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Morning Ethics Warm-Up, 10/17/18: Travel Hell Edition

/ Jack Marshall / 22 Comments

Good Morning from Virginia Beach, VA…

…where I am giving a legal ethics seminar to a law firm this morning!

1. Count the ethics issues in Travel Hell…This story is true, and I’m not changing any names, because nobody is innocent.

Last night I had to drive to Virginia Beach after another seminar in D.C., and after yet another road trip on family business. It turned out to be a three and a half hour drive in a pouring rain. Arriving at 2:20 am at the Virginia Beach Westin, where I was supposed to have a room, I was immediately informed by the graveyard shift desk clerk that we could not stay there…because the previous occupants of the room reserved for us (my wife and business partner also made the trip) had “left fecal matter” all over the room, creating a HAZMAT situation. Not to worry, though! The beachfront Hilton would put us up, at the Westin’s expense!

Since I wasn’t paying for the room, this was small consolation.

Of course, we had unloaded the car, and the Hilton was 20 minutes away, and the desk clerk had neither an address nor a phone number, which I pointed out to her was essential. (The point of staying at the Westin was that it was convenient to the location of the law firm.) So we loaded up the car and set out to the new destination, arriving just before 3 am. There, the Hilton desk clerk told us that the hotel had just begun an audit, and we could not be put in a room for at least 20 minutes. I was literally afraid to tell my wife this, as she was in the car alternately fuming and wincing in pain because the endless trip had revived her sciatica.

I was not nice to the Hilton desk clerk, who swore that she told the Westin about the problem, and that they should have told us. I said that I didn’t care whose fault it was, they were now responsible for two weary travelers, and that it was her responsibility to fix the problem. She found a very nice man who got a big tip from me for taking charge of our vehicle and taking our stuff up to our room when the “audit” was over.

Once in the room, we discovered that two of the lamps didn’t work, the desk lamp was missing, and the clock was blinking. I told the clerk to send someone up and have the room in the shape I expect hotel rooms to be in before I walk in the door—including having the clock set and functioning.

On the plus side, no fecal matter was in evidence….

2. Why people hate lawyers…Branson Duck Vehicles and Ripley Entertainment are facing multiple lawsuits in the horrific duck boat accident that killed 17 people in Missouri , including nine members of a single family. In court papers filed this week, the companies’ lawyer cited an 1851 maritime law to limit or eliminate liability for the July tragedy.

In a filing in federal court in Missouri, the defendants denied negligence in the sinking of the boat, and argues that if a court does find negligence, they have no liability because, under that law, “the Vessel was a total loss and has no current value. No freight was pending on the Vessel.”

The reaction was predictable. Human beings have no value? This was a Hail Mary defense tactic to be sure, but if that’s the clients’ best option, it is the lawyers’ duty to argue it, IF they first inform their clients that it is a likely public relations disaster that as a cure could be worse than the disease, and seems unlikely to do anything but inflame a jury.

Morning Ethics Warm-Up, 7/19/2018: The All-Denial Edition

/ Jack Marshall / 36 Comments

Good Morning!

On this day in ethics, 1918: Washington catcher Eddie Ainsmith claimed that he should be deferred from the draft because he was a major league baseball player. Uh, nice try, Eddie, but no,  Secretary of War Newton D Baker ruled, as he tried to suppress uncontrollable eye-rolling..

1. “California, here I come!…here I come!…here I come!…” Oh. Never mind. The California Supreme Court took a measure off the ballot that would have allowed Californians to vote on whether the state should be divided into three smaller states, like this:

In its opinion, the Court argued that the changes demanded by the ballot measure exceeded California voters’ broad authority to enact laws by initiative, established in 1911. If enacted, the measure would have in effect abolished the state Constitution and all existing laws, which would have to be replaced by lawmakers  in the three new states. The measure would also alter the laws that define California’s boundaries, amending the state Constitution. That cannot be done by initiative, but instead requires approval by two-thirds of both houses of the Legislature to be placed on the ballot.

I know that the splitting up of California was a transparent effort to hijack the Senate by adding four more guaranteed Democrats. It was also doomed, since this plot would need to pass Congress and not be vetoed by the President. Still, wouldn’t something as obvious as violating the state Constitution arise before the wacko measure was placed on the ballot? How incompetent can you get? How much more incompetent can California get?

