2020 Election Ethics Train Wreck Update: Well THIS Doesn’t Bode Well…

spelling problem

That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”

Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.

Observations:

Continue reading

From The Ethics Alarms “I Don’t Understand This Story At ALL” Files, Georgia’s Dancing Doctor Fick

YouTube is stuffed with videos like the one above, posted by Dr. Fick, aka Dr. Windell Boutte, a Georgia dermatologist who poses as a plastic surgeon and who has rafts of malpractice suits pending against her. Though she claims otherwise on her website, she is a board-certified dermatologist, but not certified as a plastic surgeon or general surgeon.

However, in the Peach Tree State, every licensed physician is allowed  to perform operations, even if they are not a board-certified. They are not supposed to be dancing while they do, however. Well, this is implicit. Apparently it isn’t made clear enough, at least for this doctor. Boutte posts videos of herself dancing during surgery, like the one above. There are many more.

Thus she is a fick, the first medical variety I have encountered. A fick is someone who is openly, shamelessly, even gleefully unethical. The fact that this hyper-narcissist films herself doing choreography and mugging for the camera while the only thing on her mind should be her patient’s care demonstrates that she is wildly unethical, reckless, irresponsible and unprofessional, and this would be the case if her record for safety was squeaky clean. It isn’t. At least seven malpractice lawsuits against Boutte include claims that she used unqualified staff during procedures that left former patients disfigured. Two additional lawsuit settlements are listed on the state licensing website. And then there is the dancing around unconscious, exposed, patients while performing renditions of popular songs, such as “Bad and Boujee,” “Building up Fat in the Booty” and “Gut Don’t Live Here Anymore, while her staff act like the back-up singers.

(I can’t believe I’m writing this.) Continue reading

Clearing Up A Matter Of Widespread Confusion: How Lawyers Acquire Accidental Clients

When I pointed out this morning that by Sean Hannity’s own description of his relationship to Trump fixer Michael Cohen, he was Cohen’s client, several commenters protested, including a lawyer or two. This suggests that many more were similarly confused, and it is no surprise. A disturbing number of lawyers fall into the trap of acquiring “accidental clients.” There are many ways this can happen, but the most insidious of them is this, which people like me constantly and repeatedly warn lawyers about, often to no avail.

A relative or a friend approaches you, a lawyer, at a party. He or she asks you a question about some legal issue, and you give an off-the-cuff answer. Because you are a lawyer, and because you gave advice, however vague, that individual accepts it as a free legal opinion, and also assumes that the conversation was confidential. Usually nothing happens. Sometimes, however, the friend or relation acts based on your advice. If the results turn out badly, he or she may sue for malpractice, and sometimes will win damages. In an infamous case that is still good law, an individual went to a medical malpractice specialist to engage him to sue a hospital. After describing the facts, the potential client was told, “You have no case,” and informed that the lawyer would not accept the representation. But the individual relied on that statement, and didn’t bring a suit until the statute of limitations had run. Then he learned, from another lawyer, that he did have a valid case, though one he could no longer pursue. The first lawyer was sued for malpractice, and the court found that indeed “You have no case” constituted legal advice, and the advice was relied upon, meaning that an attorney-client relationship had been formed. Continue reading

2017 Oscar Ethics Post Mortem

There were more ethics-related events and issues at the last night’s Academy Awards than usual, and that’s an understatement;

1. Jimmy Kimmel, the Oscars’ designated Johnny Carson this time around, automatically gave the ceremonies the stench of ethics blindness by his very presence. Kimmel, as this site has documented, delights in provoking parents to be cruel to their young children so he can present YouTube videos of the kids’ despair for his audience’s amusement. Kimmel, of course, being bereft of shame or decency, was the perfect choice to execute the Academy’s second most important mission of the night, which was insulting the President of the United States in an international broadcast. He did not fail his dark masters. One well-publicized “quip”:

“Maybe this is not a popular thing to say, but I want to say thank you to President Trump. Remember last year when it seemed like the Oscars were racist? That’s gone, thanks to him.”

Actually, the Oscars are racist, or at least racially biased, as we shall see, and there is proof. I’d like Jimmy to show me the evidence that the President is racist, however, other than the “resistance” talking points he gets in his e-mail.

