Dr. Keith Geraghty, of the University of Manchester, has published this excellent article on the flaws in the PACE study of ME/CFS. He makes important points about academic integrity that are relevant to all of us (including those who are unaffected by the PACE problem itself; for background, see here and here). Here are two of his more important observations.
First, regarding data transparency, he notes that it took five years for patients to obtain the raw data underlying the PACE study, which ultimately revealed that the results (for the effectiveness of CBT and GET) had been exaggerated by about threefold:
The PACE-Trial stands out as a showcase example of why data transparency is needed in contemporary science. Patients suffering from health conditions like CFS, and independent scientists, should have the right to see the evidence behind the claims of any scientific study, especially if this evidence is used to direct health policy or promote certain treatments – as was the case for the PACE-Trial.
The same can be said of nearly all academic work. Data sharing and data transparency are the ultimate safeguards of accuracy. The refusal or reluctance to share data should be taken as an immediate red flag, no matter the discipline.
Geraghty also makes an important point about conflicts of interest:
‘PACE-Gate’ stands as an example of how science is not always a simple process of discovery and reflects the ills of contemporary science in microcosm. As a result of the PACE-Trial saga, it is likely that patients with CFS will be less trusting of doctors, scientists and psychotherapy practitioners. To win this trust back, the medical-scientific community must learn lessons from PACE-Gate. First, was it wise to commission a small group of scientists that held very strong published views in favour of CBT/GET as treatments for CFS, to be the ones to test the efficacy of these treatments? Conflicts of interest have always been the thorn in the side of clinical trials and a major source of investigator bias [citations omitted]. Funders of future trials must consider the independence of those entrusted to carry out clinical trials.
This is an essential observation. The organizers of the PACE study were all committed in advance to the CBT-favoring outcome, which was an even greater problem because it was an unblinded trial. I have also been told of other conflicts of interest, including the directorship of a company that promotes CBT.
As a legal ethicist, I have spent much of my career attempting to alert lawyers and judges to unrecognized conflicts of interest. Most professionals believe that they are immune to the influence of conflicts, but of course they are not. Doctors and scientists are no different, and in fact they may be even more susceptible to conflicts, due to their profound belief in their own objectivity. People who believe they are impervious to outside influences are in fact the most likely to be affected by them.
It would be a clear violation of the Hatch Act for the FBI to disclose any of that information a week before the election to Members of Congress who will simply post it on the Internet for political purposes. And nobody cares if the FBI director or anyone else at the FBI promised House or Senate Democrats that he would keep them "fully informed" about any open or closed investigations concerning Donald Trump. Such a promise should never be made to begin with.
We use agencies such as the FBI, the Secret Service and the CIA to enforce the law and to protect our national security, not to investigate our political opponents for the purpose of winning elections. Even a cause as compelling as preventing foreign meddling in our elections does not justify such an abuse of power.
The BDS movement's advocacy of an academic boycott of Israel is contrary to scholarly values and the free exchange of information, but that cannot possibly justify anti-BDS tactics that are themselves contrary to principles of academic freedom. Regrettably, an organization called Canary Mission has crossed that threshold by advocating a blacklist of pro-BDS faculty and students. Most intolerable is their suggestion that future employers should take note of students' anti-Israel activism, thus reviving a tactic from the McCarthy era.
Academic freedom means academic freedom for everyone, both pro- and anti-Israel, and whether they support or oppose BDS.
For this reason, the Alliance for Academic Freedom has published the following statement in opposition to the Canary Mission blacklist. It originally appeared in Tablet, and you can read the entire statement below.
[Note: The authors of the statement constitute the executive committee of the Alliance for Academic Freedom (AAF), a group of faculty members who are opposed to academic boycotts and who believe that empathy for the suffering and aspirations of both Israelis and Palestinians, and respect for their national narratives, are essential if there is to be a peaceful solution to the conflict. I am a member of AAF, but I am not on the executive committee.]
