Scott Greenfield’s response not only frames the ethical debate but highlights the perils of writing before thinking of the consequences. Yes, I am confident that ethicists like Jack Marshall will appreciate the irony of consequentialism when it proverbially boomerangs and hits them in the back of the head.
Ethics (or moral philosophy) is not the eminent domain of those who are self-professed ethicists. We each make decisions about right and wrong on a daily basis. “Should I cut this guy off to get to work earlier?”, “Is it wrong to lie to my wife that her dinner last night wasn’t slightly off?”, “Will my client be disappointed if I tell her the truth about how weak her case really is?”. An infinite number of permutations and variations all distilled to what some believe is a dichotomy of “right vs. wrong”. Even the moral absolutist Jack Marshall concedes on his website that there exists a “moral gray area”:
“Ethical Gray Area: Gray areas are situations and problems that don’t fit neatly into any existing mode of ethical analysis. In some cases, there may even be a dispute regarding whether ethics is involved.”
On this so-called ethics debate, in the words of Shakespeare’s MacBeth, “It is a tale … full of sound and fury; signifying nothing.”
What Marshall actually said about Turkewitz is more revealing about the writer than the subject:
“No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct,”
The problem as I see it, is Marshall’s lack of context and “inattention blindness”; a role-specific myopia where the deontological ethics of finger pointing and chastisement—lead him to paint himself into the moral absolutist corner. Regrettably, that ain’t how professional ethics work. There are far more ethical gray areas than there are stark contrasts of black and white. Rather than incite public ridicule and ad hominem attacks, I wonder aloud whether the important issue of blawging ethics may have been more effectively and persuasively presented by using satirical and rhetorical devices, rather than a frivolous, vexatious and contumelious attack on Eric Turkewitz’s ethics and, by implication, his professional credibility.
Does anyone else sense some degree of latent hostility in Marshall’s use of the phrase “lawyers like Turkewitz” or “The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them?”
Really? The Times “trusted” Turkewitz to “behave professionally and ethically”? Let’s ignore the fact that it was April 1st and by all accounts, this day has been around since at least 1582 (see my colleague, James Morton short post on the history of April Fool’s Day here).
For example, instead of calling Eric out on the carpet for his alleged inappropriate prank at the behest of the Times, Marshall could have framed the issue about April Fool’s jokes with a choice quote like this:
“There’s an old saying in Tennessee — I know it’s in Texas, probably in Tennessee — that says, fool me once, shame on — [pauses] – shame on you. Fool me — You can’t get fooled again.
President George W. Bush Nashville, Tenn., (September 17, 2002)
Better yet, what about this quote:
“The best ethics course is to handcuff one of the bastards.” President George W. Bush (On Enron, meeting with his Corporate Responsibility Task Force, published by Wall Street Journal, and republished by Buffalo News and Corporate Bodies and Guilty Minds By William S. Laufer. (July 12, 2002)
The point is not the punchline, but the delivery. Why attack a blawger for his alleged ethical breaches (which I candidly cannot fathom that the ABA or any state bar associations would consider as such), rather than use the incident to alert the reader to the emergent problem of moral relativism that is rampant in traditional media and more recently “social media”. Why slam a well-regarded lawyer and blawger like Turkewitz to make oneself appear as “morally superior” and the modern day incarnation of Epictetus?
Epicteti Enchiridion Latinis versibus adumbratum (Oxford 1715)
(via Wikipedia Commons-Public Domain)
Why not take the opportunity to ask rhetorically whether blawgers are journalists or simply curators of legal information? What about juxtaposing the ethics debate between journalists and lawyers? These are all intriguing and topical issues for an ethicist.
Instead, Marshall appears resolute and determined to not employ Socratic teaching methods but to simply succumb to what he himself should recognize as cognitive dissonance.
From the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers are not expected to be “on duty” 24/7 and acting as “philosopher kings” or the “intellectual elite”. The key is to focus on professional integrity, independence and competence. As Rule 6.04(1) of the Rules of Professional Conduct and commentary state:
Maintaining Professional Integrity and Judgment
6.04 (1) A lawyer who engages in another profession, business, or occupation concurrently with the practice of law shall not allow such outside interest to jeopardize the lawyer’s professional integrity, independence, or competence.
