duty of care

I wrote this piece for a class I took back in 2015. Although my initial response has fallen away from how I felt while writing this essay, I consider what sounds occur in a sea shell, and how things pull away from the original sound once you realize the ear takes in electrical current and, if this does not occur, not sound has been made in the first place.

Most people love to hear a good story. Nowadays, if one listens to something on the radio, the expectation is the news is correct. The sources have been verified. The truths have been fact-checked. Many people listen and take it to heart, or not. If you ignore the news, maybe it’s as good as if you nominally put faith in journalistic integrity or blindly believe everything you hear. Sometimes when one hears a story, he simply nods his head in compliance; in one ear and out the other. If he’s listened or not, he would believe the message.

Despite all the best intentions, the media is flawed. There are codes of ethics boards in every news circuit who commit to unrelenting honesty, integrity, and independence; and at the same time commit to do no harm to its people; and yet there are retraction departments whose job it is to correct past news with fact restoration. When I think about journalistic errors, I recall an episode in season one of the TV show Arrested Development. Michael Cera’s character, George Michael, says of print media, “OK, they printed a retraction in the spring supplement” (Hurwitz and Rosenstock). The media is flawed, and it every so often breaks its own codes of ethics to maintain ratings and to stay in business. Confounding variables, including pseudoscience and irresponsible journalism, are in direct conflict with the media’s duty of care for its audience.

Duty of care is “an obligation to prevent danger or imminent threat through omission or skewing of facts” (Puttman). As a recent Ted Talk shows, the story of the Paisley snail stems from a court case involving a woman suffering from gastroenteritis and shock after finding a snail in a bottle of ginger beer she was drinking. The resulting case of Donoghue vs. Stevenson found that the manufacturer of ginger beer had a duty of care for May Donoghue. The judge on the case explained, “You must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor” (Puttnam). The case set a legal precedent, as May had not purchased the drink from the manufacturer, and there was no contract between them.

In the case of the media, duty of care is important. In an episode of On The Media, Bob Garfield outlines “A Dangerous View“, about the newest addition to the all-female ABC TV show The View. A statement published by the TV network heralds Jenny McCarthy’s impact, who will discuss her “parenting beliefs”, among them an anti-vaccine regimen that prevents autism (Garfield). McCarthy will disseminate her beliefs, founded on a long-discredited study that says autism is caused by vaccines.

The study that connects autism to vaccines is part of a 1998 study of 12 kids by Andrew Wakefield, a doctor who was paid by lawyers to sue the vaccine manufacturer. The co-authors were unaware of the conflicting interest, and as a result the doctor lost his medical license and the study was retracted (Garfield). As a result, anti-vaccine regimens once considered fringe will be considered by millions of viewers. Celebrities can be very influential, even on issues where they are not well-informed, but what happens when mass media appoints them as spokespeople for advertising incorrect information? What is the impact of the population?

In an interview with Oprah, Jenny McCarthy explains how she came upon her beliefs. She googled vaccines, and the first hit was autism (Garfield). McCarthy actually continues. “The University of Google is where I got my degree from” (Garfield).

Problem is, the University Google sucks, because anyone can teach there, no matter how dishonest, how superstitious, how ignorant. On the University of Google, you can also learn about how the US government blew up the World Trade Center, how crystals magically heal, how Jews kill Gentile infants for their blood and how easy it is to get rich in real estate. (Garfield)

Media’s beacon of bad science has created increasing numbers of non-vaccinated herds of children who, in recent years, have contributed to outbreaks of diseases that fifty years ago were considered all but eradicated by vaccine: measles, mumps, and pertussis (whooping cough). “In 2010, a whooping cough outbreak in California sickened 9,120 people, more than in any year since 1947. Ten infants died; babies are too young to be vaccinated” (Shute). As of January 25, 2015,

nearly 80 people in the United States are now confirmed to have measles, most of them with confirmed links to the outbreak that started at Disneyland and Disney’s California Adventure Park. The California Department of Public Health was able to find vaccination records for some of the infected. They found that at least 28 had not received the measles vaccine. (Rath)

Some of the public health policies that had long been upheld are being eroded, and the contribution of pseudo-science in news shows how the media’s fundamental lack of duty of care has set public health back decades.