In the spring of 2015 an anonymous group of people established a website announcing the formation of an organization they called Canary Mission. They began posting photos of college student activists working on behalf of the Boycott, Divestment, and Sanctions (BDS) movement against Israel, along with brief accounts of their activities. They described the website as a database “created to document the people and groups that are promoting hatred of the USA, Israel and Jews on college campuses in North America.” A smaller number of pro-BDS faculty were also documented on the site. From about 50 dossiers in the spring, the site grew to 150 by fall 2015. Canary Mission also began tweeting notices about BDS advocacy and organizing, along with tweets about the people the site was highlighting. As of mid-October 2016, there are 63 faculty members and 602 “individuals,” mostly students, identified on the site.
The purpose behind the large student database, it is clear, is not merely documentation. The introductory video on the Canary Mission website concludes with a call to action based on the organization’s mission. It fills the screen in capital letters: ensure that today’s radicals are not tomorrow’s employees. The video details a series of claims and warnings:
The canary in the coal mine has long been a metaphor for the persecution of a minority that subsequently spreads to the general populace. Today college campuses are filled with anti-Semitic and anti-American radicals waving Palestinian flags and placards and screaming “Apartheid” and “Murderer.” A few years later these individuals are applying for jobs within your company. There’s no record of their membership of [sic] radical organizations. No one remembers their yelling profanities on campus or attending Jew-hating conferences and anti-American rallies. All evidence has been eradicated, and soon they will be part of your team. We are Canary Mission, an organization dedicated to documenting these acts of hate, exposing them, and holding these individuals accountable.
After a collage of campus demonstrations, including one of an anti-war rally, it continues: “Join us to combat this wave of hatred, protect freedom, and make campus life safe for everyone. It is your duty to ensure that today’s radicals are not tomorrow’s employees.”
As part of its fear-mongering agenda, the video tracks slowly across a Holocaust photograph. Whether this allusion is more absurd or despicable may depend on your perspective. But one thing is clear: few will recognize the uncompromisingly alarmist portrait Canary Mission paints of the American campus itself. The McCarthyite tenor of Canary Mission’s claims is enhanced by its crude equation of anti-American and pro-Palestinian sentiment, a link that certainly can exist on campus but is hardly universal.
Some supporters of Israel will be tempted to sympathize with the impulses behind Canary Mission, since anti-Semitic actions or outbursts at colleges and universities have at times been linked to anti-Israel organizing. Are some departments offering demonstrably anti-Israel courses that cross the line into anti-Semitism? Yes. Does the BDS movement assault academic freedom by disrupting lectures by Israeli speakers and blacklisting Israeli academics? Yes. Have BDS protesters sometimes taken over public spaces on American campuses or so dominated campus programming and debate that pro-Israeli students are left feeling marginalized or unwelcome? Yes.
In the current campus environment, there is, appropriately, empathy and solicitude for black, Latino/a, or Muslim students who are targeted by hostile groups or suffer from significant bias in their institutions. But pro-Israel Jewish students are typically extended far less empathy and concern, even though they, too, have grounds for unease in the face of a highly organized, often-virulent political movement that often denigrates their religion, their ethnicity, or their attachment to a nation that is intimately linked to Jewish identity.
Yet while the impact of the BDS movement is real, perspective is still needed. We cannot endorse Canary Mission’s hyperbolic claim that a “wave of hatred” is sweeping over our campuses. Few Jewish students are in peril from the rise of campus anti-Israel activity. Nor, despite Canary Mission’s Holocaust analogy, does the campus climate herald the spread of anti-Semitic persecution “to the general populace.” The alarmist rhetoric seems designed to justify the extremist tactics the website employs.
