Government Lawyer No-No’s

Laurie Williams and Allan Zabel, two Environmental Protection Agency attorneys based in California,  posted a YouTube video criticizing the Obama administration’s climate change policy, citing a Washington Post op-ed piece. When the EPA told them to either take down the video or edit out references to their work with the EPA, some organizations cried “censorship.” Continue reading

Reporters, Spouses, Conflicts, and Dissonance

The Washington Post’s ombudsman, Andrew Alexander, recently wrote a column discussing the seeming conflict of interest created for a Post reporter because of who she married.

Juliet Eilperin covers climate change for the paper. Her husband, Andrew Light, is an expert on the same topic, and coordinates international climate policy at the Center for American Progress, a liberal think tank. Alexander says that while Eilperin often gets quotes from her husband’s organization, he is never involved, and that the Eilperin-Lights maintain a strict separation of their careers. None of which answers the question: can she be an objective reporter on her Post beat, which happens to be in the same field where her husband makes his living?

The Post ethics rules, Alexander duly points out, say the Post is “pledged to avoid conflict of interest or the appearance of conflict of interest, wherever and whenever possible.” Obviously, there is an appearance of a conflict of interest here. Perhaps Eilperin would be vigorously critical of a policy pronouncement coordinated by her husband, or maybe she would consciously or unconsciously allow her affection and commitment to her husband color her reporting. We don’t know, and she may not even know. One might think that we would know she was unbiased if she filed stories that put her husband, his views or his employers in a bad light, but even that isn’t certain. It might mean she was over-compensating for bias. It might mean that her views on climate change policy had soured because Andrew was in the dog house, or that she had come to resent his work for the Center, because it took time away from the family. Either way, the fact that Eilperin’s husband is linked to the climate change issue and particular views on that issue must exercise a powerful influence over her judgment.

The principle in force at work here is cognitive dissonance, often referred to in the media but seldom correctly. A psychologist named Leon Festinger devised a scale—-vertical, with zero in the center, extending upwards from +1 to +100, and downwards from -1 to -100. The Cognitive Dissonance Scale is used to measured how positive and negative attitudes toward people and things subconsciously influenced attitudes toward other people and things that they had connections to and associations with, through the involuntary reduction of cognitive dissonance. For example, you dislike an author and his books. You love a particular political cause. You discover that the author is a vocal supporter of that cause. This creates cognitive dissonance that your mind must resolve; you cannot continue to hold such a low opinion of the author and such a high opinion of his cause. You will change the values to bring them more into line with each other; you will reduce the dissonance.

If you love the cause more than you detest the author (using Festinger’s scale, imagine that the author is a  minus 6, and the cause is a plus 16), the cognitive dissonance will be resolved by your gradually feeling more positively toward the author, and conceivably, less positively toward the cause, so they eventually they meet or almost meet around plus 10. Suddenly, you have more interest in the author’s books. Your attitude has been adjusted. You may also be more open-minded when listening to adversaries of the cause you once blindly supported, because its value is lower, even though you didn’t consciously change your opinion. Cognitive dissonance and the process whereby it silently adjusts and manipulates attitudes explains much of advertising, political affiliations, biases, and how powerful, popular leaders, celebrities and institutions  influence public culture for good or ill. It also explains why close relationships can create conflicts of interest.

There are many movies about lawyers in which, for dramatic or comic effect, a trial pits an attorney-husband against his attorney-wife (“Adam’s Rib”) or an attorney-parent against an attorney-son or daughter (“Class Action”). But in real life, these adversary situations usually require informed consent by the clients, because they raise suspicions. Would a husband really go all out to make the woman he was married to look like a fool in court? In the movies, there is usually a manufactured competition between the related lawyers, but the appearance of conflict still remains. Depending on the situation, one attorney-spouse’s relationship to the other could create such a likely conflict that even client consent wouldn’t justify continuing the adversary representation. Suppose, for example, that the attorney-wife knew that her husband’s job at the firm depended on him winning. She has a stake in him winning the case now. How can she give all her loyalty to her client, who is paying  her to defeat her husband?