2. THIS will end well… Facebook claims that it will be removing false information from its pages when it threatens to cause violence, before it will cause violence. Sure, we all trust Facebook as an objective, trustworthy arbiter of speech, don’t we? Don’t we? Especially since they use the ever-reliable Snopes to check. During an interview with ReCode’s Kara Swisher, Mark Zuckerberg cited Holocaust denials as the kind of misinformation Facebook would allow to remain on the platform.  “At the end of the day, I don’t believe that our platform should take that down because I think there are things that different people get wrong,” Zuckerberg told Swisher. “I don’t think that they’re intentionally getting it wrong.”

He doesn’t? I’m not sure Holocaust denial is automatically eligible for Hanlon’s Razor; on the other hand, there are good faith idiots. Speaking of idiots, Zuckerman was surprised when his ignorant shrug sparked angry attacks like that of Jonathan Greenblatt, CEO of the Anti-Defamation League, who said, “Holocaust denial is a willful, deliberate and longstanding deception tactic by anti-Semites that is incontrovertibly hateful, hurtful, and threatening to Jews.Facebook has a moral and ethical obligation not to allow its dissemination.”  Continue reading →

That Settles It, If It Wasn’t Obvious Already: Lisa Bloom Is An Unethical Hack (But I Could Be Wrong…)

/ Jack Marshall / 31 Comments

Now, don’t sue me, Lisa! Remember what it says in the “About” section (above), this is all just my opinion. When I say you are a stunningly unethical lawyer, that’s just my analysis; it’s true I know something about legal ethics, teaching and consulting on it full time, but I can’t assert my opinion as fact. I can’t read your mind or slog through your soul. I don’t know what a bar disciplinary committee would decide, though I know this is a famously gray area in legal ethics, so unethical conduct is unlikely to be punished.  And when I say you’re a hack, remember that “hack” isn’t a description subject to objective proof, any more than, say, “asshole.” Perhaps your definition of “hack’ is different from mine. In fact, I’m sure it is.

That said, your conduct is a professional disgrace. I think. Who knows? I may be wrong.

In an interview with BuzzFeed News published this weekend, Bloom, speaking of her recently terminated representation of Harvey Weinstein, said

“I can see that my just being associated with this was a mistake. All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

Bloom added that she will no longer represent men accused of sexual misconduct, “even those who convincingly tell me they are innocent….I will just make the best choices I can out of every situation. I have clearly not been successful. I think anybody who does big bold things fails. And I definitely failed on this one.”

What Bloom has failed at is called “being a trustworthy and competent lawyer.”

The next day, during an appearance on Good Morning America, Bloom even more explicitly threw her former client under the metaphorical bus:

“It’s gross, yeah,” Bloom told GMA. “I’m working with a guy who has behaved badly over the years, who is genuinely remorseful, who says, you know, ‘I have caused a lot of pain.’”

Did Bloom actually graduate from law school, or did she just apprentice in her mother’s office (she is Gloria Allred’s daughter) and somehow get an honorary license? Did she never learn about the a lawyer’s duties of loyalty and confidentiality? She obviously didn’t know about conflicts of interest, since she represented Weinstein while agreeing to let him turn her book into a TV miniseries.

Ethics Alarms has previously criticized lawyers who have publicly undermined their former clients. The most recent example  was last year, when a former Trump lawyer used his experiences while representing the future Presidential candidate decades earlier to write a scathing mid-campaign attack on his former client in the Huffington Post. I wrote,

There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession.

Continue reading →

Here’s Something The News Media Hasn’t Explained Regarding The Weinstein Scandal: Those Victim Confidentiality Agreements Are Unethical, And Maybe Illegal

/ Jack Marshall / 5 Comments

Rose McGowan, the new Sexual Harassment Fury on social media, says she was raped by Weinstein and had to accept a $100,000 settlement with a confidentiality agreement as a condition of the deal. That means that if she subsequently told her story and accused Weinstein, she would be liable for damages, and would have to return the money. Right?

Not exactly. Most of the accounts in this sordid series of events make it seem like confidentiality agreements are iron clad and enforceable. Often they are neither. McGowan’s almost certainly wasn’t.

Debra Katz, an attorney specializing in sexual harassment law suits, recently explained that if employees or former employees came forward with information about Weinstein participating in criminal misconduct, their non-disclosure agreements or confidentiality agreements would probably be unenforceable, saying,

“These kind of very broad NDAs or confidentiality agreements typically violate public policy. Employees have to have the legal ability to discuss any concerns about unlawful behavior in the workplace … These broad provisions that would effectively silo people, make them feel like they can’t speak about this, are simply an instrument to put fear in people.”