Those tactics must be condemned. Above all, the project of holding students permanently accountable for their campus politics and the campaign to undermine their employment opportunities takes Canary Mission’s McCarthyism from metaphor to reality. Unlike the faculty members profiled, many of whom already have national recognition for their books and essays supporting BDS or fundamentally denying Israel’s right to exist, most student activists have merely local reputations—if they have anything like a reputation at all. Many are new to political issues, and some will change their minds about things several times even before they graduate. Many adults look back on their student views with bemusement or regret. The moral urgency we felt decades earlier may not survive unchanged. Immortalizing ephemeral student opinion carries a high risk of misrepresentation. Indeed, Canary Mission produces scant evidence for the student attitudes it purports to identify. Canary Mission wants both to give BDS student activists national name recognition and to tether them to the positions they take as youth.
Lists alone, it should be clear, are not in themselves blacklists. The BDS movement itself generates lists of its self-identified supporters in the form of signed public petitions or faculty-endorsed boycott or divestment resolutions in professional associations. Reprinting those lists exercises a First Amendment right. Canary Mission, however, is not simply creating lists. It urges action to punish the students it targets, including the call to private organizations to shun them when hiring. But private organizations with a political mission are better off interviewing and inquiring to make sure they are making appropriate hires, rather than relying on Canary Mission’s dubious lists. They don’t need and should not turn to any blacklist to help them screen applicants. Canary Mission’s efforts enhance the potential for the unethical political screening of job applicants.
Canary Mission’s blacklisting of students based on their political activities is a direct threat to free expression and academic freedom on campus and deserves to be condemned. At the same time, it should not be forgotten that the effort to boycott Israeli academics and/or academic institutions also constitutes a blacklisting project. For nearly fifteen years we have seen that purported boycotts of Israeli universities inevitably generate sanctions against individual students and faculty. Such discrimination against individuals based on religion and nationality violates not only academic freedom but, more profoundly, fundamental democratic and humane principles. We therefore invite those who condemn the academic boycott of Israelis and their universities to join the Alliance for Academic Freedom in condemning Canary Mission’s efforts, and we likewise ask those others who condemn Canary Mission to raise their voices against the blacklisting of Israeli academics and their universities. Though both blacklisting campaigns grow out of the debates over the Israeli/Palestinian conflict, they employ different strategies and embody different political aims. Yet each undermines academic freedom and does harm to members of the academy. We think both are fundamentally misguided.
This paper uses measures of values, moral outlook and professional identity to explore the ethical and professional identity of law students. We do so in two jurisdictions, surveying 441 students studying in England and Wales and 569 students studying in the US. The survey covers the first and final years of an undergraduate law degree and the postgraduate vocational stage in England and Wales, as well as students in all years of the JD programme in the US. We explore whether law students towards the end of their legal education have ethical identities predictive of less ethical conduct than those at the beginning of their legal education; whether law students intending careers in business law have values and profiles consistent with less ethical conduct than those intending to work for government or individuals; and what factors might explain these differences in ethical outlook. Our findings suggest that ethical identity is strongly associated with gender and career intentions. They also suggest weaker moral identities for students intending to practise business law. Ultimately, our findings support a conclusion that is more nuanced than the predominant theses about the impact of legal education on student ethicality which tend to suggest legal education diminishes ethicality.
Not surprisingly, these proposals say nothing about the most important person in a hypothetical Trump Administration: Mr. Trump.
An ethics executive order or statute is useless unless people in the administration comply with it and that will not happen unless there is an ethical tone at the top. The President cannot play by one set of rules, doing whatever he wants, and expect his subordinates to conduct themselves ethically. That simply won't work.
Every President until now has practiced transparency (including disclosure of tax returns as a candidate and as president). Every President has also avoided financial conflicts of interest (through divestment of assets and/or blind trusts) that would make certain official actions a criminal offense for everyone else in the executive branch under the conflict of interest statute. Trump has done neither and promised to do neither. No tax returns. And no plan for divestment or a blind trust. His problems include, among other things, entanglements with foreign countries and foreign government owned banks that could easily violate the ban on foreign gifts and payments under the Emoluments Clause of the Constitution (which does apply to the President).
