statute of limitations

Morning Ethics Warm-Up, 10/1/2018: Of Boies, Drunks And Maryland…

/ Jack Marshall / 7 Comments

Welcome, October!

In vaudeville terms, ethically speaking, this is like following a dog act…

1.  More on the strange legal ethics of David Boies. I am currently teaching the David Boies-Harvey Weinstein-New York Times fiasco as a main feature of all of my legal ethics seminars. (You can read the original post here) To its credit, the Times recently did a feature on Boies including his side of the story, which is, I found, not very mitigating. It also had this passage:

For his part, Mr. Weinstein showered Mr. Boies with invitations for opening-night parties and celebrity-studded charity events. The Weinstein Company put one of Mr. Boies’s daughters in the hit 2012 film “Silver Linings Playbook,” and also distributed a movie she produced, “Jane Got a Gun.” Along with the son of one of his law partners, Mr. Boies formed a film production company, which invested $5 million each in two Weinstein films, “Gold” and “The Upside,” both flops.

These entanglements may have colored Mr. Boies’s objectivity and judgment about Mr. Weinstein. But they weren’t, in the legal sense, a conflict of interest. They more closely aligned Mr. Boies’s interest with his client’s, which as far as the bar is concerned is a good thing.

I don’t know what bar the Times is talking about, because a lawyer “aligning” aclient’s interests with a client is not “a good thing,” but a condition that interferes with a lawyer’s independence and objectivity. It creates a personal conflict of interest that not only has to be waived by the client, but which the lawyer must reasonably believe will not affect his representation.

This comments to ABA Model Rule 1.8 make it very clear that significant gifts to clients (in this I would include gifts and benefits to family members) are ethically perilous at best:

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except where the lawyer is related to the client as set forth in paragraph (c).

Why don’t bars just declare lawyers accepting significant gifts and favors from clients as inherent conflicts of interest that reek of the appearance of impropriety?

The answer is that lawyers like getting gifts from rich clients, and lawyer associations tend not to interfere with things lawyers like to do. Continue reading →

Indeed He Deserved All Of It, But Denny Hastert’s Sentencing Hearing Was A Legal And Ethical Travesty

/ Jack Marshall / 22 Comments

Hastert sentencing

“I am deeply ashamed to be standing here,” former Speaker of the House Dennis Hastert  told a judge yesterday at his sentencing hearing.  “I know why I am here … I mistreated some of the athletes that I coached.”

Wait…what? That’s not why Hastert was in court at all. He was before a judge for one reason: he violated banking laws and lied to the F.B.I.. The fact that he was a sexual predator and molested members of the wrestling team he coached many years ago is not the reason he was in court. It couldn’t be. The statute of limitations on all of those crimes, horrible crimes all, had expired. Hastert couldn’t be charged, tried or convicted of any of them.

I don’t understand why this hasn’t been the focus of the coverage of Hastert’s ordeal yesterday. Why did the judge think it was appropriate to “angrily” lecture him about his crimes that in the eyes of the law he must be considered innocent of by the legal system, because he cannot be found guilty of these crimes any more?

“‘If Denny Hastert could do it, anyone could do it,'” U.S. District Judge Thomas M. Durkin said. “Nothing is more stunning than to have the words ‘serial child molester’ and ‘speaker of the House’ in the same sentence.” Well, that’s very interesting, Judge. If  the late Ted Kennedy had been before you to be sentenced for, say, just a wild hypothetical, a drunk driving charge, would you lecture him about letting Mary Jo Kopechne drown in his car?

I may have missed it, but when O.J. Simpson was sentenced for burglary, I don’t recall the judge asking him to confess to murdering Nicole and Ron…did that happen?

Earlier this month, the judge and prosecutors allowed the trial to become a proxy trial for a crime that wasn’t on the docket, with prosecutors hammering at graphic details about the sex-abuse, describing how Hastert would sit in a recliner in the locker room with a direct view of the showers. The victims, prosecutors said, were boys between 14 and 17. Hastert was in his 20s and 30s. This is relevant to the charges against Hastert how, exactly? Answer: They aren’t. Continue reading →

The States’ Inexcusable Incompetence In Rape Cases

/ Jack Marshall / 12 Comments

rape kits

If anyone can think of a good explanation for this outrage, please enlighten me.