Another example of media’s negligent duty of care comes from a New York based newspaper called the Journal News. Their article published:

the names and addresses of all legal gun-permit owners in the region. The backlash was swift, prompting unified outcries for the paper to take down the locations from their online affiliate site, lohud.com. Critics claimed it would enable criminals to more easily identify which homes to break in to, putting many residents in serious danger. In response to the public reaction, the Journal News not only said that they would not take down the current list, but would seek to add to it. The Journal News abdicated responsibility for any wrongdoing in their aggregation of personal information, declaring that it was all available through Freedom of Information requests. (Jacoutot)

The author of the article, clamoring for justification, cited his own freedom of information request, but he failed to take into account that the people whom he sought to incriminate, gun owners, were in fact the safest of the population. Ironically, the most at-risk were the people who were not on the gun ownership list. As a direct result of this article, NY-SAFE was passed, providing exemptions for gun owners’ name and address information being posted to public databases (Worley). In the media’s recklessness, laws will be passed to protect a democracy.

The media’s lack of care can pose a threat to those who have been exonerated in court, but who are vilified in public opinion. When the protests over the Darren Wilson verdict were at their peak, authors of the New York Times published an article including the town and street address names of Darren Wilson, the officer who killed an unarmed citizen, Michael Brown. The protests, resulting in cars being burned out and flipped, looting, and a mass exodus of people through the streets of major U.S. cities, reminded me of the pitchforks and torches scene from the film Frankenstein.

The media’s purposefully harmful dissemination of information and direction from these protestors is a dangerous combination. Breitbart’s John Nolte writes, ‘the New York Times had no qualms whatsoever about publishing almost all the information needed for Officer Darren Wilson’s enemies to track him and his wife down at home.’ Other outlets, including the New York Post and Fox News, have highlighted the newspaper’s decision. ‘If anything happens to that man, his family or that home, I hold them — the culpability is with [the New York Times],’ said Fox News’ Sean Hannity. (Wemple)

For the initial research of this essay, I had planned on outlining a detailed analysis of journalists’ code of ethics. The more I looked, the more in common much of the core values seemed, so I decided to rest on one. The Society of Professional Journalists’ code of ethics is simple. Their motto: “improving and protecting journalism since 1909. Seek truth and report it.

Minimize Harm. Act Independently. Be accountable and transparent” (SJP). The exacting detail was in the disclaimer. “The code should be read as a whole; individual principles should not be taken out of context. It is not, nor can it be under the First Amendment, legally enforceable” (SJP). I looked around for an ideal model for media integrity and code of ethics and I found the resting place: the First Amendment.

A fact I so often forget about the media is they are just like you and me. In the words of Charleton Heston as shown in the movie Soylent Green, “it’s people.” If I hadn’t the mind to see them as more than a group, a conglomerate comprised of headlines, the truth is perhaps more difficult to see. In all its glory, the media is just people, flawed as we are, biased as the red running through our veins. The media has every right to speak its mind as you or I, without fear of retribution. I am reminded of a scene from season two of the TV show Arrested Development. In the words of Buster Bluth, “I don’t agree with your dirty doings here, but I will defend with my life your right to do it” (Hurwitcz and Vallely).

References

Garfield, Bob. “A dangerous view.” Onthemedia.org. 19 July 2013. 23 January 2015. WNYC. http://www.onthemedia.org/story/307721-dangerous-view/

Hurwitz, Mitchell and Rosenstock, Richard. “The One Where Michael Leaves.” Wikia.com. Wikia Entertainment. 24 January 2015. http://arresteddevelopment.wikia.com/wiki/Transcript_of_The_One_Where_Michael_Leaves

Hurwitz, Mitchell and Vallely, Jim. “Transcript of The One Where They Build a House.” Wikia.com. Wikia Entertainment. 24 January 2015. http://arresteddevelopment.wikia.com/wiki/Transcript_of_The_One_Where_They_Build_a_House

Jacoutot, Bryan. “Negative consequences of NY newspaper’s bad journalism continue to mount.” Legalinsurrection.com. Legal Insurrection, 5 January 2013. 23 January 2015. http://legalinsurrection.com/2013/01/negative-consequences-of-ny-newspapers-bad-journalism-continue-to-mount/

Puttnam, David. “Does the media have a ‘duty of care’?” TED.com. TED, June 2013. 22 January 2015. https://www.ted.com/talks/david_puttnam_what_happens_when_the_media_s_priority_is_profit?language=enLecture