2. More Kimmel: in a typical Kimmel “human beings are just props to me!” bit, he arranged for a group of unsuspecting tourists to be taken on a Hollywood bus tour that ended up at the Oscars.  The group was escorted through the back doors of the Kodak Theater with no idea what was in store, as  Kimmel had the house lights turned down. When the tourists—Awww, ordinary slobs! Look, Meryl! The little people!”—opened the doors to the stage, the lights came up and all the stars shouted, “Mahershala!” The tourists’ shocked, ope mouthed expression were broadcast live to the world, as their Hollywood betters laughed.

This is called exploitation, and using unconsenting human beings as a means to an end.  Jimmy thinks its funny. Kant didn’t. I think it’s sometimes funny, and always unethical. Candid Camera asked for written consent before broadcasting its victims’ amusing reactions to gags like this.

3. Mel Gibson, justly nominated for his direction of “Hacksaw Ridge,” which also was nominated as Best Picture, sat up front. The Daily Beast tweeted “For Shame!” when the film won a statuette for editing, which it deserved. Let’s see: the theory is that the talented film editor should be snubbed for his work because Mel Gibson is an anti-Semite?  Yes, that’s the theory. The Beast’s Amy Zimmerman wrote a pre-Oscar hate piece on Gibson, which really and truly contained these two sentences:

Hacksaw  tells the story of Desmond Doss, a conscientious objector who enlisted as a battlefield medic during World War II. Of course, any drama that Gibson directs pales in comparison to his own behind-the-scenes odyssey: the story of an odious individual who, after years on the outskirts of Hollywood, has somehow managed to fight his way back into the mainstream.

That’s right: Amy Zimmerman thinks that the story of a religious man who volunteered to serve as a combat medic despite refusing to carry a rifle and who saved 76 wounded soldiers by dragging them to safety under enemy fire by lowering them, one by one,  on a rope device he improvised on the spot, thus winning the Medal of Honor, pales in comparison to Mel Gibson’s PR problems.

Have some damn respect for those who did risked their lives incredible things so hacks like you can write garbage like that and be paid for it, you stupid, stupid fool. Continue reading

Ethics Observations On The Financial Massacre Of The Aurora Massacre Plaintiffs

James Holmes’s 2012 attack on the Century Aurora 16 movie theater showing “The Dark Knight Rises” killed 12 people and wounded 70 others. Many of the survivors and relatives of those killed sued Cinemark, the theater’s owner, in state and federal court, arguing that lax security was the cause of the attack. Cinemark’s defense was that the shooting was unforeseeable. Two suits went forward, one in state court and one in federal court, with different plaintiffs. Cinemark prevailed in both. After the recent jury verdict for Cinemark in the state court case this summer, the company had sought nearly $700,000 from the victims under the “loser pays” Colorado law, which directs that the winning side in a civil case is entitled to recover its legal costs from the losing side. This is the predominant system in England and Europe. The litigation costs of Cinemark in the federal case are likely to be more than $700,000, maybe a lot more.

What’s going on here (the best question to begin any ethics inquiry)? Well…

1. The law suits were a terrible idea. This was the result, in part, of the increasingly popular ideological virus in our society that is slowly reprogramming previously functioning brains to believe that nobody should have to pay for their misfortunes, and that somebody with deeper pocket and more resources should always be obligated to pay instead. This is increasingly a staple of leftist thought: the government, insurance companies, corporations, people with more money, all of them should be potentially on the hook when misfortune strikes others, because that’s fair.

2. It’s not fair, though.  It is profoundly un-American and unethical.

If those parties have caused the damage, or had the power and responsibility to mitigate it, or promised to pay for it, then there are ethical arguments to support them paying some or all of the expenses. But if something terrible happens to you, those people should have no more obligation to be accountable for your harm than you should have responsibility for taking care of them. That’s not the message sent by the culture though. Lawyers love the message that if you are harmed, somebody else can be found to ease your pain. They love it, because they can share in the bounty if a lawsuit seeking damages prevails, and this attitude guarantees more lawsuits. Continue reading

Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests. Continue reading

An Unethical Website, Golden Rule Malpractice And The Worst Anti-Bullying Program Ever

 Izzy

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The Golden Rule is a valuable ethics tool. No question about it. Its best feature is that it compels an ethical point of view, causing us to think about the impact of one’s conduct on others. This simple shift of perspective—that’s the other virtue of the Golden Rule: it’s simple; a child can understand it—-distances us from the powerful ethics alarms-muffling effects of non-ethical considerations, which are primarily our subjective wants and needs, and forces us to look past them to more ethical objectives.