6.04 (2) A lawyer shall not allow involvement in an outside interest to impair the exercise of the lawyer’s independent judgment on behalf of a client.
The term “outside interest” covers the widest possible range of activities and includes activities that may overlap or be connected with the practice of law such as engaging in the mortgage business, acting as a director of a client corporation, or writing on legal subjects, as well as activities not so connected such as, for example, a career in business, politics, broadcasting or the performing arts. In each case the question of whether and to what extent the lawyer may be permitted to engage in the outside interest will be subject to any applicable law or rule of the Society.
Where the outside interest is not related to the legal services being performed for clients, ethical considerations will usually not arise unless the lawyer’s conduct might bring the lawyer or the profession into disrepute or impair the lawyer’s competence as, for example, where the outside interest might occupy so much time that clients’ interests would suffer because of inattention or lack of preparation. [emphasis added]
I leave it to the reader to decide who is the more soundly reasoned, persuasive and objective on the issue of blogging etiquette, collegiality and ethics from the following exchange of comments between Jack Marshall and Scott Greenfield on the latter’s blawg post:
“Jack Marshall wrote:
Eric’s defense compared intentionally deceiving his readers and the media—and crowing about it—to lawyer advertising, a completely false comparison. You, like Eric, seem to also confuse the right to make a false statement under the Constitution with the ethics of doing so, which is completely different. The anti-gay fanatics who disrupt military funerals are, the courts say, within their rights, but it sure is unethical conduct. Sorry: lawyers can’t, for example, surreptitiously tape a conversation according to many Bar Rules, because it is “misrepresentation,” even though it may be legal for them to do so.
Your over-the-top argument that my assessment “would impose bizarrely unrealistic and simplistic ethical proscriptions that would strip lawyers of their human nature, to mention their freedom to have some fun“ is really laughable, especially since my own niche in the legal ethics training world is that my seminars include humor and whimsy. I’m saying that lawyers don’t have the option of setting loose web hoaxes. The Horror. Your defense of “No one was harmed, nor was there any potential for harm” is 1) a hoary rationalization that appeals to consequentialism. Whether someone is harmed by an unethical act comes down to moral luck; it has no bearing on the ethics of the act itself. 2) You’re wrong. Ask the NYT if someone was harmed. Ask the people who had to take the time deny the story. Time is money, and mistakes are credibility. 3) I write about the ethics of humor and comedy frequently, as I have written comedy material for a living in the past. Whether a hoax is funny or not, however, is irrelevant to the legal ethics issue.
Finally, though I am used to people who have nothing better in their arsenal to use the “self-appointed ethicist” canard, it’s a pretty pathetic tactic, and unjustified. You are welcome to my full CV if you can lift it; I have made my living teaching, studying training and testifying on legal ethics for more than a decade. Ethics Alarms is not directed primarily at a legal audience, because there are many fine resources on the topic. I’ve been reading similar gratuitous insults all day, yet none of the insulters have managed to come up with an ethically valid defense for what Eric did, just rationalizations and non sequiturs.
Reply to this
4/5/2010 10:46 PM SHG wrote:
And yet you’re wholly unpersuasive. By the way, nothing like being just a wee bit unbearably narcissistic.
Addendum: Since you’ve rushed around the blawgosphere writing long and tedious responses to most of the lawyers who posted about how you’re wrong (and if there’s any practicing lawyer who agrees with you, I’ve yet to see it), and then posted a lengthy post trying to resurrect your honor after this marketing fiasco, I felt compelled to note your efforts. This one really nailed it for me:
They didn’t have a thing, didn’t lay a glove on me, although they appear to think they did. What the collected protests, rationalizations and insults (to me) did show—and this has great value—is the warped and inadequate way far too many lawyers think about ethics. This is why lawyers often get in trouble; it is a major reason why the public has a low opinion of the profession; and it is a big reason why I make my living the way I do.
I have to give you credit for your perseverance in the face of universal condemnation. Missing from your effort is the ability for self-examination. Screaming “I’m right and everybody else is wrong,” is not an argument. Screaming “the fact that everybody else disagrees with me proves that I’m right and everybody else is wrong,” is also not an argument. It’s a cry for help. Remember, self-absorption isn’t the same as self-examination.”
Instead of telling my readers what and how to think, I will let each of you decide who’s right and who’s wrong.