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

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

Gene Autry Misinformation Update: Believe It Or Not, It Happened Again!

"Wild Bill" Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway...

“Wild Bill” Donovan, who should have had nothing whatever to do with my ethics seminar today, but did anyway…

Yesterday I wrote about a lawyer in a legal ethics seminar interrupting me with a revelation about Gene Autry that was completely false.

Today I taught another legal ethics seminar, this time for a government agency. I was discussing was the various government ethics dilemmas in “Bridge of Spies,” the story of how lawyer Jim Donovan helped secure the release of downed U.S. flyer Francis Gary Powers in a famous incident during the Cold War. Many of the issues covered in my presentation were explored in this Ethics Alarms post.

As the film portrays it, Donovan, an insurance lawyer, does such a tenacious job defending an accused Soviet spy from U.S. government prosecution that the CIA recruits him to broker the trade of his now-former client, convicted and in prison, for Powers. In discussing the classic government lawyer dilemma of “who is the client?,”  I noted that the CIA agent who recruited Donovan told him that he would have no client. “Why did the CIA trust Donovan?” I asked socraticly. “Why did Donovan, an insurance lawyer, think he was qualified to engage in this kind of representation, it it was a representation?”

For the second time in nine days, an attendee piped up with an amazing piece of information.

“I suspect some of the answer to both questions is that James Donovan was the son of “Wild Bill” Donovan, who is considered the father of the Central Intelligence Agency,” he said. Continue reading

The Real Legal Ethics Conundrums In “Bridge of Spies”

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

Post-Debate Ethics, The Final Question: Will The GOP Be Unethical If It Rejects Trump?

Republican_Party

When I first planned this post, I had seen only one column that argued that the GOP could not fairly refuse to nominate Donald Trump if he comes to the convention having won the most primary contests and delegates. Since then, I have read many more, as well as statements from various Republican leaders to that effect.

All of them are very, very wrong.

In the law, we look at this as a “who is the client?” question. To whom does the Republican Party owe its primary loyalties? What is the party’s purpose, and how does it best accomplish it? The answers to these question dictate its actions regarding Donald Trump’s fate.

Neither the election process nor the nominating process involve direct democracy. If the only purpose was to determine which candidate the citizens who consider themselves Republicans want to have on the ticket, a national primary would do the trick, and the party would barely be anything but a bystander. That is not the objective, however. The objective is to identify the most qualified and competent individual who represents the values of the Republican Party, and who has, in the judgment of professionals whose job is to discern such things, the best chance of winning, and to present him (or her) to the American public for their judgment, in order to maximize the likelihood of a fit and admirable citizen undertaking the awesome responsibility of leading the United States of America, and ensuring the success and survival of the nation, as well as the vital principles it represents to the world.

In the pursuit of this objective, the Republican Party has many stakeholders..itself, to begin with.  As a public institution, the party’s survival depends on the public perception that it is performing its duty competently and with the dignity and transparency such a role requires. Another group of stakeholders are its citizen members, who joined the party, contribute to it, volunteer their time, and give the benefit of many doubts to the party’s candidates in the polling booth. These citizens expect the party not to embarrass them, at a minimum, and ideally to actually accomplish some of the goals and policy measures the party’s principles support.

Non-Republicans are also stakeholders. If the parties do not do perform their duties with seriousness, diligence and skill, then the citizens will be faced with poor choices and unsatisfactory alternatives  on election day.

Ultimately, the Republican Party, like the Democratic Party, must regard its most important stakeholder as the United States of America. The President is both the symbol of the nation abroad and the embodiment of its hopes, ideals, history and continuity domestically. If the parties choose their candidates irresponsibly, then the nation itself is at risk. And as history has shown again and again, the world needs a vibrant and thriving United States of America. The planet itself has a stake in how well the Republican Party does its duty.

In the priority of Republican Party stakeholders, or “clients,” the candidates themselves are at the very bottom of the list. They exist to serve the party’s needs and responsibilities, not the other way around. True, they invest their time, money and passion in the task of proving themselves worthy of nomination, and they have a right to expect that the process they are engaged in will be consistent, reasonable and fair. They must understand, however, that the process, in the end, is not about them, but about fulfilling the responsibility of finding a worthy candidate for the office of President of the United States.

In a process that was designed to identify worthy candidates, Donald Trump has proven beyond a shadow of a doubt that he is unworthy. He had, in fact, proven that long, long ago, and the GOP’s leaders were foolish to allow him to run for the party’s nomination. It provides me some rueful amusement to read Senator Lindsay Graham’s comments yesterday that the GOP should have kicked him out of the party. Why, yes, Senator, I pointed that out more than six months ago, and it was obvious then.

Since that time, Trump has provided myriad justifications for declaring him persona non grata. The first time he engaged in name-calling and vulgarity, he should have been given an ultimatum. His personal attack on Megyn Kelly was sufficient to remove him; his conduct regarding the handicapped reporter, towards John McCain and prisoners of war; his attacks on George W. Bush and Mitt Romney, threatening to sue Ted Cruz—on and on, you know the litany. The party has an obligation not to present as its standard bearer a candidate who does not embrace and cannot be trusted to support its values, ideals and principles, and Trump has made it inarguable that he does not.

Moreover, the evidence of his lack of fitness to be President accumulates daily, and at an accelerating rate: Continue reading

The Loyalty Problem: Fundamental Ethics Confusion at Mount St. Mary’s University

Mt st mary

Loyalty is an ethical virtue; the whole concept of duty often depends on it. Loyalty is also the most dangerous of all ethical principles. Misapplied, misinterpreted, followed blindly or carried to extremes, it can lead to absolute wrong. A current controversy at Maryland’s Mount St. Mary’s University illustrates how.

A reliable source obtained information that the school’s president, Simon Newman had argued that the school needed to be ruthless in maintaining high standards by getting rid of less competitive students, and had done so by telling colleagues opposing him, “This is hard for you because you think of the students as cuddly bunnies, but you can’t. You just have to drown the bunnies…Put a Glock to their heads.”

The student newspaper reported the conversation, which Newman hasn’t denied, and it was duly published in The Mountain Echo, the student newspaper.

Shortly after the “scoop,” The Mountain Echo’s faculty advisor Ed Egan was fired by Newman for violating the “code of conduct and acceptable use policies.” During the same period in which Egan was fired,  Newman did a Michael Corleone on some other “disloyal” lieutenants.” Thane Naberhaus, an associate professor of philosophy, was dismissed after criticizing Newman’s policies, and David Rehm, was stripped of his role as provost after questioning university policies.

The dismissal letter to Naberhaus, signed by Newman, said “As an employee of Mount St. Mary’s University, you owe a duty of loyalty to this university and to act in a manner consistent with the duty. However, your recent actions, in my opinion and that of others, have violated that duty and clearly justify your termination.”  Ed Egan says that he was also told that he had been “disloyal.”

I can’t speak to the dismissals of the other employees, but in the case of Egan, his loyalty was where it should be. President Newman doesn’t understand his own job, or the ethical principles applicable in academia. Continue reading