legal ethics

Don’t Tell Mom the Client’s Dead

/ Jack Marshall / Leave a comment

The Minnesota Supreme Court has suspended a lawyer for settling a case without revealing to the opposing side the small matter of his client being dead. There aren’t many misconceptions a lawyer is absolutely required to correct by informing the other side, unless the lawyer or the client clearly created a the misconception by its own words or actions. But the death of a client mid-case is one of them. Continuing to negotiate as if the client is alive is an affirmative and material misrepresentation.

This principle is always good for a laugh in a legal ethics seminar, but instances of its application are rare. In this case, the suspended lawyer may have uttered a famous quote when his adversary, after agreeing to a settlement, heard that the client had died and asked him whether it was true. Thomas Lyons, Jr. replied, “Yes. How ironic!” Continue reading →

The Hood Fiasco: SCOTUS Ducks An Ethical Imperative

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Charles Hood has been on Death Row in Texas since 1990, when he was convicted of murder in the shootings of Ronald Williamson and Tracie Lynn Wallace at Williamson’s home in Plano, Tx. Hood had worked for Williamson and was living in his home. There was plenty of convincing evidence that Hood committed the murders; his defense was essentially based on mitigating circumstances. Nonetheless, it was by any logical and ethical standards, an outrageously unfair trial. Why? In a scenario that would have been laughed out of a “Law and Order” writers’ conference, the trial judge, Verla Sue Holland was sleeping the prosecutor,  county district attorney Tom O’Connell. Continue reading →

A. J. Pierzynski, Baseball Cheating and Moral Gray Zones

/ Jack Marshall / 1 Comment

The baseball season is certainly off to an unethical start.

In Tuesday’s game between the Blue Jays and White Sox, Toronto pitcher Ricky Romero’s gestating no-hitter was aborted in the 8th inning in part because of some deceptive play-acting by ChiSox catcher A. J. Pierzynski. Every era  has one player who acquires a reputation for being tricky, a.k.a. “dirty,” and Pierzynski is the current title holder. When he came to bat against Romero, the catcher with the unspellable name took advantage of a pitch that bounced in the dirt near him to hop up and down as if his widdle toe had a ball-induced boo-boo. Incredibly (for even the White Sox announcers were chatting about how obvious it was that the ball hadn’t touched A. J., noting that he wasn’t even hopping on the most plausibly injured foot), home umpire Tim McClelland stood by silently as Pierzynski trotted to first base. Blue Jays manager Cito Gaston protested to no avail, and, not for the first time, A. J. Pierzynski had stolen first base. Now Romero had to pitch from the stretch rather than a wind-up, and the no-hitter (and the shut-out) was no-history seconds later, as Toronto’s Alex Rios hit a home run.

Did A. J. Pierzynski cheat? Should he be fined or punished for feigning an injury,  as some have suggested? Continue reading →

The Conundrum of the Unsuccessful Cheat

/ Jack Marshall / 9 Comments

A sharp-eyed Chicago White Sox fan with a blog at his disposal caught something interesting in yesterdays Twins-White Sox game, which ended in a ChiSox victory when Twins baserunner J.J. Hardy was thrown out at home to end the game. As Hardy rounded third, Twins third base coach Scott Ullger stepped on to the playing field, planted one foot on third and for all the world looked like a runner holding the bag until he saw if the relay throw was going to be fielded cleanly. Was his intent to fool Twin Mark Teahan, who had just received the throw from the outfield, into believing—just for a crucial second—that he was Hardy, thus delaying the relay throw home? If so, it didn’t work: Teahan threw home quickly and well, and Hardy was a dead duck. As the blogger,Jim Margalus, writes,

“…it would’ve been interesting to see what would’ve happened if the relay were botched, because what Ullger is doing seems to be in violation of rule 7.09(h), in which…‘With a runner on third base, the base coach leaves his box and acts in any manner to draw a throw by a fielder;… is defined as an act of interference’.” Continue reading →

Exemplary Ethics: Opportunity for the Gambling Grannies’ Lawyers

/ Jack Marshall / 2 Comments

My discussion of that sad case of the two elderly Connecticut sisters who are embroiled in a lawsuit over lottery winnings did not focus on their lawyers, and that was intentional. Though I spend most of my time teaching legal ethics, I only venture there on Ethics Alarms rarely, because 1) to do it right usually requires being technical, and technical is not conducive to 700-1000 word essays, and 2) most lawyers are bored by legal ethics, so non-lawyers figure to be bored even more.  A new reason became crystal clear this week, when I foolishly steered an issue involving blog ethics into legal ethics because the blogger happened to be a lawyer, was reckless with my terms, and ended up unfairly implying something I did not mean to imply. My apology for that fiasco is here.