The Golden Rule is not, however, a panacea, or even the most useful ethical system. It doesn’t work in complex systems , or when multiple inter-related interests are involved, or when chaos looms. You can’t run a successful business, organization or nation using only the Golden Rule; you can’t have a coherent legal system, or the rule of law, or a banking system. Yet there are a lot of people, many of them with advanced degrees, best-selling books and millions of followers, who continue to practice Golden Rule malpractice and preach that it will solve all society’s ills, despite the fact that the most cursory examination of history and human nature makes it blindingly clear that much as we would wish it otherwise, this just isn’t true. Some of these people are well-meaning, good-hearted chumps. Some are insane. Many are fanatics. Some of them are con-artists. All of them are dangerous.

The latter was illustrated when the fifth-graders in Lincoln, Nebraska’s Zeman Elementary School received flyers on how to deal with bullying. (To get the side issues this blog deals with periodically out of the way at the outset, the incompetent and naive advice the flyer contained is one of an endless number of examples of how the education establishment is inadequately trained, staffed and regulated to be trusted with the welfare of young children, and how any parent who blithely entrusts their offspring to public schools without monitoring them closely is irresponsible, because teachers and school administrators cannot be trusted to exercise good judgment.) The flyer contained some “rules” for bullied children to apply after and during bullying episodes. The flyer was disavowed after the Lincoln, Nebraska school system’s Facebook page melted from the abuse poured on it by shocked and disgusted parents, and so far, at least, nobody has transcribed all of what is barely readable on this photo of it, and I don’t see or type well enough to do it myself: Continue reading

Consequentialism, Bias, Moral Luck and Malpractice on PBS’s “Downton Abbey”

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The fourth episode of the PBS sensation “Downton Abbey” provided a clinical examination of how bias of all kinds can rule the most important decisions in our lives, and how moral luck so frequently determines our conclusions about whether those decisions were right, wrong, or really, really wrong. It also shed some light on the  current policy conundrum of how best to consider medical malpractice suits—as a fair and necessary means of rewarding the victims of professional errors, or as a decidedly unfair device that distorts the practice of medicine and inflates its costs without improving treatment.

For those who have not caught the trans-Atlantic mania of following the saga of the Earl of Grantham and his extended family as they try to maintain their life of luxury as members of the landed aristocracy post-World War I, here are the relevant plot points of the most recent episode (in the U.S.; Great Britain is a season ahead of us):

Sybil, the much loved but rebellious daughter of the Earl is staying at the family estate (all right, castle) as she prepares for childbirth. (She and her Irish revolutionary husband Tom are on the lam from British authorities, but never mind that). The Earl naturally wants the best medical care for his daughter, and rejects the long-time family physician, Dr. Clarkson, for the task, because he has made some faulty diagnoses of late that led to all kinds of sorrow in last season’s drama. So the Earl calls in a renowned surgeon to the upper crust who is upper crust himself, Sir Philip Tapsell. (He appears to be an arrogant, pompous jerk, but the show’s writers show him giving sage and well-worded advice to the Earl’s non-Irish revolutionary son-in-law on the delicate matter of his sperm count, so we know he’s not a fraud as well.)

The Earl’s American but far too deferential wife Cora (in case you wondered whatever happened to the cute Elizabeth McGovern from “Ordinary People,” the answer is, “This!”) seeks to rescue Dr. Clarkson from a stinging snub by insisting that he come to Downton Abbey and be present for the childbirth as what we would call a consulting physician to Sir Philip, who doesn’t want one. Two head-strong doctors and hostile doctors looking after the same patient—yes, this will work out well.

