negotiation

Discrimination Or Negotiation? The Phony “All The Money In The World” Pay Controversy

/ Jack Marshall / 30 Comments

As usual, the headlines are misleading, and the reporting is soaked with emotion.. Michelle Williams Is Reportedly Worth 1500% Less Than Mark Walberg To Sony…

is a typical example. Fake news. Mark Wahlberg reportedly made 1500 times what Michelle Williams did for All the Money reshoots. True, but misleading. Here is what happened:

“All the Money in the World” is the film that had to be substantially re-shot after tyhe decision was made to make Kevin Spacey, in a major role, disappear, with his part taken by Christopher Plummer. This required far more re-shooting than a typical finished film requires. Most movie contracts require a certain number of reshoot days as a routine stipulation for the actors, who must make themselves available as needed. If more than the usual additional filming is needed, however, actors are not obligated to work beyond what they reasonably expected.  Michelle Williams and Mark Wahlberg had agreed to appear in “All the Money in the World” for less than their standard fee, but when they had to go an extra mile to let the film be completed, they each took a different tack.

Williams was nice, and quickly agreed to return, believing, without being told so,that other participants had made the same decision. She even worked over Thanksgiving,  arranging for her 12-year-old daughter, Matilda, to spend the holiday without her. “They could have my salary, they could have my holiday, whatever they wanted,” she Told the New York Times. “Because I appreciated so much that they were making this massive effort.” (…to get rid of Kevin Spacey!)

Her co-star Mark Wahlberg, however, realized that he had leverage over the production team. He was the only major cast member with no commitment to reshoot his scenes. The finished film was set to be released in theaters in about a month, on December 25, so he had terrific leverage. In Hollywood, leverage equals big bucks. He told his primary agent, Doug Lucterhand, to play hardball, and negotiate for as much money as he could get.

The production company ultimately agreed to a $1.5 million payment.

Is this gender discrimination? No. Is it an example of bias? No. Is it unfair? Well, only in that life is unfair, some people are more shrewd than others, Hollywood isn’t kindergarten, and nice guys finish last, as Leo Durocher said. Continue reading →

Morning Ethics Warm-Up, 9/7/2017: Compromise, Competence, Verrit, A Congressional Jerk, And Democratic Crooks Don’t Matter…

/ Jack Marshall / 34 Comments

Good Morning!

1 President Trump stunned the political world and particularly the left’s “I hate him” news media by crossing party lines and cutting a debt deal with Democratic leaders in defiance of his own hyper-partisan party. One reason they were stunned is because this is what competent Presidents do and are supposed to do in order to govern, and we have just finished eight years with a previous President who was unwilling and incapable of doing it.

This single episode doesn’t make Trump a competent President, but it does show that he is competent in at least one aspect of democratic leadership (Obama was competent at exactly two: appearing Presidential and speaking coherently), and has some guts. The demonstrated ability to negotiate and the willingness to act in the teeth of furious opposition were two characteristics that the advocates of his candidacy cited as justification for electing him.

It is also dawning on some that the structure of the DACA executive order may well be to fashion the measure as a bargaining chip to be cashed in later. This is also the kind of thing competent leaders do.

2. There is a new website called Verrit, which appears to be an openly, proudly, left-biased news source which purports to “verify” news stories, obviously based on its own progressive world view. Verrit founder and CEO Peter Daou told the news media,

“We’re in a time now where you just no longer trust anything that you’re reading,” Daou said. “Facts are now in question. Reality is now in question. So we want to do something where we rigorously vet these facts and we actually stand by our research and put an authentication code on every fact that we put up.”

And what qualifies Verrit as a fair and objective “authenticator”? Apparently it is the virtue of being hard-progressive and anti-conservative to the bone. Here is a recent Verrit collection of its “cards”:

Continue reading →

Morning Ethics Warm-Up: 7/7/17

/ Jack Marshall / 47 Comments

1. I am afraid that today’s posts may be heavily tilted to the ongoing mainstream media implosion, depending on what other issues surface and what the Ethics Alarms ethics scouts sleuth out. Afraid, because I know that many readers here, like the news media itself (not surprisingly, but tellingly, the legacy news media isn’t reporting this story, but it is being thoroughly reported in the “new”–as in online–news media) want to pretend that it isn’t a story at all. The repeated deflection—they are deflecting, whether the mainstream media defenders can admit it to themselves or not, because the news media is destroying itself with unrestrained anti-Trump bias, and its defenders like anti-Trump bias, as they are suffering from it themselves—is “Isn’t an untrustworthy President worse than an untrustworthy news media?” The answer is absolutely not. A President’s job isn’t to be trustworthy, though being trustworthy is crucial to doing the job and maintaining the vitality of his Office. A President’s job is lead the government and use his power to keep the nation safe, free and prosperous while upholding the Constitution. A trustworthy President is more likely to accomplish those goals, and I insist that a trustworthy (that is, ethical) individual should always be preferred over an untrustworthy one who claims to have more popular policies in mind. Nevertheless, untrustworthy Presidents can have successful administrations, and have before in our history. Moreover, a President who is untrustworthy can be replaced in four years.

