March 11, 2008
"Much To Be Desired"
The Maryland Court of Appeals imposed an indefinite suspension in a case where the attorney (who had no record of prior discipline) was appointed as co-personal representative of the estate of a close personal friend. The attorney apparently had little estate experience and, as a result, was removed and ordered to turn over estate assets. Rather than comply, the attorney filed motions for reconsideration and appeals all the way to the Court of Appeals, which had denied review. The attorney also had taken $6,000 in fees without seeking required court approval.
Here, the court concluded that the "misconduct was not due to greed or dishonesty, but rather due to obstinateness and incompetence in probate matters. Respondent's inability to accept responsibility in the mishandling of the Estate leaves much to be desired." The attorney may not seek reinstatement until full restitution is made to the estate. (Mike Frisch)
Arrogance, Self-Deception, and Civility - A Thesis on the Balance between Principle and Learning
Posted by Jeff Lipshaw
I was already reeling, in a way, from the spin now coming out of the Clinton campaign, distinguishing between primary delegates and caucus delegates, all apparently in an effort to persuade superdelegates that Senator Clinton really is winning, despite the fact that she is losing. This was consistent with the "let's make Obama" the VP move, which reminded me of the scene at the end of Searching for Bobby Fischer when the little chess master Josh Waitzkin sticks out his hand and offers a draw to the arrogant little snot who appears to be winning. Except there was nothing cynical about Josh. (Somebody please explain to me the "Obama is not qualified to be commander-in-chief now, but he may be by the convention" logic.) It occurred to me in the middle of the night: "I'll bet she has calculated that it's a no lose proposition to trash Obama. Either she gets the nomination or he does, and then he loses to McCain, having been given fodder from Senator Clinton herself, and she's back in 2012 at the relatively young age of 64." Who do they think they are fooling?
Then the Spitzer thing. I have never been a big Spitzer fan (see Matt Bodie's comment over at PrawfsBlawg for an expression of that particular sense of betrayal) so I haven't followed it closely, but obviously there is a pattern of self-righteous (and foul-mouthed) combativeness, all in the pursuit of what he is sure is right. The New York Times reports this morning that this is a fellow not particularly attuned to listening to somebody else, or learning. What could he have been thinking? Who did he think he was fooling?
And finally, I had already been thinking, after perusing the blogosphere this weekend, about the issue of civility in academic debate.
It seems to me there is a common thread here, perhaps tenuously so, but I don't think so. It has to do with arrogance and self-deception. I wrote an article awhile back that concluded with this paragraph:
When I am faced with a difficult choice, I fear nothing like my ability to persuade myself. Kant understood that we can never really tell if the principle of our action is determined by our material wants and inclinations, or by recognition of the universality of the rightness in what we are choosing. I agree. Whether in our own minds, or in a group of like-minded executives, we are wholly capable of mistaking what makes us happy or fulfilled for what is right. And, the only check on the power of reason, and its thirst for rationality that produces lies, is openness to the insight and reality, however uncomfortable or distasteful or opposed to our own reasoned conclusions, that come from another.
Just how do you check your intuitions about right and wrong before they reach dogmatism? Just how do you balance principle with learning? I think consciously recasting one's visceral reactions into civil and temperate speech may be a start.
More below the fold.
Last Saturday afternoon, I went to a session of an academic program at a well-regarded law school in my neighborhood. I didn't stay long. As I described it to my next door neighbor (himself a well-regarded theorist in the physical sciences also at a school in my neighborhood) as we split a bottle of moderately cheap red wine, what was supposed to be social science (presented by someone who was supposed to be a "star") struck me as normative conclusions supported by statistical correlation to arbitrary and normative assumptions. Moreover, the normative assumptions struck me as borderline offensive (it wouldn't be a far stretch to say that, say, Jack Welch, was put into the same analytical category for sociological purposes as, say, Heinrich Himmler).
As I drifted into a pinot noir induced fog, I wondered what I might have said had this been a lunch presentation in our faculty dining room. What do you say when you think something is absolutely wrong-headed, indeed, even hokum? I am pretty sure, without resorting to ad hominem, I could have suggested that perhaps there were some flaws in the attribution of characteristics in the assumptions that might have an effect on the conclusions. But I don't think I would have needed to make the point by imputing anything into the mind or actions of the speaker.
I typed "academic civility" into Google, and came up quickly with this interesting little post by someone who is apparently a young academic dean at a community college:
Apparently, a community college in New Jersey briefly floated a policy to encourage 'civility' that was anything but. The provisions were:
1. Honesty, integrity, and respect for all will guide my personal conduct.
2. I will embrace and celebrate differing perspectives intellectually.
3. I will build an inclusive community enriched by diversity.
4. I am willing to respect and assist those individuals who are less fortunate.
5. I promise my commitment to civic engagement and to serve the needs of the community to the best of my ability.
Yes, they overshot. I'd say, comically so. (Number 2 is my favorite. “I celebrate your staggering wrongness! I embrace your breathtaking, fundamental category error!”) But there is some value to the idea of civility that apparently animated the original idea. If we understand civility as something like “the rules for participating in the organization,” then it seems reasonable to me to go beyond “I know it when I see it.” The mistake wasn't in trying to write it down; it was in absurdly overreaching.
My proposed code of civil conduct for higher ed, or speech code, if you prefer:
I will separate the speaker from the speech.
It seems to me that there are at least several reasons in academia for temperate speech, even when facing staggering wrongness or breathtaking fundamental category error, and they are not all that different from the reasons we might suggest in other non-academic settings.