Rath, Arun. “Measles Outbreak Linked To Disneyland hits Over 70 Cases.” NPR.org. NPR, 24 January 2015. 24 January 2015.

http://www.npr.org/2015/01/24/379632098/measles-outbreak-linked-to-disneyland-hits-over-70-cases

Shute, Nancy. “Vaccine refusals fueled California’s whooping cough epidemic.” NPR.org. NPR, 23 September 2013. 22 January 2015. http://www.npr.org/blogs/health/2013/09/25/226147147/vaccine-refusals-fueled-californias-whooping-cough-epidemic

SPJ. “Code of Ethics.” SPJ.org. Society of Professional Journalists, 6 September 2014. 22 January 2015. http://www.spj.org/ethicscode.asp

Wemple, Erik. “New York Times responds to criticism about Darren Wilson’s address.” Washingtonpost.com. Washington Post, 26 November, 2014. 23 January 2015. http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/11/26/new-york-times-responds-to-criticism-about-darren-wilsons-address/

Worley, Dwight R. “SAFE Act: Gun permit records sealed by the thousands in N.Y.” Lohud.com. Lohud, 30 August 2014. 24 January 2015. http://www.lohud.com/story/news/local/2014/08/30/pistol-permits-ny-safe-opt-outs-public-records-county-clerks/14891475/

lawyerisms

When I think of lawyers, I remember I do not know any personally, but I have seen them played on TV. One of my favorite shows is Community. Jeff Winger, played by Joel McHale, is a lawyer. His motto: “I discovered at a very early age that if I talked long enough I could make anything wrong or right. So either I’m God, or truth is relative. In either case BOOYAH” (“Winger Speeches”)! In his first speech, Winger exhibits his skills to diplomatically end conflict among members of his study group.

“ALRIGHT EVERYBODY!!! I want to say something, sit down.”— Jeff

“You don’t have to yell, I don’t appreciate your tone.”— Shirley

“You know what makes humans different from other animals?”— Jeff

“Feet.”— Troy

“No, come on bears have feet”— Pierce

“We are the only species on Earth that observe “Shark Week”. Sharks don’t even observe “Shark Week” but we do. For the same reason I can pick up this pencil, tell you its name is Steve and go like this (breaks pencil), and part of you dies just a little bit on the inside, because people can connect with anything. We can sympathize with a pencil, we can forgive a shark, and we can give Ben Affleck an Academy Award for Screenwriting.”— Jeff

“Big mistake.”— Pierce (“Winger Speeches”)

               When I think of lawyers, I don’t think of anyone in particular, no one real, anyway, but rather an impression of one I have seen on TV, something that runs like a little loop on repeat, something that always plays itself out time and time again as a reminder of that universal truth that reveals something bigger than what a TV show could do. A lawyer’s talent is a professional manipulation of words to create meaningful outcomes for the purpose of winning court cases and earning money. According to Forbes magazine, the best way for a lawyer to do well is to earn money through four strategies:

  1. Become an industry thought leader. If you want to have a very substantial and profitable career as a lawyer you will probably need to create a meaningful pipeline of new engagements.
  2. Strategically network with key referral sources. As part of becoming an industry thought leader, you’re communicating your expertise to existing and potential referral sources.
  3. Proactively manage existing relationships. Because of the characteristics of legal services coupled with your desire to be paid (and paid well), it’s wise to make the effort to adroitly manage client relationships.
  4. Master Millionaire Intelligence. For example, by employing the negotiation strategies of Millionaire Intelligence, you can be referred to clients on a consistent basis from other types of professionals without having to send them clients.
  5. For most lawyers the way to earn substantial monies is by being a rainmaker. Bringing in business usually trumps everything else when it comes time to set salaries and collect bonuses. By skillfully applying these four approaches, you can indeed crate a steady stream of highly satisfied clients (and a great deal of money). (Russ and Prince)

The lawyer’s ethics code is in direct conflict with his main goal. Making money is not an ethical guideline. When it comes to a man’s livelihood, survival, success, and greed are lines that have blurred to mean the same thing. “You want to earn as much as possible while maintaining the highest ethical standards” reads more like: make it obvious to no one that you’re trying to make as much money as you possibly can; just pretend like you’re asleep (Russ and Prince). Moreover, the lawyer’s creed must fall in line with strict regulations imposed by the Supreme Court. How does one obey the law and still make money? The rules have been bared out in court as sidelined efforts of corruption. Historically, the high court has enforced guidelines after the fact as the real players make money any way they know how: with flagrant disregard of or while trying to rewrite the rules.

