Category Archives: Law: Ethics

People Unclear on the Concept

Scott Horton, Why Two Bush Appointees Are Refusing to Leave, describes the incredible story of U.S. Attorneys Mary Beth Buchanan of Pittsburgh and Alice Martin of Birmingham — both highly partisan and dubiously ethical — who although they serve at the pleasure of the President refuse to hew to custom by tendering resignations, and either think they can bluff Team Obama into not firing them or see some partisan value in being fired rather than going quietly.

It had better not work. There is a place for holdover US Attorneys — when they're really good and genuinely non-partisan. Patrick Fitzgerald, for example. But ladies, you're no Patrick Fitzgerald.

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Spitzer Does the Right Thing

YouTube – Eliot Spitzer Resignation

Now, how about family values Senator Vitter – when is he going to resign?

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Contrary Views on Spitzer

Here are two well-written blog postings that argue Spitzer need not resign:

I'm not persuaded. I don't think Spitzer should be treated worse then the next John, which means he maybe shouldn't be prosecuted and certainly shouldn't go to jail. But that doesn't mean he belongs in the Governor's mansion.

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Spitzer Must Go

If the facts as we currently know them are true, NY Gov. Eliot Spitzer must resign.

As a general rule, I think that office-holders who commit crimes while in office should not continue to hold that office. (I do take shockingly bold positions, don't I?) This case seems to fall into that general rule. I admit that I have exceptions to my rule. For example, I can imagine excusing some — but only some — crimes involving entrapment, or highly technical and basically harmless violations of complex rules in the context of a good-faith effort to comply, or reliance on reasonable advice of counsel. But this case — from what we know so far — isn't even close to one of those exceptions.

The problem is not infidelity. It's not even the overweening stupidity (“worse than a crime: a blunder”). Nor even the incredible assumption that so many politicians and CEOs seem to have that the rules that apply elsewhere don't apply to them — although that gets close. The problem is that this is criminal behavior. And we really can't define our minimum requirements for public life that low and still hope to get this country out of the ditch.

The charge of “structuring” cash withdrawals seems to me the sort of technical issue I would be inclined to forgive; the suggestions of a Mann Act claim are silly on these facts; but the basic fact remains that hiring prostitutes is a crime. Maybe — maybe — it should be legal. (I don't feel well enough informed as to how 'victimless' a crime this is to have strong views; the expensive market may differ from the street, further complicating matters.) But it's not legal. And I think we must expect basic legality from public officials (and if they don't like the rules, let them lead the charge for better ones). That this particular crime is rarely prosecuted, and even more rarely prosecuted by the feds doesn't change a thing. That Spitzer once trumpeted his office's prosecution of a prostitution ring just adds hypocrisy to the mix.

Even if it this case were shown to be highly selective prosecution of a Democratic Governor by a partisan Justice Department — and we don't at present have nearly enough facts to allow us to reach any conclusions on this question — my conclusion remains firm: if indeed the facts are as we currently know them, then Spitzer must go.

(And so too should Senator David Vitter. And no doubt many others.)

Posted in Law: Ethics | 4 Comments

How to Enable Denial of Service Attacks on Courts

Following Vernon Valentine Palmer's evidence that judges were more likely to rule for parties that had contributed to their election, X-Judge H. Lee Sarokin endorses a mandatory recusal policy for elected judges: “Judges should recuse themselves in cases in which either a lawyer or litigant has contributed to their election.”

Sounds great, right? So if I'm a corporate lawyer (or union lawyer) and think Judge Y leans too far towards unions (or against, as the case may be), all I have to do is make a token contribution to that judge and voila! I've stacked the bench.

The disease is likely real, but this cure is worse than the disease.

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Behold the Blogging Magistrate

I know we have at least one blogging ex-judge in the US. There's the judge who collects legal humor. And, of course, there's Judge Posner, something of a law unto himself, who give his views online (mostly with his law & economics professor hat on), but do we have any serving judges with a full-time blog who discuss matters at all close to their service on the bench?

England (allegedly) does. See the (pseudonymous) The Magistrate's Blog. [In fact, I've just realized as I was editing this post, there's more than one, as the View From The Bench plausibly claims to “Being the thoughts, rants, speculations and anecdotes of a magistrate on a northern bench.”]

An English magistrate is a judge of limited jurisdiction, mostly petty offenses punishable by up to six months in gaol. Interestingly, many magistrates are not trained lawyers, although they do have legal advisers. (See the Wikipedia entry for more comprehensive, and perhaps even accurate, information.)

Whoever “Bystander” is, real magistrate or not, The Magistrate's Blog is an erudite and interesting blog. Yet there are some obvious ethical issues raised by a judge commenting on things that touch on past cases; these concerns are perhaps lessened by the magistrate's historical role as something of a representative of community values, or (traditionally) at least of the values of the better and rather more upper-crust elements of the community.

The magistrate, if that s/he be, deals with these with this self-description and disclaimer:

Musings and Snippets from an English Magistrate This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

And perhaps that is enough.

Even so, I don't think that a sitting US judge would dare do anything like this. We've seen a prosecutor get in trouble for blogging. And of course there was the defendant who blogged about his own case pseudonymously — and lost the case when opposing counsel figured out who he was.

There are also a host of juror-bloggers. There's nothing wrong with a (petit) juror blogging after the trial is over, but it's obviously a ground for major concern if it happens during the trial as it provides a conduit for juror to lawyer/party communications which (a) might give one side an unfair advantage if only one side is learning what arguments are working ; (b) facilitate jury tampering; (c) provides fertile grounds for appeals. (More on blogging jurors here and here and no doubt elsewhere.)

Don't get me wrong, as a reader, I'm a fan. And I'm prepared to agree that the world is better off with the Magistrate's Blog than without it — so long as it's being true to its promise to change enough facts “to preserve the truth of the tale but to disguise its exact source”. But that is very difficult to do consistently over a long period of time. How, I wonder, was it done in this post, for example? (In the comments, Bystander even states that counsel read a particular case to the court!) If indeed the blog is by an actual Magistrate, the danger of slipping, or even of discovery over time without any slipping, is all too real.

Would discovery be that bad? In principle there's no difference between a judge writing an academic article about law reform and a magistrate blogging about legal issues that come up in and around the court s/he serves on. Were I a judge, however, I don't think I'd blog, and I certainly wouldn't do it pseudonymously if only because people would be sure to see that — however unfairly — as a sign of a guilty conscience. More importantly, print usually has editors and always takes time, which gives one opportunities for reflection. Blogging is quick and usually unedited. Risky….

But meanwhile, I'm going to be reading what “Bystander” writes.

Posted in Blogs, Law: Ethics, UK | Leave a comment