We don’t elect journalists. What is happening to our pampered, privileged, arrogant  journalistic establishment cannot be remedied at the ballot box, and indeed impedes effective elections. A news media that increasingly sees its function as manipulating public opinion to serve its own ideological and partisan ends threatens democracy itself. That makes the rogue news media of today a far greater threat than one incompetent President, and the more urgent ethics concern.

How will this professional ethics abdication be addressed and repaired? It must be, and the starting point has to be the journalism field’s  own recognition that there is a crisis.

2. There was a flicker of hope on the self-recognition front yesterday, when former CNN chairman and CEO Walter Isaacson, being interviewed on Bloomberg’s “What’d You Miss, lamented the current state of the media, saying that news coverage and bias was the at least partially at fault for the “enormous political divide” in the U.S.  Now leading the Aspen Institute’s education and policy studies, Isaacson said that the polarization and partisan hostility “have been exacerbated by all forms of media. People are getting more and more partisan.” He also pointedly refused to accept the standard “It’s all Fox News’ fault” rationalization, saying, “I put everybody [in the media] in the category, including all of us, that we can step back from knee-jerk partisan elections…that would be good.”

Isaacson’s statements are too mild and meek, and not exactly a ringing rebuke, but it’s a step in the right direction. I’ll take what I can get. Continue reading →

Obama, Trump, And The Avoidable “Two Presidents” Ethical Dilemma

/ Jack Marshall / 10 Comments

trump-and-obama

Yesterday, Donald Trump sent out not just one but three tweets that directly interfered with current U.S. policy efforts, involving the costs of a new jet fighter plane, nuclear weapons, and a U.N. resolution criticizing Israel. This understandably is causing consternation in the Obama administration, because Trump is exercising influence without authority. Until January 20, 2017, Donald Trump has no official position or authority in the government at all. He does have power and influence, however, because everyone knows that he will have authority very soon.

What constitutes abuse of the power and influence? Should a President Elect be a mute and invisible presence until he is officially sworn in, so as not to interfere with the current President’s discharge of his duties?

For the lame duck Chief Executive, with slightly more than two months left in office and vastly diminished influence, the ethical problem is different. How much should he defer to the incoming President, and not take actions that will seriously interfere with the policy directions the new President  may choose to take? Once the will of the people has been made clear at the ballot box, is it fair and responsible for current President to actively work against the likely agenda of the incoming President?

Finally, if a lame duck President is attempting to undermine the objectives of the incoming President before that President Elect takes office, is it unethical for the President Elect to use his influence and power to stop him, or at least mitigate the damage? Continue reading →

Sometimes It All Comes Together…But First, A Song!

/ Jack Marshall / 8 Comments

As those who have read here for a while know, among my fondest passions, virtually life-long, are baseball,  theater and ethics. Today, I have the pleasure of seeing them all come together in a single event. How often does that happen?

At noon, I will be giving my most recent musical Continuing Legal Education ethics seminar, “Ethics Cabaret,” at Nationals Park in D.C. prior to the Mets-Nats game. “Ethics Cabaret,” like its six predecessors, presents legal ethics hypotheticals  as parodies of pop, rock, Broadway or country-western standards, presented by a professional performer. In this case, the performer is American Century Theater veteran Esther Covington, who accompanies herself on the keyboard. I write the songs that make the young lawyers cry, but she sings them, beautifully and often hilariously.

Speaking of Barry Manilow, my favorite segment of the seminar is the parody of one of his signature songs, which you can hear above—it’s an ear-worm, so be careful. The legal ethics version is about “Bridge of Spies” and the many quandaries raised in the film, which I examined in this post earlier this year. The parody is called “Who is the Client?,” lyrics-only copyrighted by ProEthics. Here they are….you can sing them along with Barry’s version! Continue reading →

The Real Legal Ethics Conundrums In “Bridge of Spies”

/ Jack Marshall / 6 Comments

bridge-of-spies

Quite a few readers have written that they would enjoy some of the problems I present in my seminars on legal ethics. I try to please, so here are some difficult legal ethics issues that arose in the screenplay of last year’s Oscar-nominated film “Bridge of Spies.”