Nevertheless, I should have discussed the role of lawyers in the Connecticut case. I am not privy to their advice to their respective clients, and for all I know, they may well have attempted what I suggest here. Whether they did or not, this case is an excellent one to reflect on what lawyers do, and ought to do. Continue reading →

Ethics Quote of the Week

/ Jack Marshall / 10 Comments

“One of my students this year has a vaguely Hispanic name but is literally the whitest girl you’ve ever met. Her mother straight out asked, ‘If we mark she’s Latino on the application, is that something that they would ever challenge?’ I told her honestly my best guess, which was no. And, if early admissions are any indication, it seemed to work.”

—-A  guidance counselor (and former Ivy League admission officer) at a private school in the South, quoted by Kathleen Kingsbury in her report for The Daily Beast on dubious college admission tactics.

This, of course, is completely unethical for both the student and the counselor, who is exactly like a tax attorney or accountant who lets a client know that his fraudulent return will almost certainly not be audited by the I.R.S. Both of those professionals violate their ethics codes by aiding and abetting such conduct, and the quoted counselor is just as bad.

What should the counselor have said? Continue reading →

John Adams: Conflicted?

/ Jack Marshall / 1 Comment

John Adams’ heroic defense of the British soldiers accused of murder in the Boston Massacre has moved to the front of the line in the competition for favorite historical comparison to the controversy over the so-called “Al Qaeda 7,” the Justice Dept. attorneys under attack for their former representation of Gitmo prisoners. Over at The Legal Ethics Forum, law professor Richard Painter has posted a fascinating essay on John Adams’ own ethical conflicts in his most famous case, and they were far from minor. You can, and should, read it here.

Ethics Alarms: the News, the Web, and Other Things

/ Jack Marshall / 2 Comments

Why People Think the Media is Biased, Reason 61,567: Chris Matthews recently mocked new Mass. GOP Senator Scott Brown for signing a book deal to write his autobiography. “Didn’t people used to write their memoirs after their careers?” Matthews sneered. Gee, Chris, I don’t know: Weren’t you extravagant in your praise for Sen. Barack Obama’s autobiography, published before he was half-way through his first term?

How Writers Are Different From Lawyers: A free-lance writer lays out her ethical principles here, which includes not lending her talents to causes she doesn’t believe in. She is on firm ground, because citizens don’t have a Constitutional right to have their ideas professionally communicated to the world. Citizens do and must have the right to use the laws of their country for their own benefit, however, and to have the best representation possible when they are accused of crimes. That is why we can make judgments about a writer’s principles based on her choice of clients, but to do the same with lawyers is an attack on the principles of democracy. Continue reading →

Provocative Links for Ethical Weekend Reading

/ Jack Marshall / 1 Comment

Here is a diverse selection of five ethics-related posts from cyberspace for your weekend reading pleasure:

  • Christopher Hitchens analyzes, critiques and updates the Ten Commandments—and does an excellent job of all three, here.
  • Finally, a former Bush Justice Department official takes aim at the Republican attacks on the so-called “Al Qaeda Seven,” a despicable moniker apparently invented by Mary Cheney. There really is no debate here: the suggestion that attorneys who previously represented accused terrorists cannot be trusted to work in Justice is legally, ethically and logically ignorant. Still, it is good to have a Republican lawyer say so.

Randy Cohen Watch: “The Ethicist” vs. Integrity, Accountability, and the Law

/ Jack Marshall / 5 Comments

Randy Cohen, “The Ethicist” of the popular New York Times Magazine column, frequently gets in trouble when he opines on the law, legal ethics, and how lawyers interact with society. This week he was at it again, and he got in trouble, all right. Big time.

