One can agree or disagree with the terms of the agreement, but Huckabee’s words do nothing but stir up sectarian fear and prejudice in a region already plagued with both. His words are almost as inflammatory as the rhetoric that Iranian leaders – including quite a few ayatollahs -- have spouted for several decades. In part because of that rhetoric the nuclear agreement was very difficult to negotiate.
Are there any lawyers or other advisers telling the candidates (particularly Trump and Huckabee) that stirring up ethnic and religious hatred has no place in a civilized election? Nothing in the election laws prohibits this rhetoric, and the First Amendment protects it. I am not sure that President Obama’s condemnation does anything other than strengthen these candidates’ appeal to voters on the far right fringe. But if Republicans don’t do something about the tone of this primary, our credibility problems will be a lot worse than any of the problems created by Secretary Clinton’s mail, former President Clinton’s speaking fees and the donations to their Foundation.
Since the Clinton Administration the White House staff manual has said that no official government business should be done on personal email accounts. This point should be even more obvious with respect to classified information.
I remember saying that once or twice in White House ethics lectures. I wanted to stress even obvious points after the indictment and resignation of the Vice President’s Chief of Staff (Scooter Libby) in a scandal involving a leak of classified information. But no classified information in personal email? If the White House ethics lawyer has to tell people that, he might as well also warn people against stuffing classified information in their socks simply because President Clinton's former aide Sandy Berger did just that when illegally removing classified files from the National Archives. I realized that I was telling people something they already knew – which trivializes ethics lectures – and I dropped the point.
Then again, the State Department – a place where there is perhaps even more classified information than in the White House – apparently needs to bring this seemingly obvious point back into its ethics training: please don’t put classified information in personal email.
Judaism and Christianity are only two of the many religions that teach kindness to strangers, but with Presidential candidates falling head over heels to appeal to Judeo-Christian voters, some scriptural literacy may be in order.
When a stranger sojourns with you in your land, you shall not do him wrong. You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt: I am the Lord your God.
Do not neglect to show hospitality to strangers, for thereby some have entertained angels unawares.
These words, and passages of scripture from many different faiths, should be enough to make some people worry about the “you’re fired” message that may come to a society that does not do something to fix an inhumane immigration system. We can disagree about solutions to the problem, but mean spirited and insensitive statements about the people victimized by it are not acceptable.
What does this have to do with ethics? Everything. We get our ethics from somewhere, many of us from our religious faith. If we are not true to the beliefs we profess, particularly in the way we treat other human beings, it is difficult to claim that we have much by way of ethics.
I have no objection to Blankfein making this much money even if I question the theological accuracy of his claim before Congress a few years ago that Goldman Sachs is doing "God's work".
But perhaps he, and the top brass at Goldman Sachs and other banks, should have the same personal liability for their firms' debts that Goldman Sachs partners had for decades before these banks became public companies (Goldman made the switch in 1999).
Personal liability -- and personal responsibility -- of the most highly paid bankers is workable without going back to partnership form, as Claire Hill and I explain in this book to be released by University of Chicago Press later this summer:
Today I experienced the horror of a misdirected email. Luckily, the email was unrelated to any client work or confidential matters; but the experience sent a chill down my spine. Fortunately, the recipients of my wayward email were incredibly ethical attorneys. Not only did they assure me that they did not review my email, but they consoled me with a variety of horror stories about misdirected emails that they themselves had either sent or received.
1. Before using email, consider whether it’s the best method for the particular communication. Never respond to any message without thinking of the consequences of that communication becoming public.
2. Remove excessive “strings” of messages from email and include only what’s necessary.
3. Remove attachments unless necessary. Never send an email message without knowing exactly what’s on every page of an attachment. Consider stripping metadata (hidden information embedded within a document or message), or sending a PDF or facsimile version of the document, to minimize the risk of inadvertent disclosure of metadata.
4. Rename messages when appropriate. Delete excessive “FW” and “RE” references in the subject line.
5. Turn off the “Suggest Names” option to avoid automatically filling in the wrong name. Enable “spell check” for all outgoing messages.
6. Consider drafting email messages without the “To,” “Cc,” and “Bcc” fields being completed until after your message is drafted, and you are sure it’s complete. This will avoid the transmission of messages to anyone unless you are absolutely sure that they are the intended recipients.
7. Hitting “Reply to All” is always a disfavored practice and should only be used as a last resort.
8. If you are a recipient of a “Bcc” message, do not hit “Reply to All” because you may be disclosing something that the sender intended to keep confidential.
9. Clean out your Inbox by filing or printing relevant messages and deleting extraneous messages. Mark messages that require your attention as “Unread” in order to differentiate them from messages that have already been read and require no immediate action on your part.
10. Take a deep breath before sending any email message. Watch your language and grammar. Remember:Nothing is funny when it’s used as an exhibit in a lawsuit, or as an example of poor judgment or violation of policy.
I hope that all of you dear readers never experience the horror of the misdirected email. But, if you do, take comfort that you are not alone.