My position has always been that lawyers who construct such agreements, knowing that they are unenforceable, are committing sanctionable ethical misconduct. The lawyer for the employee being silenced, moreover, has an obligation to let the client know that the requirement is unconscionable. Of course, it’s the client’s decision whether she wants to take the money.  It is also unethical to make an agreement you have no intention of honoring. Continue reading →

Morning Ethics Warm-Up, 10/11/2017: Words, Debt, And Costumes

/ Jack Marshall / 21 Comments

Good morning from Richmond, Va.!

1 Passengers keep piling onto the Harvey Weinstein Ethics Train Wreck:

  • Fashion designer Donna Karan, questioned about Weinstein at an event, said in part:

“I also think how do we display ourselves? How do we present ourselves as women,” Karan said to the Daily Mail. “What are we asking? Are we asking for it by presenting all the sensuality and all the sexuality?”

Then she pointed to Weinstein’s achievements, and said Weinstein and his wife were “wonderful people.”

(Note to the designer: men who use their power to harass and assault women are not wonderful people by definition.)

After the predictable response to these idiotic comments, Karan protested that her quote was taken out of context, as if the context wasn’t Harvey Weinstein, and issued a low level apology that could only mean, “I’m deeply sorry I said something in public that reveals the miserable level of my values.”

  • Lindsay Lohan, currently in exile in Great Britain and Dubai, used social media to remind her fans in the US that she is, after all, a moron, writing on Instagram,

“I feel very bad for Harvey Weinstein right now. I don’t think it’s right what’s going on….He’s never harmed me or did anything to me – we’ve done several movies together.I think everyone needs to stop – I think it’s wrong. So stand up.”

One of the real benefits of social media is that it reveals the total lack of ethics comprehension, reasoning ability and life competence that inflict so much of the public, including celebrities. With clarity of thought like that, is there any mystery regarding how the once rising star managed to mangle her career despite beauty, talent, and early success?

  • NBC was presented with the Weinstein story before it was broken by the New York Times, says Ronan Farrow, the author of a new Weinstein investigative piece in The New Yorker. The network hasn’t said why. Does it have to? Weinstein was close to both the Clintons and the Obamas, and the scandal directly implicates the Democratic party and its core supporters….like NBC. It is fascinating to watch cable and network anchors and guests desperately try to analogize Weinstein to President Trump, but the Hollywood mogul was enabled by self-righteous liberals and was given the King’s Pass (with an assist from the Saint’s Excuse) because he gave to Planned Parenthood and Hillary, making him, in Donna Karan’s words, “wonderful” by definition. The analogy is Bill Clinton, of course, and any journalist who refuses to acknowledge that has confessed crippling partisan bias.

2. This brings us to a quote by blogger Ann Althouse:

“My hypothesis is that liberals — including nearly everyone in the entertainment business — suppressed concern about sexual harassment to help Bill Clinton. Giving him cover gave cover to other powerful men, and the cause of women’s equality in the workplace was set back 20 years.”

Her hypothesis is correct, and I said so when the liberals, feminists, abortion zealots, artistic community and others circled their wagons around Clinton during the Lewinsky scandal. This is one reason why Hillary’s campaign stance as standard-bearer for women’s rights and victims of sexual assault was so grotesque.

Here’s another quote from Althouse that I like:

“Who are the women who accepted the deal as offered by Harvey Weinstein? Will their names be kept out of the press? Should they?…

…So much silence facilitating so much harm! Should the women who took the bargain and got what they wanted out of it be regarded as victims and entitled to keep their names secret, or are they part of a system that hurt many others, and subject to outing.”

I’ve answered this question in various comments on previous posts, much to the unhappiness of readers who believe that victims who remains silent and thus allow evil to continue shouldn’t be criticized. The women are part of the system, and accountable. Continue reading →

Here We Go Again: Harvey Weinstein, Lisa Bloom And The Thing About Lawyer Ethics That The Public And The News Media Just Cannot Seem To Grasp

/ Jack Marshall / 21 Comments

LawNewz writes, and in so doing wins a Legal Ethics Dunce so easily that I’m not even going to bother,

Feminist attorney Lisa Bloom, who has represented dozens of women against accused sexual harassers like Donald Trump and Bill O’Reilly, is now representing an alleged sexual harasser. In, quite frankly, a shocking move, Bloom agreed to give her “advising” services to film studio executive Harvey Weinstein, who is accused of harassing women over a thirty-year timespan. Immediately, many in the legal world wondered what would motivate such a principled women’s rights advocate to represent a man facing such sordid accusations.

