The Golden Rule

Apology: How I Became an April Fool and an Ethics Dunce

/ Jack Marshall / 37 Comments

I’m not going to spin this. My conviction that the web hoax engineered by trial lawyer/blogger Eric Turkewitz violated the legal ethics rules was the product of a toxic mix of factors, prime among then being that I didn’t review my own files. When I finally, after nearly two days of answering complaints when I should have been hitting the books, checked the Rules of an ethics bellweather state that I often work in but had not for longer than usual, I read this:

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the
lawyer’s fitness to practice law;

This is an unusual version of Model Rule 8.4; indeed, the only other state to have adopted it (I think—I am no longer sure of much) is Wyoming. Yet it is a very useful variation of the Model Rule, because it eliminates all ambiguity about whether “dishonesty, fraud, deceit or misrepresentation” is meant to be as sweeping as it sounds. This formulation makes it clear that non-legal practice violations are covered, but that they have to reflect adversely on the lawyer’s fitness to practice law to qualify.

I had been wallowing in obscure clues from other jurisdictions–Tennessee, for example, which has the ABA wording but an odd Comment that begins…

[4] Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law…

This could be taken to mean that all such conduct reflects adversely on fitness. The problem is, I don’t believe that, and I don’t believe that Tennessee means that.

The 8.4 version that I found was from…Virginia. Where I live. Where I have done more ethics CLE than anywhere else, beginning before the state even adopted the Model Rules format. Seeing this, two conclusions were unavoidable:

1. This is the predominant way jurisdictions think about 8.4. No state has rejected Virginia’s approach, and several have referenced it in Legal Ethics Opinions on the topic of what kind of non-legal practice-related conduct is covered by the Rules—-not subject to discipline, as I was arguing the past two days, but covered at all. The D.C. Bar has such an LEO, number 323, from 2004. I had a copy on file. The District of Columbia, where I’m a member of the bar.

2. I had made a big and inexcusable mistake, and compounded it by acting like the King of the Jerkwads. Continue reading →

Accountability, the Phoebe Prince Suicide, and the Golden Rule’s Limitations

/ Jack Marshall / 35 Comments

Sometimes the application of the Golden Rule actually leads us away from an ethical result.

The suicide of a 15-year-old South Hadley, Mass girls who had been the victim of bullying and web attacks by fellow students continues to be framed as the failure of school administrators to protect the girl. What the school knew and when they knew it is the object of current investigation and controversy, but there is an inherent public and media bias in such cases that is rooted in laudable ethical motivations, indeed, it is rooted in the Golden Rule. But that bias often results in unfairness and injustice. Continue reading →

Art Ethics: We Are Not Bowls of Fruit

/ Jack Marshall / 5 Comments

During his legendary questioning by Clarence Darrow in the Scopes trial, Williams Jennings Bryan famously answered one of Darrow’s queries by saying, “I don’t think about things I don’t think about.” (Darrow’s rejoinder: “Do you think about the things you do think about?”)  One of the ethical issues I hadn’t thought about was whether an artist drawing a subject in public without his or her consent is being unethical. Thanks to a post by an inquiring artist on an art blog who heard the faint ringing of an ethics alarm in his head, I’m thinking about it now, and it is trickier than you might think.

Once the artist starts rolling, he has a lot of ethics questions: Continue reading →

Death Video Ethics

/ Jack Marshall / 2 Comments

As with the video of the fatal luge run at the Olympics, as with 9-11 videos of the Twin Towers crashing down, pundits, lawyers and family members of a victim are arguing in courts of law and public opinion that the visual record of their loved one’s death should be off-limits for public. The family of Dawn Brancheau, the SeaWorld trainer who was drowned last month by a six-ton Killer Whale that held her underwater by her ponytail,  has announced that they will seek an injunction to stop the release of the death videos, captured by SeaWorld’s surveillance cameras on Feb. 24. Once the official investigation is complete, the video could be made widely available on YouTube and elsewhere. The family understandably does not want their daughter’s last moments to become a source of web entertainment. Continue reading →

“It’s Just Sex”? No, It’s Betrayal

/ Jack Marshall / 7 Comments

There isn’t much good that can come out of the sordid infidelity Trifecta of John Edwards, Tiger Woods, and Jesse James, but maybe there will be this: Perhaps after the public has observed and measured all the pain and suffering the outrageous conduct of these three men has inflicted on innocent third parties, especially those who depended on them and trusted them, it will not be so quick to accept the facile argument, perfected during Bill Clinton’s ordeals, that adultery is “just sex.”