Bruce Pelligrino wrote to the column to get “The Ethicist’s” take on the actions of a friend, who told Bruce he wanted to hire a lawyer to challenge a speeding ticket even though he had admitted to the police officer, in the presence of his children who were passengers in the car, that he had been driving 51 m.p.h . where the limit was 35.

“I think he should accept the consequences, learn from the experience and give his children a lesson in ethics,” wrote Pelligrino. ”Shouldn’t he just pay the ticket?”

Cohen sided with the speeder, opining…

“Even those who think themselves guilty are entitled to their day in court, and there is civic virtue in their exercising this right. A trial is a way to hold officials accountable for their conduct. Was the radar gun accurate? Was the speed zone clearly marked? Did the police officer behave properly? And what, given all the circumstances, is an appropriate punishment? Little of this could be scrutinized if everyone simply paid the ticket. It would be a court-clogging nightmare if every self-confessed speeder demanded a trial, but it is a fine thing if, now and then, some people do.”

Randy appears to have misunderstood the question, believing that Pelligrino’s friend was being charged with an arcane S.E.C. violation, or some intricate form of criminal conspiracy. The guy was driving too fast, knew it, and got caught! What does Cohen mean “Even those who think themselves guilty”? The driver admitted he exceeded the speed limit on the basis of his own car’s speedometer; he didn’t “think” he was guilty; he knew with complete certainty he was guilty, and said so to the cop who stopped him.

“The Ethicist” thinks “it’s a fine thing” for that driver to renege on his admission and impugn the policeman’s behavior, challenge the speed limit posting and question the radar gun to get out of a wrongful fine for an act he admits he committed. How could this course of action possibly be called ethical?

Here is what really is “a fine thing,” Randy: integrity—sticking to one’s word and backing it up with action. The driver said the ticket was correct. It is dishonest and irresponsible for him to turn around and challenge it as Cohen suggests. Here’s something else that is “a fine thing,” Randy: accountability—admitting when you have done wrong when you know it and accepting the consequences. The purpose of the legal system is not to encourage citizens to try to avoid just consequences for admitted violations of the law. Yes, as Cohen correctly notes, everyone has a right to challenge charges in court, but as anyone who calls himself an ethicist is supposed to know, it is not always ethical to exercise a right. Banks have the right to kick elderly homeowner out onto the street as soon as they fall behind on their mortgage payments. I have the right to limit my circle of friends and business associates to straight, white, Protestant bigots. I have the right to be blatantly incompetent in my free ethics commentary, and, like Randy in this case, to give mistaken and even harmful advice. All of these things are still unethical, however.

The Ethicist’s answer to Mr. Pelligrino’s query is unethical too, dramatically so. Cohen is saying that it is reasonable and ethical to force a trial on a traffic offense when…

  • The driver admitted the offense to the police officer…
  • …in front of his children…
  • …in order to challenge the veracity of the officer, who took his admission in good faith…
  • ….requiring the officer to appear in court, taking him away from community law enforcement duties…
  • …taking up court time, using taxpayer-funded personnel, that should be devoted to cases where the facts are genuinely in dispute…
  • …with the objective of avoiding the payment of a just fine to the government, where it would be used for community purposes, in order to transfer money instead to the pocket of, not just a lawyer, but the unethical species of lawyer who is willing to take unconscionable cases…
  • …thus teaching the driver’s children, if the driver prevails, that the objective in life is use the system to avoid accountability, even when you deserve to be punished, and..
  • …that respect for the law is less important than avoiding a thoroughly earned fine, and
  • …that speeding is all right if you can get away with it, thus…
  • …increasing the likelihood that the children themselves will regard excessive speed this way when they become drivers, and also increasing the chances that their driving habits will cause harm to themselves or others.

I have  read “The Ethicist” for years, I have learned that Randy Cohen has unseemly problems with honesty, a reflex prejudice against law enforcement, and shocking and brazen cluelessness on matters of legal ethics and the exercise of legal rights. Bruce Pelligrino managed to ask a question that involved all of them, and the result was one of the most indefensible answers I’ve seen from Cohen yet.