I wrote about the film earlier this year, here.

The film tells the true story of Jim Donovan, an insurance lawyer who is recruited, in 1957, by his New York bar association to take on the representation of the accused Soviet spy Rudolf Abel, a job that we see Donovan not only do bravely and competently, but one that he takes all the way to the Supreme Court. He loses, and Abel goes to prison.

Legal ethics points:

  • That ends the representation, and Abel is no longer Donovan’s client, but a former client.
  • Lawyers still have duties to former clients: they must keep all of the confidences learned during the representation and after, and not use these against the interests of the ex-client, or reveal them ever, even after the ex-client is dead and buried, except under rare circumstances.
  • A lawyer is also not allowed to become adverse to the interests of a former client in a substantially related matter to the one he (or she) handled for the client.

Because when representing Abel, Donovan had argued against executing the spy on the grounds that he might a useful  bargaining chip if an American was captured by the Russians—an argument he made to save Abel’s life, not to provide unsolicited advice to the government—the capture of U2 pilot Gary Powers after he was shot down in a spy plane makes the lawyer a candidate to make his own scenario come true. An East German official sends Donovan a letter claiming to be able to broker an exchange of Powers for Abel. When the CIA learns about the letter, they ask Donovan to go to East German and negotiate the deal. Continue reading →

As Usual When Gender Discrimination In Wages Is The Issue, There Is More To The Women’s Soccer Lawsuit Than The Media Wants You To Know

/ Jack Marshall / 13 Comments

women's soccer

The gender wage discrimination issue makes my head start to hurt every time it is raised, which, I admit, has made me grateful that Hillary and Bernie have been concentrating on the other progressive issues they fill with half-truths and deceit. Some of those are the wealth gap, mass incarceration, the evil of big banks, discrimination against Muslims, trigger-happy police, campus sexual assault, climate change, gun violence  and the minimum wage. As with these pet progressive agenda items, it isn’t that there aren’t real problems there that require effective policy initiatives, but that advocates are so infuriatingly dishonest when debating them—exaggerating statistics, demonizing opponents, and persisting in using false facts, studies and myths long after they have been definitively disproved.

If the new media was competent and even-handed, challenging the false assertions as they should, this would not be such an impediment to rational debate. The news media is seldom objective, however. On all of these issues and more, it plays the role of advocate and partisan ally with depressing regularity. An activist on the keft has to make a truly outrageous statement to even be challenged, as when Black Lives Matter organizer Aaron Goggans suggested on CNN yesterday that black on black crime is a “myth.”

There is gender discrimination in wages; I have seen it up close, in my family and in companies and organizations I have worked for. I have personally taken action to address it. The issue is complicated, however, and not close to the absurd “77 cents on the dollar” figure that has been employed, unchanged and virtually unchallenged, for decades, nor is it fairly represented by studies that show how men in the same careers make more over their working lives than women.

Never mind; the news media allows the issue to be debated in an atmosphere dominated by misrepresentations. My reflex approach is that  until advocates for a position are willing to stop lying, spinning, and demonizing, I will pointedly avoid supporting them. Call it the Clean Hands Doctrine. Gun control is one example. Climate change is another.

When  five players on the U.S. Women’s Soccer team filed a federal complaint last week accusing U.S. Soccer of wage discrimination because, they said, they earned as little as 40% of what players on the United States men’s national team earned despite reaching the team’s third World Cup championship last year, I read and heard nothing but cheers from women’s advocates, Democrats, pundits and Facebook posters I also read nothing but sexist snorting from the conservative side. (“Wanna know how to get paid the same as men for playing soccer? Try out for the men’s team! HAR!” ). The truth, as usual, is somewhere in the middle, but you wouldn’t know that from reading most accounts or watching the news channels. Continue reading →

X-Files Ethics: There Is Nothing Weird About Offering Scully One-Half Mulder’s Contract

/ Jack Marshall / 38 Comments

X-Files

Gillian Anderson reported that when the producers approached the actress about reprising her co-starring role in the re-boot of “The X-Files,” she was offered only one-half of the salary that her male partner, David Duchovny, had agreed to. From the Daily Beast’s shocking account:

The work Anderson put into securing equal pay back in the ’90s seemingly came undone when it came time to negotiate pay for this year’s event series. Once again, Anderson was being offered “half” of what they would pay Duchovny.“I’m surprised that more [interviewers] haven’t brought that up because it’s the truth,” Anderson says of the pay disparity, first disclosed in the Hollywood Reporter. “Especially in this climate of women talking about the reality of [unequal pay] in this business, I think it’s important that it gets heard and voiced. It was shocking to me, given all the work that I had done in the past to get us to be paid fairly. I worked really hard toward that and finally got somewhere with it.