Massachusetts has a 15-year statute of limitations on prosecuting sexual assault crimes, but the state only requires that untested rape kits be stored for six months.  No state currently provides the victim of an alleged sexual assault the right to require a jurisdiction to retain a rape kit until the statute of limitations expires, and only six states and Washington, D.C., provide a right for the prompt processing of a rape kit.

How can this be? Why wouldn’t it be obvious that as long as it is possible that rape charges can be brought, the relevant rape kit must be preserved? Continue reading →

Legally Competent, Ethically Bankrupt: The Zealous, Despicable Monique Pressley, Esq.

/ Jack Marshall / 53 Comments

cosby-women-new-york-magazine-w724

Bill Cosby’s lawyer Monique Pressley decided to become a hybrid attorney-publicity agent yesterday, and in doing so provided an impromptu seminar on why people hate lawyers, and often should. She was carefully spinning and dissembling on behalf of her client without breaching the ethics rules against lying, parsing words and phrases with skill and deftness, all in the service of a serial sexual abuser and perhaps the greatest hypocrite pop culture has ever produced.

Brava!

Also, Yeeccch!

The impetus for her media spin tour, for that is all it was, is the New York magazine issue that features the stories of 35 of Cosby’s accusers. First Pressley told CNN’s Ashleigh Banfield that the women were comparable to a lynch mob: Continue reading →

The Bill Cosby Follies: Idiotic Blog Post, Atrocious Apology, Lame Justification…Thanks, “TheWrap,” For This Lesson In First Amendment Abuse

/ Jack Marshall / 6 Comments

thewrap-logo

TheWrap is a web Hollywood news and gossip site. Picture TMZ crossed with Gawker.  It published an immediate candidate for the most unethical blog post of the year, always a closely contested category, a piece of cyber-offal by an industry writer named Rich Stellar that issued a combined attack on the women coming forward to prove Bill Cosby is a serial rapist, and the media’s coverage of it. I was happily unaware of Stellar, barely aware of The Wrap and definitely unaware of this utter crap until it was flagged in a Salon piece, which was in turn flagged by one of my indispensable scouts, Fred. What unfolded before me was a horrible spectacle of a despicably and dumber than a box of rocks opinion piece that no competent editor should allow to avoid the trash, a subsequent apology of sorts from the writer that shows such an ethics deficit that he should probably have a 24-hour keeper, and, finally, his editor’s defense of her wretched editorial judgment based on the theory of the First Amendment, which she appears to think means “You have to publish any garbage any fool writes no matter how poorly conceived or reasoned, or you are unAmerican.”  But I am getting ahead of myself.

The Blog Post.

Read it all if you dare. Here’s Stellar’s money quote, which distills most of the cretinism without forcing you into Hell: Continue reading →

Why We No Longer Trust Our Government, Reason #759: North Carolina’s Unethical Tax Stall

/ Jack Marshall / 2 Comments

Every time Gallup  does a poll to find out who the public thinks is ethical and unethical, one result always comes out the same. Over 95% of those polled will say that most ethical person they know is…themselves. I used to make fun of this result in my seminars as a classic example of self-delusion. The used-car dealer really thinks he is the most ethical person he knows? Tom Delay and Charlie Rangel really think that they are the most ethical people they know? I don’t believe it.

But I recently had an epiphany. People don’t really think they are the most ethical. What we do think is that each of us is the one person  that we most trust. Not our spouses, not our parents, not our employers, not our elected officials…no matter how virtuous they may be, the person whom we know, with absolute certainty, won’t betray us  is our self. That is an especially American attitude, embodying self-reliance, autonomy, and independence, and I was wrong not to misread it. Those who deride us for not trusting the government to solve our problems are wrong not to recognize it too, particularly when the attitude is being reinforced by stories like this one, from North Carolina.

The North Carolina Department of Revenue is reviewing  230,000 unresolved tax returns going back to 1994, including cases in which taxpayers overpaid and are owed money by the state. The state, however, has rigged the rules to make it less likely that the refunds are ever made. Continue reading →