Weird! I have the strangest feeling I have been here before…it’s Ethics Alarms déjà vu!

No, I have been here before, and if you’ve read the blog regularly, so have you, like here, for example, when the post was called,  No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes.or here, when I defended Hillary Clinton….yes, you read that right…when she was being called a hypocrite for once defending not only a child rapist, but a guilty child rapist.  Then there was this post, when liberal icon Larry Tribe was representing a coal company. Bloom, Tribe, Estrich and Hillary all have the same defense, not that lawyers should need a defense for being lawyers.

Let’s see…I think I’ll quote myself from the Hillary piece this time… Continue reading →

Coincidence, Ethics Violation, Or A Playground Rhyme Come True: The Lawyer’s Burning Pants

/ Jack Marshall / 17 Comments

I love this story!

 Miami defense lawyer’ Stephen Gutierrez shocked onlookers when his pants burst into flames mid-trial as he was addressing the  jury. Gutierrez was defending a client  accused of intentionally setting his car on fire in South Miami. Yes, it was an arson case. He had just begun his closing argument when smoke started billowing from his pants pocket.

By sheer coincidence I’m sure, the lawyer was arguing that the defendant’s car spontaneously combusted—just like the lawyer’s trousers!— and was not intentionally set on fire. Observers told police that Gutierrez had been fiddling in his pocket right before his pants ignited. He ran out of the courtroom, and the jurors were ushered out as well. After  Gutierrez returned unharmed, he told the judge that  it wasn’t a staged  demonstration gone horribly wrong, but just a coincidence. A faulty battery in his e-cigarette had caused the fire.

In an arson trial.

During closing argument.

Where the defense was “spontaneous combustion.”

Okay!

Jurors convicted Gutierrez’s client of second-degree arson anyway. Miami-Dade police and prosecutors are now investigating the episode, and Miami-Dade Circuit Judge Michael Hanzman is deciding whether to hold him in contempt of court.

Comments: Continue reading →

From The Sally Yates Misinformation Files: Senator Diane Feinstein, Ethics Dunce And Incompetent Elected Official Of the Month

/ Jack Marshall / 33 Comments
Biased, hypocritical and ignorant is no way to go through life, Senator...

Biased, hypocritical and ignorant is no way to go through life, Senator…

Adding to the ignorance and misinformation drowning ethics comprehension regarding the Sally Yates affair, Sen. Feinstein used her questioning of Attorney General designate Jeff Sessions this morning to misrepresent the ethical duty of that office. (I don’t have a link yet, since I just watched it on C-Span.)

First, Democratic Senator Feinstein set some kind of modern political record for gall by asking Sessions for assurances that he would objectively and independently represent the justice system and the people, and not be a “political arm of the White House.” A political arm of the White House (and the Democratic Party) is exactly what Eric Holder’s and Loretta Lynch’s Justice Department were, and the Senator knows it and never raised her voice in opposition to it for eight years! The question is a fair one, but she is estopped from asking it. Indeed, for any Democratic Senator to ask that question is tantamount to deceit, suggesting that the previous Justice Department met the standard Feinstein is demanding that Sessions acknowledge.

This is the unethical double standard mindset that Democrats have been displaying since November 8.

Following that master class in hypocrisy, Feinstein lauded the justly fired Sally Yates for embodying that ideal. Feinstein is ignorant of what lawyers do and the ethical principles their profession obligates them to follow, apparently. Continue reading →

More On The Unethical Sally Yates: Her Conflict Of Interest Deception

/ Jack Marshall / 22 Comments
...and you shouldn't have accepted the job, either.

…and you shouldn’t have accepted the job, either.

Here is another ethics aspect of the disgraceful Sally Yates episode that the complicit news media isn’t covering: it was unethical for her to accept the job of acting Attorney General in the first place.

She had an apparent conflict of interest when she was offered the job. This is indisputable; it’s just being ignored by fawning partisans. Here is the applicable ethics rule of Yates’ bar and jurisdiction:

Rule 1.7–Conflict of Interest: General Rule

(a) A lawyer shall not advance two or more adverse positions in the same matter.

(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:

(1) That matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;

(2) Such representation will be or is likely to be adversely affected by representation of another client;

(3) Representation of another client will be or is likely to be adversely affected by such representation;

(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.

(c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if

(1) Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and

(2) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

(d) If a conflict not reasonably foreseeable at the outset of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph (c), a lawyer need not withdraw from any representation unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4). Continue reading →

The 8th Annual Ethics Alarms Awards: The Worst of Ethics 2016, Part 1

/ Jack Marshall / 8 Comments

bad-2016

Welcome, if that’s the word, to the 8th Annual Ethics Alarms Awards.

