It is the time for year-end lists—Ethics Alarms will post its 2009 ethics award winners soon—and one of the best is out. From the always excellent Legal Ethics Forum comes legal ethics ace John Steele’s list of the Top Legal Ethics Stories of 2009. Even though John left out my personal favorite, it is a thorough and enlightening compendium. Even if you aren’t a lawyer (perhaps especially if you aren’t!), it is worth reading. Something on his list will affect your life sooner or later, if it hasn’t already.
legal ethics
The Ethics of Letting a Lying Defendant Testify
It’s snowing like crazy outside, and I’m stuck putting the lights on a nine-foot tree. My only escape from the pine needles assaulting my tender skin is ethics reverie, and I find myself thinking, once again, about the classic criminal defense attorney’s ethical challenge:
What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading
Law Students, Lawyers and Judges With Broken Ethics Alarms, 2009
I won’t keep you in suspense: my favorite is the Harvard law school whiz who celebrated his job offer from a top law firm by getting drunk and burning down a church. Forgot to check the batteries in the ol’ ethics alarm, I guess!
Here are two cautionary end-of-year lists: from the Avvo blog, the “Top Lawyers Behaving Badly” list for 2009, and, though not rich a source for black humor, the even more disturbing “Year’s Most Infamous Lawyers” from the Business Insider.
Ethics Alarms thanks Robert Ambrogi for finding them, as well the Avvo and the Business Insider for doing such an excellent job of compiling them.
The Arnie Becker Rule [Updated 12/11/16]
For about 20 years, the consensus has been building in the legal profession that a lawyer sleeping with his clients is not only a bad idea, but also should be prohibited by the formal ethics rules. States like California, Oregon and New York quickly adopted such a rule while other bars resisted; when the ABA added the “no sex with clients” provision to is Model Rule 1.8 in 2003, more states followed suit. Now Virginia, one of the most respected bars in the country, is considering its first pronouncement on the subject, in the form of a formal ethics opinion. Continue reading
Student Booze, the Police, and the Facebook Mole
The battle to define what is right and wrong regarding social networking sites continues. The Philadelphia Bar Association has decided that it is an ethics violation for a lawyer to recruit someone to make a Facebook “friend request” to a witness to pass on to the lawyer the contents of the witness’s Facebook page. The ethics committee wrote that this was dishonest conduct by the lawyer even though the witness willingly accepted the fake “friend” and would have accepted almost anyone who asked. The same tactic was pulled on University of Wisconsin-La Crosse student Adam Bauer, who has over 400 Facebook friends and who accepted a friend request by an attractive young woman he didn’t know because, well, she was an attractive young woman. She was working for the police, however, and found photos on the site of Adam and a friend, Tyrell Luebker, with adult beverages in hand. They both were ticketed for underage drinking, and ended up paying a fine. Continue reading
Robert Bowman: Aspiring Lawyer, Ethics Martyr
Robert Bowman, according to a panel of New York judges, does not have the requisite good character to be admitted to the practice of law in New York. The reason for the panel’s finding is superficially logical: he owes nearly a half-million dollars in student loans. This is, says the panel, per se proof of irresponsible and negligent financial management, making him an unacceptable risk for any client. The panel is almost certainly wrong. Continue reading
“The Good Wife” and Bad Ethics
Julianna Margulies’ latest attempt to find another hit series after “ER” is a lawyer drama, “The Good Wife.” It tells of the travails and trials of a former litigator who returns to law firm practice after her prosecutor husband, played by “Mr. Big” Chris Noth, is sent to the slammer in a scandal that also involved marital infidelity. As lawyer dramas go, “The Good Wife” is fairly good about not distorting the legal ethics rules. It still slips up, however, as this week’s episode showed. Continue reading
Soccer Ethics, and the Duty to Self-Report in Sports
Back in January, Pope Benedict XVI opined that soccer was the perfect vehicle to teach young people moral lessons, “a tool,” in his words, “for the teaching of life’s ethical and spiritual values.” Since then, soccer players have been going out of their way, it seems, to prove him wrong, led by New Mexico women’s soccer player Elizabeth Lambert. Continue reading
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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