And the problems are broader than that. Every other president and candidate has promised to uphold the Constitution, which means among other things respecting the legitimacy of elections carried out thereunder, respecting the independence of Article III judges regardless of their ethnicity, not applying a religious test of public office, and upholding the Equal Protection Clause. An ethics executive order signed by a President who does not respect the Constitution will be widely ignored and accomplish nothing.
Until Mr. Trump addresses his own issues, his proposed executive order or legislation on ethics will be as good as the Enron Code of Ethics, which can be had for a song on E-bay.
And in the meantime we can await Mr. Trump’s proposed White House sexual harassment policy, his nuclear nonproliferation policy, his proposals to combat foreign government hacking of Americans computers, and his proposals to close tax loopholes for billionaires who pay no taxes.
Presidential candidate Donald Trump has declined to release his tax returns, explaining in a tweet that "my taxes are under routine audit and I would release my tax returns when audit is complete." His fellow billionaire Warren Buffett, however, just made his own tax return public, even though he, too, is undergoing an audit. As reported by the Washington Post,
I have been audited by the IRS multiple times and am currently being audited. I have no problem in releasing my tax information while under audit . . . . Neither would Mr. Trump -- at least he would have no legal problem.
Trump's own lawyer, Michael Cohen, sees things differently. "I personally will not allow him to release those tax returns until the audits are over . . . . There is not a lawyer on this planet that should give that advice -- any advice other than what I just gave -- to their client short of suffering malpractice," he told Politico.
I have a modest proposal. In lieu of releasing his tax information, Mr. Trump should simply produce the memorandum he received from his lawyer that details the legal reasons for withholding his return. The question of the tax return has dogged Trump's campaign, so I am assuming that he required written advice, setting forth the various considerations, before making such a consequential decision. The opinion letter or memorandum would thus allow tax experts to evaluate the quality and reasoning of Mr. Cohen's advice.
Perhaps there are valid legal reasons for Trump to withhold his return, and perhaps not, but this is an issue that could be discussed on the merits if only we had the lawyer's actual written explanation. Yes, of course, Cohen's tax advice is confidential, but Trump is free to waive the confidentiality, or even to redact any sensitive passages of Cohen's opinion.
I am on record as expressing skepticism about the benefits of legal market deregulation. I also believe that attorney regulations pertaining to fee-splitting and unauthorized practice of law serve important purposes. But these rules, like all ethics rules, are "rules of reason." They should not be applied in a ham-handed manner and without consideration of their purposes, especially when such applications inhibit low and moderate income people from obtaining legal services. Unfortunately, a recent UPL decision by the Supreme Court of Minnesota and state ethics opinions concerning Avvo Legal Services are likely to serve as fodder for critics who charge that the legal profession is primarily concerned with protecting its economic interests at the expense of the public.
The Minnesota UPL decision can be found here. Read the Legal Profession Blog’s synopsis here. Briefly, a Colorado attorney was asked by his in-laws, who live in Minnesota, to represent them pro bono in connection with a $2,000 judgment against them. The attorney agreed and contacted the judgment creditor's counsel via email to negotiate a settlement. The Colorado attorney identified himself as an out-of-state attorney and indicated to creditor's counsel that he would retain local counsel if his in-laws needed to file suit. Creditor's counsel filed an ethics complaint when the two attorneys were unable to reach a settlement after numerous email exchanges. Perhaps not coincidentally, the in-laws claimed that creditor's counsel had been harassing them prior to their son-in-law's intervention.
Setting aside the merits of the decision - and I believe that the dissent is correct that the attorney was providing legal services temporarily in accordance with Minn. R. 5.5(c)(4) - I worry about the decision's ramifications. It is unrealistic to expect that every Minnesotan with a legal problem will retain a Minnesota attorney. People sometimes turn to lawyers (and non-lawyers) with whom they are acquainted and may be outside of the jurisdiction to provide them with some basic legal help. Rather than focusing their enforcement powers on such situations, UPL committees and regulators are better served by investigating lawyers and non-lawyers who regularly offer legal services within their jurisdictions without being authorized to do so (as contemplated by MR. 5.5(b)).