Last year, in a burst of self-pity as I began this annual task, I wrote,

“It is depressing and discouraging: 2015 was much worse than 2014, which was considerably worse than 2013. What am I doing here? What is the point of spending all of this uncompensated time—it is more profitable bagging groceries!—trying to nurture a more ethical culture and a more ethically competent public when all evidence points to utter futility as the result? Well, that way madness lies, I guess. I’m just going to grit my teeth and do my duty. Last year I began by saying that 2014 was the year of the Ethics Train Wreck. There were far more of them in 2015, and they were more serious and damaging. That should give you sufficient warning of the horrors to come…”

Then came 20i6.

To paraphrase  Margo Channing, “Fasten your seatbelts: It’s going to a bumpy post…”

Ethics Train Wreck of the Year

train-wreck-air

The Hillary Clinton E-Mail Scandal Ethics Train Wreck

I thought last year was the Year of the Train Wreck. Wrong. In 2016, we had the 2016 Post Election Ethics Train Wreck, the Campus Sexual Assault Witch Hunt Ethics Train Wreck, the Freddie Gray Ethics Train Wreck, the old stand-by Obama Administration Ethics Train Wreck, the still active Ferguson Ethics Train Wreck, and the Ethics Train Wrecks of both Presidential candidates campaigns. Hillary’s e-mails and their related lies in the long trail of cars called the Hillary Clinton E-Mail Scandal Ethics Train Wreck, was a clear winner though.

Passengers included President Obama, Bernie Sanders, Anthony Weiner, the F.B.I., Loretta Lynch, Bill Clinton, James Comey and more. And, of course, it played a significant and perhaps decisive role in bringing us President Trump.

Runner-Up: 2016 Post Election Ethics Train Wreck. It had less than a month to get up steam, but it caused lots of ethics carnage, and is still going strong.

Fraud of the Year

The Trump Foundation, which revealed itself to be a near total sham. RUNNER-UP: Fake lawyer Kimberly Kitchen, who worked as an estate planning lawyer at BMZ Law in Huntingdon County, Pennsylvania, and served as president of the county bar, though she never went to law school, and never took the bar exam, but forged documents to fool everyone that she had.

Most Unethical Act By A Major Church

The Catholic Church, which, incredibly, restored a convicted rapist to the priesthood. Father Joseph Jeyapaul,  a Catholic priest from India, while serving in the Crookston, Minnesota diocese from 2004 to 2005 raped at least two adolescent girls.  After being charged with the crimes, including rape and forcing at least one of his victims to perform fellatio on him, Father Joseph  escaped to India, where an Interpol warrant got him extradited back to Minnesota.  There he confessed, and as part of a plea bargain, received an outrageously light sentence of a year and a day for pleading guilty to one count of molestation. Jeyapaul was suspended from the priesthood and served his time in Minnesota. The U.S. deported him back to India, while the Minnesota diocese had to pay millions in a civil lawsuit, during which we learned that the rapist priest had told one of his victims  in the confessional that she was at fault, and had made Jeyapaul “impure” by letting him abuse her. In February, the Vatican lifted Jeyapaul‘s suspension and restored him to the priesthood. It then assigned him to a new parish in India, where he is now the diocesan head of its commission for education. 

Tell me again why that fake news story that the Pope endorsed Trump was supposed to help The Donald.

Incompetent Elected Official of the Year

kkane

Kathleen G. Kane (D), Pennsylvania’s ex-Attorney General.  In October, a judge sentenced her to 10 to 23 months in prison for her conviction on charges of perjury and abuse of her office. You can’t be more incompetent, I’d say, than an elected attorney general who can’t stay out of jail herself. I regret not writing about the Kane saga last year, but her ethical void was fairly apparent back in 2013, the only time I did write about her, after she leaked grand jury testimony, which is illegal. I wrote at the time (I must have been in a bad mood)…

“Leaking grand jury testimony is both illegal and spectacularly unethical for a lawyer, yet Pennsylvania’s Attorney General, Kathleen Kane, appears to have done it for the slimiest of reasons, and is offering the most cynical of defenses in the most offensive of ways. (Incidentally, I don’t understand how this could happen. After all, Kane is a woman, the first Democrat and the first woman to be elected to the post, and since having a vagina alone is supposed to imbue a candidate with trustworthiness, surpassing competence and virtue, this makes no sense at all.)”

Unethical Elected Official of the Year

Continue reading →