“Even in interviews in the last few years, people have said to me, ‘I can’t believe that happened, how did you feel about it, that is insane.’ And my response always was, ‘That was then, this is now.’ And then it happened again! I don’t even know what to say about it.”

That’s all right, Gillian. I know what to say about it. This was not unfair, disrespectful. or an example of discrimination against women in the workplace. This is called negotiation, and there is nothing unethical about it at all.

Continue reading →

Ethics Quote of The Month: Fired Sony Executive Amy Pascal

/ Jack Marshall / 21 Comments
Good for you, Amy.

Good for you, Amy.

“Here’s the problem: I run a business. People want to work for less money, I’ll pay them less money. I don’t call them up and say, ‘Can I give you some more?’ Because that’s not what you do when you run a business. The truth is, what women have to do is not work for less money. They have to walk away. People shouldn’t be so grateful for jobs. … People should know what they’re worth.”

—Recently fired—because of those hacked e-mails—Sony Pictures chief Amy Pascal, in an interview with journalist Tina Brown at the Women in the World conference in San Francisco. She was addressing her e-mails revealing that actress Jennifer Lawrence was paid less than her male co-stars in “American Hustle.”

Take that, “77 cents for every dollar”!

My least favorite deceitful statistic took it on the chin with Pascal’s candid and accurate statement, and she ranks Ethics Hero status not just for saying it, but saying it in front of an audience full of women who have supported the lie while cheering and voting for politicians who repeat it.

A large chunk of the disparity between the salaries of men and women for the same jobs is not the product of bias or discrimination, but the natural consequences of females being raised to be less assertive, with lower self-esteem, and their resulting poor negotiating skills. Pascal is placing responsibility squarely where it belongs. This has been one more example of a traditionally mistreated group relying on victim-mongering rather than focusing on personal responsibility, accountability and honesty to address what is well within their power to fix.

Brava, Amy Pascal!

If Sony had any sense or principals, it would give you your job back.

Are His Accusers’ Lawyers Blackmailing Poor Bill Cosby?

/ Jack Marshall / 6 Comments
Poor Bill!

Poor Bill!

From ABC, as the Bill Cosby horror continues:

The 77-year-old comedian filed a lawsuit today against Judy Huth, who claims Cosby forced her to perform a sex act in 1974 at the Playboy Mansion, when she was 15.

In documents obtained by ABC News, Cosby alleges that not only is Huth lying but that she filed the lawsuit after failing to extort money from him. Cosby is asking a judge to dismiss the lawsuit and is seeking monetary damages from Huth and her attorney.

In his filing today, Cosby says Huth’s lawyer approached the comedian’s attorney, Marty Singer, last month and made “ominous references” to ‘criminal penalties.'” According to the lawsuit, Huth’s lawyer demanded $100,000 for her silence, and later increased the amount to $250,000 as additional women came forward.

“Through her lawyer, Plaintiff made extortionate claims to Mr. Cosby (through his counsel) about criminal penalties, coupled with ever-increasing demands for a six-figure payday to keep quiet about her long-since-expired claims,” the documents state.

The suit claims that after Cosby’s attorney rejected Huth’s claims and accused her of extortion, her attorney filed a lawsuit two days ago against the comedian.

In relation to this development, my indispensable story scout, Fred, asks:

“The legal profession must have some ancient and passionately held standards for how to offer a confidential settlement without sliding into blackmail, which Cosby’s lawyers accuse the plaintiff of doing. How do those work, and which side’s lawyers (if either) are most likely to be acting ethically?”

The issue is pretty ancient, all right, but it’s also murky, and has become murkier with passing years. Once upon a time, the American Bar Association had an ethics rule that said, “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Later the provision was dropped, on the theory that it was too vague and could constrain legitimate negotiation. Some jurisdictions, like the District of Columbia, New York and Connecticut, retained it, but they also emphasize the word “solely.” That means that a lawyer who says, “Pay my client $25,000 or we’ll get you charged for rape, and that will ruin you!” has probably breached the rule, while one who says, “Look, we want to handle this as quietly as possible, but if you won’t be fair, you’ll leave us no choice but to seek a criminal indictment. Just thought you should know” has tiptoed within the rule’s bounds. What’s the difference? Not much. Continue reading →