The purpose of legal advertising is to maintain profitability in the legal profession. The foundation of success in any business is having a steady stream of clients who will buy a product.  Same goes for lawyers, who need plaintiffs for whom they can make a case and defend in court. The Supreme Court’s ruling that commercial speech is protected under the First Amendment allows lawyers to publish TV ads for the purpose of attracting interest.

The consumption of lawyer ads is as simple as turning off the television, and yet there is no question television is a powerful medium.

In a decision upholding rules requiring television advertising for legal services to be predominantly informational, the Supreme Court of New Jersey stated, “As the record before us and the general literature abundantly prove, the emotional impact of television advertising, in its ability to persuade subliminally, through symbols, music, drama, authority figures — the entire host of emotive non-rational techniques — far exceeds that of the print media and radio.” (“Lawyer Advertising”)

Nevertheless, television advertising is still within the control of the consumer. In this respect, the Supreme Court analysis set out in the Shapero case which distinguishes direct, targeted mail from in-person solicitation, seems applicable to television. The threat of overreaching inherent in face-to-face solicitation is not present when the consumer may avoid the message by merely averting his or her attention. (“Lawyer Advertising”)

We may change the channel, try and look away, and yet life is funny.  There is a need for government intervention when legal ads are in direct conflict with current laws, including the protections of commercial speech by the First Amendment, except in cases where advertising does something other than solicit basic services. For example, government intervention has been helpful in cases of story-telling, inflated promises for large payouts, or downright ridiculousness.

For instance, one Syracuse, New York lawyer had to go to federal court to protect his constitutional right to be ridiculous. Greg Beck of Public Citizen said, “We represented a, a firm who had a variety of ads that were supposed to be funny and entertaining, including ads that sort of made the lawyers look like they were giants stomping around the city of Syracuse and, for example, advising space aliens on personal injury claims.”

Bob Garfield said, “Sounds like a Japanese movie from 1962.”

“They were kind of funny,” Beck said. “They were silly. The bar does not like silliness, though. And it made clear that silly kind of ads are, are the source of ads that the rule was supposed to prohibit.” (Garfield)

The Boston-based James Sokolove is a lawyer who began publishing ads through print media and later in television. His commercials initially drew disdain by peers, but eventually generated a billion dollar profit (Garfield). Sokolove serves as a successful business model that generates millions for large conglomerates (Garfield). Advertisers such as The Relion Group use an independent role of actors to represent lawyers in commercials and later sell the referrals to off-camera litigators (Garfield). The Relion Group, a subsidiary of Lead Generation Technologies, funded by the Carlyle Group, doesn’t itself employ any lawyers (Garfield). The risk of damaging a lawyer’s reputation by appearing in an ad is too great. It would make him seem greedy, opportunistic, and turn the upper lip of potential clients.

In 1977, the profession experienced a seismic change in the genesis of lawyer advertising. Just one year after the Supreme Court established that the First Amendment protected commercial speech, state regulation of attorney advertising received national scrutiny in the Court’s landmark decision in Bates v. State Bar of Arizona. In short, the Court held that the First Amendment protected truthful advertising for routine legal services. In ruling that advertising by attorneys was a form of commercial speech protected by the First Amendment, the Court issued a clear caveat: it did not hold that advertising may not be regulated in any manner. In fact, the court delineated some of the permissible limitations on advertising: advertising that is false, deceptive, or misleading is subject to prior restraint. (Hyland)

What Bates v. Arizona did not do was maintain regulation on other forms of lawyer solicitation. Shortly after Bates, an ABA Journal-sponsored law poll reported more lawyers were inclined to solicit cases than were likely to advertise. The issue, however, was decided the next year by companion cases In re Primus, 436 U.S. 412 (1978) and Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). The Court held that in-person solicitation for pecuniary gain was subject to regulation as an important state interest. The “potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured or distressed person.” (“Lawyer Advertising”)

Legal solicitation can come from seemingly out of the blue, and it’s no surprise they often go unnoticed by disciplinary boards. “After the horrific crash of a Northwest airplane in Detroit, a man posing as a priest talked to the families of victims at the crash site. The “priest” also handed out the business card of a Florida attorney” (Hyland). Where some courts have determined this behavior to invade privacy and cause harm to victims, there are acts that slip past regulation.

