (killing your law partner is considered unethical), wants his law license back. Your Ethics Alarms Ethics Quiz Question:

Should he get it? Continue reading →

Ethics Dunce: The ABA Journal

/ Jack Marshall / 3 Comments
"I just know we're forgetting something! "Effects"? No, that's not it..."Ethanol"? No, no..."Prosthetics"? Arrrgh! What IS it?

“I just know we’re forgetting something! “Effects”? No, that’s not it…”Ethanol”? No, no…”Prosthetics”? Arrrgh! What IS it?”

This is as disheartening and it is shocking. The American Bar Association Journal, the monthly magazine of the nation’s largest lawyer organization and in many ways the face of the legal profession in the United States, just announced its 6th Annual Blawg 1oo, its reader-chosen list of the best law-related blogs on the web. There are many excellent blogs honored, of course; indeed all of them are useful or entertaining. I’ve visited most of them, and some, like Popehat, the Legal Professions Blog, Above the Law, the Volokh Conspiracy, Scotus Blog,  the New York Personal Injury Law Blog, and Over-Lawyered, I check on several times a week. There is a remarkably wide range of blog topics covered, including superhero law, practicing law in China and zombies. Guess what’s not covered?

Legal ethics. Continue reading →

TV Ethics, Viewed From A Sickbed

/ Jack Marshall / 10 Comments

This isn’t how I look. This guy looks BETTER than I look…

[ As regular readers here might have guessed, I am ill, and have been since Thanksgiving. I can barely read, can’t really research, and whatever appears below was composed in 10 minute increments with hours or days in between. I’m hoping to be catching up very soon. Thank you for your patience]

What do you do when any movement or exertion makes you cough your guts out, when you can’t sleep but have to rest, when your brain is so blurry from viruses and medication that you can’t even compose a blog post for three days? (Sorry.) If you are me, and I hope for your sake that you aren’t, you watch TV.

I got one jolt of legal ethics horror that I hadn’t remembered re-watching Kevin Costner’s “The Untouchables,” directed by Brian DePalma. In the movie’s climax, Al Capone’s trial on income tax evasion has come to a crisis point, as Elliot Ness (Costner) realizes that the jury has been bribed to acquit him. Despite documentation of that fact, the corrupt judge tells Costner that the trial will proceed, whereupon Costner extorts him to prompt “a change of heart.” Now the judge shocks the courtroom by announcing that he is trading juries with another trial next door. The new, un-bribed twelve will decide Capone’s fate.

This is, of course, beyond ridiculous. Adversary attorneys must be able to choose a jury in voir dire, where each potential juror is questioned. Trading juries just invalidates two trials. Even if they could trade juries, which they couldn’t, the Capone trial would obviously have to start all over again since the new jury wouldn’t know what was going on.

None of this occurs to Al Capone’s panicky lawyer, however, who, realizing that the jig is up, announces that “we” are changing “our” plea to “guilty.” Chaos reigns. Capone (Robert DeNiro) punches his lawyer in the face, and I don’t blame him one bit.  A lawyer can’t plead guilty against the wishes of his client! The judge couldn’t accept such a plea, and Capone wouldn’t be bound by it. This would be an embarrassing distortion of the justice system in a Warner Brothers cartoon, but for a movie based on historical figures and events to sink so low is unforgivable. (“Carrie” aside, Brian DePalma was a hack.) Continue reading →

Meet the Grants!

/ Jack Marshall / 9 Comments

Hmmm…I wonder who’ll play Jennifer in the Lifetime movie?

If this developing story from Seattle was a Lifetime Network movie, I would regard it as proof positive that LMN was running out of plausible plots. Since it appears to be real, I regard it as proof positive that life is running out of plausible plots.

Meet the Grants. They make fun couple David Petraeus and Paula Broadwell look like Mike and Carol Brady.  Described as a Seattle “power couple”, he’s a successful lawyer, and she’s city prosecutor. He’s also an accused serial rapist.

Dan Grant faces seven charges of raping Chinese women working as massage therapists, and another charge for first-degree burglary. He has pleaded not guilty to all charges. The chances that there is sufficient evidence to charge a Seattle lawyer as a serial rapist and that the evidence is nonetheless erroneous are slim, as are the chances that the police would charge the husband of a prosecutor without an air-tight case. Still, the word alleged needs to be attached to all of this. This isn’t just alleged, however: a recently released search warrant shows that prosecutor Jennifer Grant moved her husband’s SUV from in front of the massage parlor where he allegedly raped one of the Chinese women to a location far away from both the parlor and the Grants’ home. Gee, thanks, honey! Now why would she do that? The Good Wife Prosecutor swears that she took no evidence from the SUV except a garage key card, but a search warrant affidavit indicates that police believed that the vehicle contained a knife, condom wrappers, phony police ID and DNA. Continue reading →