legal ethics

The West Memphis Three, Still Abused By Unethical Prosecution

/ Jack Marshall / 5 Comments

Their real killer is still loose, but law enforcement doesn't care: it has the West Memphis Three to blame.

The release this week of the men railroaded into prison as teenagers for the 1993 killing of three young Cub Scouts in West Memphis Arkansas was covered by the news media in superficial and misleading fashion, concentrating on the human interest aspects of the event—a “happy ending” in which three wrongfully accused and convicted men finally get justice. This overshadowed the disgraceful performance of the justice system in general and the Arkansas justice system in particular. The circumstances of the men’s release were only slightly less revolting than their conviction, and the method by which it was achieved was thoroughly unethical.

Damien Echols, Jason Baldwin, and Jessie Misskelley Jr. had been in jail for 18 years, with Baldwin and Misskelley serving life sentences and Damien Echols languishing on death row. They are almost certainly innocent. Continue reading →

Hypocrite…or Lawyer?

/ Jack Marshall / 6 Comments

"After we're done, darling, let's discuss your sexual harassment suit. I think you have a good case!"

This story probably will strike you as a bit odd.

Prosecutors have charged a 50-year-old lawyer, Robert Michael Hoffman of San Francisco, with rape after complaints from four women who told police he assaulted them when they answered his Craigslist ad for rough sex. The prosecutors say that he assaulted at least three of the four women  and engaged in rape, sexual battery, forced oral sex and one count of false imprisonment.

The odd part? Hoffman practices employment law , specializing in sexual harassment cases. Sexual harassment law is explicitly designed to ensure that employees are not exploited, debased or discriminated against because of their gender.Needless to say, rape, sexual battery and  forced oral sex would qualify as extreme sexual harassment. Continue reading →

Ethics Quote of the Day: Ken, of Popehat

/ Jack Marshall / 17 Comments

“Listen to me: a law school calculated to make students feel good about themselves is as ridiculous as a Marine boot camp designed to make enlistees feel good about themselves. Law students, God help us, will one day be lawyers. When they are, nobody will care about their self-esteem. The prosecutors seeking to jail their clients will not be seeking to foster a sense of community. The opposing civil lawyers seeking to bankrupt their clients will not be promoting a culture of dignity and respect. Most law practice is about conflict. It’s a bloody, ugly street fight. Self-esteem borne of law-should-be-harmony is useless to clients. The only self-esteem useful to clients is self-esteem earned by hard work, determination, command of the subject matter, and the willingness to stand up to adversity. People who object to law professors being wickedly Socratic, and classmates being cutthroat, are missing the point. If you’re put off by a Socratic professor, Mr. Fluffy Bunny, a run-of-the-mill judge is going to make you soil yourself. If nasty, backstabbing classmates upset you, the first time you get into a nasty letter-writing campaign with an opposing counsel you’re going to have a breakdown. Law school is not a fucking spa day. It’s training to stand between your client and whatever the world throws at him.”

—– Ken, the astute lawyer/sage/Don Rickles of the libertarian social commentary website Popehat, excoriating the University of St. Thomas Law School for, among other things, extolling the values of self-esteem, collaboration, harmony and community among their students.

What Ken is really talking about is zealous representation, that once universally accepted bedrock of the  lawyer’s duty that has gradually fallen into disfavor with many academics and lawyers. Continue reading →

Casey Anthony’s Lawyer is Pronounced Unethical By an Expert

/ Jack Marshall / 3 Comments

Jack Thompson knows incivility

Ah, the Casey Anthony trial continues to be the legal equivalent of “Jersey Shore,” or some other annoying TV reality show. In today’s episode: Hypocrisy! Revenge!  Irony! Abuse of process! Incivility!  And a special guest!