The latest flagrant celebrity dog, Jesse James, is an especially powerful case for leaving the Clinton Excuse with Clinton. He had a wife who clearly adored him, the late-marrying Sandra Bullock, who touchingly paid a tribute to her supposedly devoted husband in one of her several Best Actress acceptance speeches this year by saying that she knew he “had her back.” Now tattoo models and strippers are coming out of the woodwork to say they had affairs with the chopper-maker, and the revelations may end up sending his six-year old daughter back to her porn star mother, though James and Bullock had been awarded custody.

Destroy a family, devastate the woman who loves you, uproot your child. But hey, it’s only sex. Continue reading →

E-mails Aren’t Private? Oh-oh…

/ Jack Marshall / 2 Comments

The Eleventh Circuit Court of Appeals has ruled in the case of Rehberg v. Paulk that one who sends an e-mail has no “expectation of privacy” in its content, once it is sent to a third party—-and that third party can even be the internet service provider. Which means, in essence, that e-mails aren’t private any more, if this ruling stands.

Here you have a good example of how courts can re-define formal ethical standards on multiple planes with a few words. This means that one of the most influential Federal Courts has given the green light to any government agency or employer who chooses to read your e-mails. It may well be that lawyers who send documents containing confidential client information have breached their duty to protect confidences. It means that if your room-mate reads confidential messages on your laptop without your permission, the law says its your fault, not his.

This is the point where ethics, manners and the Golden Rule becomes more important than ever. The court case may change the law, and it may be legal to read other people’s e-mails without permission, but it’s still not right.

For an excellent scholarly dissent from the Eleventh Circuit’s ruling by Prof. Orrin Kerr, see his argument on the Volokh Conspiracy.

[Many thanks to Prof. Monroe Freedman whose post at the Legal Ethics Forum alerted me to both the case and Prof. Kerr’s critique.]

Astrology Ethics

/ Jack Marshall / 7 Comments

Considering absurd hypotheticals can still be valuable. Consider this ridiculous question from a site with the tautological title, “Astrology or Superstition?” :

“Would it be unethical to use astrology to gain advantage over someone in the work environment?”

Obviously not, because astrology is a crock. But if it were not a crock, what would the answer to this question be? Continue reading →

Gawker Asks: “Why Were the Democrats So Ethical?”

/ Jack Marshall / 2 Comments

One could hardly find a more illuminating window into the unethical political and media culture festering in this country than to read today’s “scoop” on (yecch!) Gawker, the celebrity-stalking, rumor-mongering website that makes TMZ look like The Economist.  Its breathless lead:

“Did you know that Scott Brown—the new star Republican Senator—was accused of harassing a female campaign worker in 1998? We have the documents to prove it. Did the Democrats blow an opportunity to keep their 60th Senate seat?” Continue reading →

Ethics Dunce: Itawamba County, Miss. School Board; Ethics Hero: Constance McMillan

/ Jack Marshall / 3 Comments

It will be interesting, as well as depressing, to see how many innocent bystanders are injured as various institutions and organizations emulate Washington D.C.’s Catholic Charities’ “solution” to its objection to  gay Americans having legally enforced rights to do what anyone else can. That organization’s draconian solution was that if a benefit can’t be withheld from gays, then the benefit isn’t worth giving. Thus, because it believed that providing health benefits to the now legally recognized same-sex spouses of gay employees would imply endorsement of conduct it considers sinful, the charity eliminated spousal benefits for all new employees, harming the innocent to show contempt for…well, the innocent.

Who could pass up logic and justice like that? Not the Itawamba County, Miss. school board! Continue reading →

Everyday Ethics: The Dilemma of the Tardy Warning

/ Jack Marshall / 4 Comments

Not for the first time in my life, the Dilemma of the Tardy Warning is causing me sleepless nights.

By random chance I encountered a gentleman who worked in my field, and we had a phone conversation. He was pleasant and flattering; his projects sounded both interesting and like possible complements to my own. We exchanged e-mails, and he sent me some materials. I said that I would contact him to set up a face-to-face meeting, and meant it.

Then I casually mentioned him to some colleagues, who reacted as if I had announced a planned liaison with the Marquis de Sade. Continue reading →