Sure enough, Sybil’s pregnancy takes an ominous turn. Her ankles are swollen (“Perhaps she has thick ankles!” huffs Sir Philip, pooh-poohing the symptom. “She does not!” replies loyal Dr. Clarkson), her mental state is confused, and there is protein in her blood. Clarkson concludes that Sybil is toxemic and believes she could suffer eclampsia if she isn’t taken to the hospital immediately for a Caesarian section. Sir Philip dismisses him as a hysteric hack, and insists that Sybil’s pregnancy is normal and fine. Since Caesarians were risky in the 1920’s, often resulting in the deaths of the mother, the baby, or both, he believes Dr. Clarkson is giving irresponsible advice. As critical minutes tick away, Lord Grantham asks Clarkson if he can guarantee that Sybil will survive the ordeal of a Caesarian. “There are no guarantees,” he replies, correctly. Not hearing what he wanted to hear, the worried father turns to Sir Phillip and asks how certain the blue-blood doc is that the operation is unnecessary. “Completely certain,” is the ridiculous reply.

Announcing that certainty is a better bet than equivocation, Lord Grantham decrees that Sybil will remain at the castle to have her child, which she promptly does. All seems to be well, too, with a healthy baby, a beaming mother, a relieved family, and a smugly gloating Sir Phillip. But then Sybil goes into the violent seizures characteristic of eclampsia, and it is too late to save her. She dies. Dr. Clarkson’s diagnosis was correct. The family is devastated; Sir Philip is stunned, Cora is furious at both him and her husband, and the Earl of Grantham is feeling guilty.

Got that?

Cora’s anger, the Earl’s guilt and the vindication of Dr. Clarkson are all the result of a bad-tasting recipe of hindsight bias and moral luck. Sybil might have not gone into convulsions. She might not have survived the Caesarian, in which case Dr. Clarkson would be the one looking incompetent, Sir Phillip would say “I told you so,” and Cora would be furious at a different doctor but the same decision-maker, her husband, who would still be sleeping in the guest room. Continue reading

The Messy Case of the Courageous/ Zealous /Inept/ Dedicated/ Venal/ Lying/ Unethical/ Ethical Lawyer

The courtroom chaos of Gilbert and Sullivan’s “Trial By Jury” was nothing compared to this!

One thing we do know for sure: the lawyer was rushed. And therein lies much of the problem.

This mind-blowing scenario, that could have easily been an episode on “Boston Legal” or “Ally McBeal,” occurred in California.  After a week long trial in a personal injury case where the brain-damaged plaintiff’s lawyer had asked for millions in damages, jurors  deliberated only four hours and announced they’d reached a decision. Both lawyers were certain a defense verdict, against the disabled man, was coming. Plaintiffs attorney C. Michael Alder pulled defense counsel  into the hallway for last-minute settlement negotiations, hoping that the defense would agree to some damages as insurance against a surprise plaintiff’s verdict. With his developmentally disabled client (who had suffered brain injuries in a fall from an ambulance) and his mother by his side, Alder exchanged figures and rejections with   defense lawyer James Siepler, who had an insurance claims adjuster on his cellphone.

Los Angeles County Superior Court Judge Michael Johnson was impatient, for the jury was ready to give its verdict. Literally at the last second,  Alder and Siepler agreed to a  $350,000 settlement, and returned to the courtroom. “The parties have advised me that they have reached a settlement of the case,” the judge informed the jurors, adding, “They will be happy to talk with you out in the hallway to get your views.”

They got the jurors’ views, all right. The jurors told the attorneys that they were going to award the plaintiff 9 million dollars. Continue reading

Incompetence Follies: Fractured History For Virginia’s Fourth Graders

Bob and Ray, the great deadpan comedy team that mastered the form of the comedy interview on radio, recordings and TV, once has a routine about a longshoreman without a high school diploma who had written a voluminous “History of the United States.”

“But the book is riddled with errors!” protested Bob Elliott, playing the interviewer. “For example, here on page 214, it says that Abraham Lincoln was born in 1926 in Bailey’s Mistake, Maine!”

“Well, it’s a big book with a lot of pages,” shrugged Ray Goulding, as the longshoreman-historian. “I’m sure I missed some typos. You can’t catch everything!”

I was reminded of the Bob and Ray skit when I learned that a history book used in 4th Grade in Virginia elementary schools, Our Virginia: Past and Present, teaches that thousands of African Americans fought for the South during the Civil War, a discredited claim  often made by groups seeking to play down slavery’s role as a cause of the South’s rebellion. Continue reading