Cheney Mason, one of Casey Anthony’s defense attorneys, gave a raised middle finger (the international symbol of “I have nothing but contempt and utter disdain for you and your untoward words and conduct, so please have some form of unpleasant sexual intercourse with yourself!”) to a spectator who was verbally harassing Mason and others celebrating Anthony’s July 5 acquittal at a restaurant immediately after the trial.  Such public conduct by a lawyer is rude, undignified and inappropriate, but it is also rude, undignified and inappropriate for sea captains, puppeteers and plumbers, too. Incivility by a lawyer has to be especially egregious and must in some way threaten to undermine the administration of justice to raise the possibility of bar discipline, and flipping the bird to a jerk in a restaurant just plain doesn’t qualify. Now, a lawyer running all over town giving the finger to everyone for weeks on end, or a lawyer making the gesture to judges, opposing counsel or jury members in court would be very different matters. Such conduct would call into legitimate question a lawyer’s fitness to practice law. One such incident? No. I won’t speculate on what percentage of lawyers have given the upturned finger to someone during their careers, but you can.

Nevertheless, a Florida citizen decided to file an ethics complaint against Mason, which is his right. But this wasn’t just any Florida citizen; the complainant was Jack Thompson, a once nationally prominent attorney who managed the nearly impossible: he got himself disbarred for life in Florida for incivility, along with other ethical misconduct. Continue reading →

Something For the Casey Anthony Lynch Mob to Think About

/ Jack Marshall / 28 Comments

So they cut some corners....

The New York Times reports that John Bradley, a software designer who testified at the Casey Anthony murder trial that Anthony had visited a website regarding the use of chloroform 84 times, now says that he made a mistake, and that in fact Anthony only accessed the site exactly once. The finding of 84 visits was used by prosecutors repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee.

The designer realized his mistake after reworking his software.  Bradley told the Times that he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June to make them aware of his new findings. Yet the prosecutors never corrected the record or alerted the defense, as they are required to do under the law.

What does this mean? Continue reading →

The Ethics of Stopping the Condemned From Accepting Death

/ Jack Marshall / 11 Comments

In Oregon, a judge has granted death row inmate Gary Haugen’s motion to dismiss his lawyers after they persisted in taking measures to block his execution. They had declared he was not mentally competent to waive his appeals and allow his own state-decreed death to proceed.

Leave it to lawyers to be convinced that they know what’s best, even when it involves someone else’s wishes about his own life and death.

Is the condemend prisoner who approves of his own excecution insane, or courageous?

In an attorney-client relationship, the lawyer is ethically bound to do what the client wants as long as it is legal and within the bounds of the ethical constraints on the lawyer. A lawyer can render advice and should; a lawyer can explain the legal consequences of a course of action. But substituting the attorney’s judgment for that of the client is taboo…except, all too often, in cases like this one, in which a death row inmate decides that letting justice take its course and accepting the state’s death decree is preferable to rotting in prison.  Continue reading →

Ethics Dunce: Mercedes Colwin

/ Jack Marshall / 16 Comments

It's a mystery: why would Fox News choose her as a legal analyst?

Attorney Mercedes Colwin, an attorney and Fox News commentator, just committed pundit malpractice while discussing the Casey Anthony verdict on Sean Hannity’s radio show. Her professional biography says that she has practiced criminal defense law. If so, she has done so laboring under some serious legal ethics misconceptions.

Said Colwin, in response to Hannity’s query about her past representation of guilty defendants:

“If my client says he did it, then I can’t defend him. I can’t then go into court and say he’s innocent; I’m an officer of the court, Sean!”

What??? Wrong, wrong, outrageously wrong, inexcusably wrong! And also: ARRRRRGHHHHH! Continue reading →

Unethical and Unfair Advertising With No Laws or Rules Against It…So That Makes It OK, Right?

/ Jack Marshall / 4 Comments

Justice Holmes warned about people like this.

From Wisconsin we have a perfect example of how new technology creates opportunities for the unethical to find new ways to exploit it, uninhibited by either basic fairness or formal ethics rules that were written before the technology was available.

The Wisconsin law firm Cannon & Dunphy purchased the names of the two named partners of their biggest competitor in personal injury law, the firm Habush, Habush & Rottier, for a sponsored link, meaning that  every search for “Habush” or “Rottier” produces an ad for Cannon & Dunphy at the top of all the search results.  incensed that their names were being used to promote their competitor, Robert L. Habush and Daniel A. Rottier sued, alleging a breach of privacy and a misuse of their publicity rights. Milwaukee County Circuit Judge Charles Kahn Jr. rejected the suit, holding that purchasing a competitor’s name as an advertising key word on the Internet is reasonable commercial use. Continue reading →

When The Ethics Alarms Don’t Sound: A Cautionary Tale From Seattle

/ Jack Marshall / 10 Comments

 

%$#@*#!!!