(1) You can make the point without the ad hominem. Indeed, the point is stronger without the ad hominem.
(2) The intemperateness says more about the critic than it does about the target of the criticism.
(3) The intemperateness may shut down discussion altogether, or chill creative thinking in a way that blunt but temperate criticism does not.
(4) "What you do speaks so much louder than what you say." I suppose it's possible that some of us are teaching students who will go off to pursue careers in fields in which prefacing your remarks about someone else's argument with something like "you are a toad-sucking scumbag who obvious misses the point in everything you read" is SOP. Most of us don't, however. I'd hate to think there was a spillover from academic debate to teaching style.
I am hardly suggesting that one take a measured view of the espousal of hateful things. But as I learned from a wise mentor in the academy, there is something called the principle of charity of interpretation, and even if it weren't the right thing to do, deontologically speaking, it makes sense from a utilitarian debate standpoint because if you rebut the weak interpretation, you are open to the argument that you didn't understand the strong one!
Anyway, what's the thread behind this long ramble? Arrogance, incivility, and self-deception all stem from "it's all about me." They are the antithesis of learning. I suppose there is somebody in the world whose contribution to human flourishing entitles them to arrogance, incivility, and self-deception, but I have yet to identify any candidates.
March 10, 2008
More Judicial Misconduct
The North Carolina Supreme Court ordered a censure and sixty-day suspension of a judge who was a practicing lawyer prior to his election as a district court judge. He leased the building where he had had his law office and sold his files to another attorney. The attorney appeared before him on multiple occasions and he did not disclose the relationship. After complaints from the district attorney's staff of favorable treatment of the lawyer, he sought the identity of the complainants and said he would "unload on them." He also was "habitually rude and condescending to those who appeared before him in court." Also troubling was the judge's attempt to avoid disqualification:
"...our attention is particularly drawn to respondent's testimony under oath regarding his attempts to procure a remittal of disqualification with respect to attorney Dummit[the tenant]. The Commission found that respondent directed Dummit to prepare a remittal of disqualification "disclosing the landlord-tenant relationship existing between respondent and Mr. Dummit and deeming it 'insubstantial and immaterial pursuant to the opinion rendered by the Judicial Standards Commission.'” The Commission found that no such opinion had been rendered by the Commission or its Executive Secretary, Mr. Ross.
In addition, although respondent testified under oath that he did not direct Dummit to prepare the remittal, plenary evidence contradicted him. Respondent's own testimony indicated that he communicated with Paul Ross of the Commission regardingthe remittal and yet it was Dummit who drafted the document. We also note that Tom Langan testified that he was present when respondent told an associate from Dummit's law firm to have Dummit draft the remittal." (Mike Frisch)
Pattern Of Misconduct
An attorney who had violated a wide array of ethics rules in seven matters was suspended for one-year with six months conditionally stayed by the Ohio Supreme Court. The misconduct involved neglect and incompetence, taking a loan from a client, misrepresentation in a voluntary dismissal and contempt in the course of a criminal case. He also violated a civil protection order that forbade contact through any person with the victim or her babysitter. The attorney approached the front door of that person "to confront the babysitter inside...[the lawyer] intended to intimidate the babysitter to gain an advantage for his client."
A dissent would impose harsher discipline: "Respondent's instances of misconduct were varied, frequent, and offensive to the profession and the public we serve. In the ten years that he has been admitted to practice in Ohio, respondent has engaged in a pattern of misconduct." (Mike Frisch)
The Georgia Supreme Court imposed an indefinite suspension in a matter involving an attorney already suspended for misconduct that had taken place during the same time period. The attorney "may have been laboring under a medical impairment which the State Bar has considered in the past." The conditions for reinstatement are the same as previously imposed. The attorney must demonstrate that she is not impaired as well as return client files and unearned fees.
A dissent finds the record "completely devoid of any mitigating factors" and would disbar. (Mike Frisch)
Stipulated Result Questioned
A Town Court Justice who is not a lawyer received an admonition from the New York State Commission on Judicial Conduct. "Without a trial or guilty plea, he convicted the defendants and imposed two consecutive fines and a one-year conditional discharge based on unsubstantiated ex parte information from the code enforcement officer. Such conduct violates well-established ethical standards and warrants discipline."
How much discipline? A dissenting opinion concludes that "entering into an Agreed Statement with Commission Staff should not be a 'Get Out of Jail Free' card in a game of judicial misconduct. The sanction of admonition that [the justice] receives for fundamental breaches of due process...is so inconsisent with our precedent and what the public expects of us that it betrays an expedient approach to judicial discipline not consistent with our constitutional obligations...[t]his conduct, reminiscent of Politburo justice, has no place even in rural New York, where it seems we give more leeway than we should."
The dissent finds another "troubling aspect to this case." The lack of qualifications may result in judges "who clearly would be unqualified if there were reasonable, minimum standards...We should all be deeply concerned with the easy escape route [the stipulated disposition] we have provided in this case..." The justice's answer "betrays such a poor facility with basic writing skills that it is glaringly reflective of the problem of having no minimum standards for judicial office."
The dissent raises a point that troubles me as it relates to bar discipline. My experience suggests that a disciplinary system cannot function without the ability of the prosecutor and accused to agree to a particular set of agreed facts and result, subject to appropriate review. However, the "plea bargaining" of bar cases must ensure that the discipline is commensurate with the misconduct and not a "Get To Keep Your Bar Ticket" sweetheart deal. It's probably the most significant enforcement issue out there these days. Of course, fair minds also can differ on the what constitutes "appropriate review" of stipulated dispositions. (Mike Frisch)