There are, of course, situations where an out-of-state attorney’s provision of temporary legal services represents an "unreasonable risk to the interests of  clients, the public, or the courts.” See Minn. R. 5.5 cmt. 5. This was not one of those situations. The Colorado attorney had experience in the area of law, indicated that he was not admitted in Minnesota, and did little more than negotiate with opposing counsel over email on his relatives’ behalf. Does Minnesota really wish to discourage out-of-state lawyers from providing some form of counsel to Minnesotans in a situation where it would be impractical to hire an in-state attorney? UPL enforcement should not be untethered from its public protection rationale, especially given the ubiquity of unmet legal needs.
Similarly mechanistic reasoning can be found in recent ethicsopinions concerning Avvo Legal Services.* Avvo Legal Services operates as a marketplace that connects lawyers who have agreed to charge a particular price for a limited-scope legal service to individuals who seek that service. Avvo does not recommend any attorney. The consumer transmits the fee to Avvo and is then free to select among participating attorneys. If a representation ensues, Avvo transfers the entirety of the fee to the lawyer's client trust account.** In a separate transaction, the attorney pays Avvo a marketing fee from his or her operating account, the size of which depends on the type of matter. Avvo does not receive an additional fee even if the attorney and client choose to continue the engagement after the initial representation is concluded,
There are a number of important ethical issues that attorneys should consider before participating in Avvo Legal Services, as Professor Bernabe has noted [I commend his explanation of the MR 1.15 issues in particular]. However, the South Carolina and Ohio ethics opinions are too quick to conclude in my view that the payment scheme constitutes impermissible fee-splitting. In addition to the fact that Avvo is not paid out of the fixed fee, as MR. 5.4 cmt 1 makes clear, the purpose of fee-splitting rules is to protect the lawyer’s “professional independence of judgment.” From my understanding, Avvo does not employ the lawyer, does not recommend one lawyer over another, and has no involvement in how the legal services are delivered once the engagement is established. What precisely is the threat to the “professional independence of judgment” that justifies treating this arrangement differently from internet-based lead generation (which is permitted under MR 7.2)? And shouldn't the fact that Avvo Legal Services might help Americans more easily locate legal services and assess their potential cost - two central impediments to expanding access to justice- enter into the analysis?
I often tell my law students that if the legal profession does not make major strides in addressing lack of access to justice, others will do it for us. Unfortunately, the Minnesota UPL decision and potential curtailment of Avvo Legal Services are a step backward when we should be moving forward.
*The two most recent Avvo opinions were brought to my attention by Carolyn Elefant of My Shingle.
**This is the case for more time-consuming "start to finish services." Avvo Legal Services encompasses three different types of services, all of which operate slightly differently. For truly limited scope services such as providing thirty minutes of advice over the telephone or the reviewing a document, the attorney is paid upon completion of the service.
[ For purposes of full disclosure, I am acquainted with Avvo's Chief Legal Officer. He has never requested my opinion on Avvo Legal Services or any other legal matter. Nor have I discussed the state ethics opinions with him. ]
I hope readers may be interested in some research I have done on the ethical capacities of new advocates (mainly barristers within three years of being fully qualified). We surveyed them on their ethics training, looked at how their values may relate to their ethical dispositions and, most importantly, interviewed them with hypothetical ethics problems. Anonymised transcripts were then assessed by expert assessors to evaluate the advocates' ethical capacities. The results were a bit disquieting. You can read more here and link to the report.I would be really interested in people's thoughts.
There is no such thing as a "fiduciary duty" “as a businessman” to oneself. That is called greed. There is also no fiduciary duty to one’s family members to take advantage of loopholes and minimize personal taxes. Even in publicly held companies, the duty-to-minimize-taxes argument fails. Lawyers who advise clients that selfishness is a legal duty are just wrong.