Like all of us, Seattle attorney Ronald Clarke Mattson was infuriated when he found cars parked straddling the lines in crowded parking lots and garages.

It really is rude, inconsiderate, obnoxious and unethical behavior, especially when it is blatant, as when the owner of the Lexis or the Jaguar intentionally takes up two spaces to guard his baby against any accidental dings. This is a statement that rings out loud and clear: “My car is more important than your convenience, and I’ll take up two spaces, robbing you of your right to one, because I matter, and you don’t.” 

I’ve left nasty notes for these jerks, for all the good that does. I’ve complained to stores, and even had them make announcements over their public address systems. On a couple of occasions, when one was handy, I’ve recruited a police officer, and several times I’ve waited for the owner of the car so I could tell him off (if he wasn’t armed or too big).

Once, when the car was a brand new, loaded, shiny  sports convertible, I engaged in the intentional infliction of emotional distress, leaving a note that said that I had used a tool to leave a fairly deep, but small, indentation on his now no-longer-pristine car, and I hoped he had fun looking for it. (There was no such wound, but I am not proud of this.)

If I had a momentary desire to really harm the car, as I may have had once or twice, several considerations set off my various ethics alarms. The Golden Rule alarm wouldn’t sound, because this isn’t a Golden Rule situation: I would never take up two spaces.  Others, however, would:

  • The “Two Wrongs Don’t Make a Right” alarm.
  • The “It’s Against the Law” alarm.
  • The “What If Everybody Did This?” alarm
  • The  “Don’t Take Action That Has No Purpose Other Than To Do Harm” alarm
  • The “Sons of Maj. Jack Marshall Sr./ Lawyers/Ethicists Don’t Act Like This” alarm
  • The “I Would Be Ashamed If Anyone Found Out” alarm, and most of all,
  • The “You Know This Is Wrong” alarm.

And if they all failed to sound, due to poor installation and maintenance? Then I might have done as Ronald Clarke Mattson did, more than once. He pleaded guilty this week to a reduced count of attempted second-degree malicious mischief, a gross misdemeanor, for keying three automobiles in retribution for their owners’ parking misconduct.  He received a one-year suspended sentence, 240 hours of community service, restitution for the three victims, and has to attend an anger-management class.

But his problem isn’t anger management. His problem is malfunctioning ethics alarms.

Mattson has been a lawyer since 1972, and could now face punishment from the Washington State Bar Association, which is charged with making sure that attorneys with faulty ethics alarms seek immediate repairs.

The Strange, Unethical Saga of Junius Puke

/ Jack Marshall / 3 Comments

Junius Puke

This week seems to mark the end of a perfect storm of ethical misconduct that almost drowned a young student in legal persecution for the non-crime of exercising his First Amendment rights. An insufferable and humorless bully with a professorship collided with an irresponsible prosecutor wielding an unconstitutional law, and it has taken eight years to undo the carnage.

A man named Junius Peake was an economics professor at the University of Northern Colorado,  who due to his parody-inviting name and undoubtedly also the character traits that he was soon to display so prominently, found himself being lampooned in a student satire blog called “The Howling Pig.”  The editor-in-chief of the blog was facetiously identified in the newsletter as the obviously fictional “Junius Puke,” who was portrayed with an outrageous photograph of Professor Peake altered to include sunglasses, a different nose,  a Hitler-esque mustache, and, on occasion, Kiss make-up and a Gene Simmons tongue.  Junius Puke, with tongue. “Junius Puke” wrote prose like this:

“This will be a regular bitch sheet that will speak truth to power, obscenities to clergy, and advice to all the stoners sitting around watching Scooby Doo. This will be a forum for the pissed off and disenfranchised in Northern Colorado, basically everybody. I made it to where I am through hard work, luck, and connections, all without a college degree. Dissatisfaction with a cushy do-nothing ornamental position led me to form this subversive little paper. I don’t normally care much about the question of daycare since my kids are grown and other people’s children give me the willies.” Continue reading →