As many readers of this blog know, the New York Legal Ethics Reporter (NYLER) is a free online newsletter, which reports on developments in the area of professional responsibility and legal ethics. Although NYLER focusses primarily on developments in the New York and the tri-state area, the issues it addresses have national relevance.
NYLER is a collaborative effort between Hofstra University and Frankfurt Kurnit Klein & Selz. It continues the tradition of the wonderful New York Professional Responsibility Reporter (NYPRR), which was published by Lazar Emanuel until his death in 2011. In fact, copies of the old NYPRR articles are archived on NYLER and can be accessed for free at any time.
NYLER's editorial board is seeking article submissions.
Here are NYLER's parameters for articles:
Word count: 500 to 2500 words
File and document format: MS Word, double-spaced, no footnotes
Topics: Ethics and professional responsibility developments in New York or elsewhere
Include a brief bio with your submission
You may email article topics or submissions to NYLER's co-Editors-in-Chief:
In Harper Lee's Go Set A Watchman, set twenty years after To Kill A Mockingbird, Jean Louise Finch (formerly Scout), now in her late 20s, tells us that her father Atticus is a racist. Atticus Finch a racist! The most famous lawyer the US has ever produced! This will lead to much soul searching and reassessment of his character. Plus a search for clues in Mockingbird.
The late Monroe Freedman did not need the testimony of Atticus's daughter for this news. He saw the clues in Mockingbird way back. In several articles over the years he called Atticus out for his hypocrisy and racial insensitivity. I don't think he actually leveled a charge of racism however.
For example, in the Alabama Law Review in 1994 he wrote:
"Throughout his relatively comfortable and pleasant life in Maycomb, Atticus Finch knows about the grinding, ever-present humiliation and degradation of the black people of Maycomb; he tolerates it; and sometimes he even trivializes and condones it. Nor does Finch need the presentism of a Northern liberal six decades later to tell him that these things are wrong. He himself accurately diagnoses “Maycomb's usual disease ... reasonable people go ing stark raving mad when anything involving a Negro comes up.” “ It's all adding up,” he recognizes, “and one of these days we're going to pay the bill for it.” But he hopes that the struggle for justice won't come during his children's lifetimes. For Finch, the Civil Rights Movement of the 1960s is inevitable, but decades too soon."
If Monroe were still with us, he would rightly be reminding us that he always had his doubts about Atticus and had maintained his position despite much hostile reaction to his assault on Atticus's character. But Monroe is not with us. So I thought it proper for us to recognize what is surely a claim to vindication.
Of course, Jean Louise's charge may also be a phenomenon that we all can appreciate. The parents who are your heroes when your 8, may be seen as morally compromised when you're 28.
July 28, 2015 11 a.m. to 1 p.m., New York State Court of Appeals, 20 Eagle Street, Albany, N.Y. 12207
Aug. 4, 2015 1 p.m. to 3 p.m., Erie County Ceremonial Courtroom, 92 Franklin Street, Buffalo, N.Y. 14202
Aug. 11, 2015 11 a.m. to 1 p.m., New York County Lawyers' Association, 14 Vesey Street, New York, 10007
The Commission's goal is "to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process." Some of the issues to be considered are:
[W]hether New York’s departmental-based system leads to regional disparities in the implementation of discipline; if conversion to a statewide system is desirable; the point at which disciplinary charges or findings should be publicly revealed; and how to achieve dispositions more quickly in an effort to provide much-needed closure to both clients and attorneys.
The Commission website has a procedure and timeline to request an invitation to give testimony. Written submissions are also permitted.
The legal profession faces a terrible paradox. The number of U.S. licensed lawyers has steadily climbed from 2.33 lawyers per thousand residents in 1980 to 3.85 in 2010, a 52 percent increase in 30 years. Partly due to this increase, jobs have become scarce for new law school graduates.
At the same time, people with civil justice issues—including problems with employment, money, insurance and housing—do not go to lawyers for help. Two recent studies, one conducted by the Legal Services Corporation and one by the American Bar Foundation, each separately found that only approximately one-fifth of people with civil justice issues sought assistance from a third party such as a lawyer.
It seems very odd that there could be so many lawyers looking for work and still so many unmet legal needs. Why is there such a mismatch between supply and demand?
Detailed story at TechDirt, with the source documents. It raises the issue of delegation of the prosecutorial power to private parties and the issue of when constitutionally privileged petitioning of the government becomes illicit.
A new opinion issued by the Professional Ethics Committee of the New York City Bar Association discusses whether -- and under what circumstances -- an attorney may threaten another lawyer with disciplinary charges. From the digest:
An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct (the “New York Rules” or “Rules”). Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.
Disclosure: I chair the committee that issued this opinion.
This time religious freedom is the apparent excuse for blatantly unprofessional conduct in the face of a Supreme Court ruling.
Religious freedom of state employees cannot possibly mean that two Jewish people or two Muslim people should have more difficulty or delay in getting married than two Christians, simply because they live in an overwhelmingly Christian county where state employees do not wish to serve them. As of this week, it is clear that two men or two women who want to get married have the same legal rights. Yet some state AGs are making it clear that they will do what they can to stand in the way.