She can’t. And though ombudsman Andrews ties himself in knots to argue that Eilperin is in a different position, she isn’t. She has a stake in her husband’s success, which is on only one side of the climate debate.  She also has a stake in keeping his love, respect and trust. Can we trust her to be completely unbiased? Presumably, if he isn’t in her dog house, Andrew Light is very high on Juliet Eilperin’s dissonance scale. If she is to be properly objective as a reporter, his positions and those of his employer should be right at the middle of the scale—zero, neutral. But that will create dissonance. That position will eventually, inevitably carry a positive value, because she associates it with her husband.

Her marriage creates, therefore, at least an appearance of bias, and probably actual bias. There is nobody to consent to the conflict, because the equivalent of the lawyer’s client for a reporter isn’t the paper she works for, but the public itself. Short of the Post holding a public referendum, the public can’t  consent or refuse to consent. Nor should they have to. Surely Eilperin can report on another topic. Surely the Post has other qualified reporters who aren’t married to warriors in the climate change wars.

Alexander closes his article by giving Eilperin the benefit of the doubt: “It’s a close call, but I think she should stay on the beat. With her work now getting special scrutiny, it will become clear if the conflict is real.” Wait a minute…what about that “appearance” phrase in the Post’s own Code? Real or apparent conflicts are prohibited; the whole point is not to wait to see “if the conflict is real,” meaning, I suppose, that Eilperin starts obviously slanting her climate change reporting. Some observers think she’s doing this already, and that’s the point. Because of who she married, we can’t trust that she will successfully battle cognitive dissonance and give objective analysis.

If the Post cares about its integrity and avoiding the appearance of conflicts of interest, they need a new climate change reporter, and Juliet Eilperin needs a new beat.

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Corked Bats and “No Harm, No Foul”

From lawyer/baseball blogger Craig Calcattera we learn that Baseball Hall of Famer Robin Yount may have used a corked bat. Corking, in which cork is surreptitiously inserted into a hole drilled down the length of a baseball bat, is banned by the rules of baseball: it supposedly allows the bat to be swung faster and propel a ball farther and harder because of the properties of the cork. Get caught with a corked bat, and a major league player gets thrown out of the game, suspended and fined. Worse, he acquires the reputation of being a cheater. Those who are certain that former Cubs slugger Sammy Sosa used steroids are bolstered in their belief by the fact that he was once caught using a corked bat.

Yet there are strong indications that the superiority of corked bats is imaginary. When TV’s excellent “Mythbusters” tested the matter, their tests rendered that myth as “busted.” So Robin Yount’s  3,142  major league hits were not aided in any way by the cork in his bat. Should we care that he used one, if he indeed did?

Yes. We should care that he was cheating. Using a corked bat violates the rules, and the fact that this cheating is not as effective as a player  thinks it is, or effective at all, is absolutely irrelevant to an assessment of his character, integrity and sportsmanship. When the Delta House students in the comedy “Animal House” steal what they think are the final exam answers and use them on the test, they are still cheating, even though it turns out that their cheat-sheet had the wrong answers.  A runner who cheats but loses the race anyway is still a cheater; so is a corked bat-user who never manages to hit the ball.

“No harm, no foul”  is just another rationalization to make it easier for some to let unethical conduct go unrecognized and unpunished. The foul is the harm, or part of it. In cheating situations, there are two issues: was there cheating, and what were the consequences of it. The cheater is responsible for the results of his cheating, but often has less than complete control over them.  An ineffective cheater is still just as unethical as an effective one.

Many have trouble grasping this. Even some professions have trouble grasping this: for example, the ethics rules governing lawyers generally only prohibit completed violations.  An attorney trying to introduce falsified evidence in trial doesn’t count as cheating, in the construction of the Rules, if the attempt fails.  A lawyer who tries to deceive his or her client with a slyly misleading statement may not be violating the ethics rules if the client isn’t misled. Admittedly, this weakness in the legal ethics rules has a lot to do with the logistics of enforcement, but it is still an embodiment of “no harm, no foul.” The unsuccessful attempt to break the rules would probably support a complaint that the lawyer exhibited conduct calling  his character into question, but I can’t locate a case of  a lawyer whose bar  disciplined him solely for unsuccessfully attempting to break a rule.

When, if ever, baseball decides to permit corked bats, then using them will be perfectly fine, if probably pointless. For now, however, the anti-corking rule still serves a useful purpose. It helps identify who the cheaters are. In cheating, as in more honorable pursuits, there is no honor in being inept.