Jack Marshall, the Elmer Gantry of Ethics

 Posted on April 08,2010 in Uncategorized

Ethics "expert" Jack Marshall conceded that he was wrong about Eric Turkewitz's April Fools' Day hoax. Which was good. Better, I thought, to sometimes be wrong and realize it than always to be right. A very simple apology should have followed: Dear Mr. Turkewitz, I was wrong. I screwed up. I have no idea what I was thinking. I cannot overstate the magnitude of my error, and hope you will forgive me. If you would like me to remove the offending posts, I am willing to.But... no.

Instead Marshall writes a muddled post (I challenge you to understand what he's saying on the first reading; I read it twice, and I'm still not sure) purporting to explain how he "Became an April Fool and an Ethics Dunce." In the lengthy post beginning, "I'm not going to spin this," he tries to spin it: his error (alleging publicly that another lawyer's April Fools' Day prank violated that lawyer's state's ethical rules) "was the product of a toxic mix of factors, prime among then being that I didn't review my own files."

His own files?

In his email to his critics announcing his flipflop Marshall had written:

Let me say, as if anyone will believe me, that I'm not doing this because I have been beaten into submission. I finally was able to check my facts the way I should have in the first place. I had a theory, and stated it as an assertion, and that was just wrong.

His facts?

Jack Marshall didn't just state his theory as an assertion; he belligerently tried to defend it against all comers. I asked Marshall via email, "What facts made the difference?" and got no response.

A less charitable blawger than me (if one exists) might suggest that Marshall is taking advantage of his newfound interpretation of 8.4. The answer isn't in his own files or the facts, which were uncontested. It's in his own brain and gut. At least, it should have been.

Marshall explains his epiphany:

The swift kick that got my alarms ringing all at once were my own words in response to my least favorite participant in the thread, who asked if it was just possible that I was wrong. My snap answer was, "Of course I could be wrong!"

Here's an idea, from a guy who's not shy about publicly calling out lawyers for their misconduct: the time to ask yourself if it's possible that you are wrong is before you make the allegation. Oh, wait: Marshall had already written, in the second paragraph of his second post on the subject:

As those who visit here frequently know, I state strong positions with the full recognition that I may be wrong.

So before patronizing Scott, Eric, and Carolyn, as well as every commenter who disagreed with him, Marshall had already articulated the possibility that he could be wrong.

Part of Jack Marshall's problem, as Mike has suggested at Crime and Federalism, is that Marshall apparently had no friends willing to cut him down and, as a pathological narcissist, if he ever had any such friends he wouldn't have listened to them anyway. Instead of people who will challenge him, his writing attracts ignorant sycophants like Glenn Logan, who even now thinks that Marshall was right and has been treated unfairly.

Jack Marshall had falsely and publicly accused an ethical lawyer of violating a disciplinary rule. He had been corrected by Carolyn Elefant, Scott Greenfield, and Eric Turkewitz, and had written another blog post, sneeringly condescending:

Some fellow lawyer-bloggers rushed to his side, collectively applied their full ethics comprehension and rhetorical skills and proved beyond a shadow of a doubt.....why so many lawyers are desperately in need of ethics training

Then Jack whined about receiving handling much gentler than he should have expected. Even now, in comments to his spin-apology post, he minimizes his wrong:

You are deluded if you think that the suggestion that a lawyer violated a Rule automatically imparts some kind of infamy. Most, if not all, lawyers violate parts of rules at some point, and they know when it matters. Do you take more work than you can handle? Rule violation. Ever use delay as a tactic? Violation. Fight to keep your client from rejecting a good settlement? Violation.... I listen to lawyers talk all the time about how they may have technical violations. Accusing someone of a substantive violation is something else.

Jack didn't accuse Turk of a technical violation: he accused him of a violation that, by definition, involved dishonesty. To an unethical lawyer, making unfounded allegations of dishonesty might be no big deal, but to the rest of us such accusations are a very big deal indeed. Them's fightin' words.

We could go on for pages (see Greenfield, Popehat, Tannebaum, Pribetic, Source 4 Politics)-Jack's posts are a target-rich environment.

I'm not crazy about having to go on my own blog and announce that I have been careless, obtuse and unfair. Before I got into the ethics field, I don't think I would have done it.

I am not in an armchair, and having abandoned the practice of law precisely because I found wrestling with the ethical conflicts and dilemmas too stressful, I have more respect for practicing lawyers than you could imagine.

Now, I'm not "in the ethics field" except in the sense that a) we're all (humans, lawyers, criminal-defense lawyers) in that field and b) I like wrestling with problems of ethics. But I'm pretty sure making excuses isn't what people are supposed to do when they're wrong.

So this is a guy who, admittedly lacking the ethics to come clean for his mistakes, abandoned the practice of law and set himself up as an ethics "expert," "defining what is unethical," "letting lawyers know what is and isn't ethical" "because [he] found wrestling with the ethical conflicts and dilemmas too stressful."

If you don't enjoy wrestling with ethical conflicts, you shouldn't be trying to define what is unethical. And maybe there should be some intermediate phase between "I'm not going to admit I'm wrong" and "I'm an ethics expert."

But Mr. Logan says that Jack Marshall is a recognized expert:

I think it is important to note that Jack is a recognized expert on the matter of ethics. His reputation is not "a little suspect" in any way.

I don't know where he's so recognized. Certainly not in my neighborhood of the practical blawgosphere.

If I've learned one thing from this incident, it's that Jack Marshall is an expert only in the Adrianos Facchetti "you are what Google says you are" sense.