McHenry, an attorney who sent letters to prospective personal injury victims, sued the Florida state bar for its decision that prohibited attorneys from soliciting personal injury and wrongful death clients “unless the accident or disaster occurred more than thirty days prior to the mailing of the communication” (Hyland).  The thirty-day ban on legal advertising directed at victims of recent accidents or injury protected victims of recent personal injury or death from invasion of privacy. The court found that the emotional state inhibits their ability to “evaluate direct-mail advertising from an attorney” (Hyland). “The Eleventh Circuit concluded, however, that neither interest was substantial enough to justify the ban” (Hyland).

Lawyers can mislead and use the system to their benefit, especially when using legal speak to mislead potential clients. In the case of Zauderer v. Disciplinary Counsel, lawyers were advertising that plaintiffs would be refunded all legal fees if there was no recovery (“Zauderer”). The Court stated that laymen would not be aware of the distinctions between “fees” and “costs” and could easily conclude that there would be no financial obligation (“Zauderer”). The Court concluded that the “assumption that substantial numbers of potential clients would be so misled is hardly a speculative one” (“Zauderer”).  Lawyers actively mislead potential clients by using legal jargon; their potential victims require protection by regulation.

Sometimes, if I think of laws as chains, there is a better case for it. In defiance of chains, some people keep trying to break free. In the case of lawyers, they can simply make money with inherent disregard of the chains. Abraham Lincoln, in his famous advice to the young man aspiring to the bar said that he should resolve to be an honest lawyer, and that if he could not do that, he should resolve to be honest and not to be a lawyer (Basler).  Perhaps criminal behavior is more universal than I first thought.

In an age where the law can prevent and enable lawyers from the success-money-greed paradigm, the lawyer must continue. He must figure out what he will do to survive. The law, as its edge turns, may hinder or help him. As he fights on, the cycle of the law is unending. This world curls like it would from the edge of a hamster wheel, the same as the edge of the Earth, only from it he can always see the edge of the horizon coming up quicker with each step. The decaying orbit of planets circles farther or closer away from the dream, the promise, the faint hope. The little guy keeps running on, not realizing that it’s never ending, a constant, daily struggle to be free.

Related articles:

https://vantagelegalmarketing.wordpress.com/2015/01/18/the-high-wire-that-is-legal-advertising/

https://wordpress.com/read/post/id/13337642/101

https://wordpress.com/read/post/id/64796094/34

https://wordpress.com/read/post/id/64796094/14

References

Basler, Roy P., et al. “Abraham Lincoln’s Notes for a Law Lecture.” Abraham Lincoln Online. Abraham Lincoln Online, 2015. Web. 8 February 2015. http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm.

Garfield, Bob. “The Upside of Legal Advertising.” Onthemedia.org. WNYC, 16 September 2011. Web. 26 January 2015. http://www.onthemedia.org/story/159134-upside-legal-advertising/transcript/.

Hyland Jr., William G. “Attorney advertising and the decline of the legal Profession.” Journal of the Legal Profession. 35.1 (2011): 339-383. Print.

“Lawyer Advertising and Solicitation Chapter from Lawyer Advertising at the Crossroads.” American Bar. American Bar Association, 2015. Web. 8 February 2015. http://www.americanbar.org/groups/professional_responsibility/resources/professionalism/crossroads.html.

Neville, Alan. “Community Season 1.flv.” Online video clip. YouTube. YouTube, 16 March 2012. Web. 8 February 2015. https://www.youtube.com/watch?v=6kyG0hV6H7Y.

Prince, Russ Alan and Rogers, Bruce. “How Lawyers Can Dramatically Boost their Incomes.” Forbes.com. Forbes. Web, 14 September 2012. Web 8 February 2015. http://www.forbes.com/sites/russprince/2012/09/14/how-lawyers-can-dramatically-boost-their-incomes/.

“Winger Speeches.”  Wikia. WikiaTV, n.d. Web. 8 February 2015. http://community-sitcom.wikia.com/wiki/Winger_speeches.

“Zauderer v. Disciplinary Counsel.” Justia. Justia, 2015. Web. 8 February 2015.https://supreme.justia.com/cases/federal/us/471/626/.