Wednesday, January 27, 2010


NYLJ 6-05-07


In the present climate wherein the now-infamous right-wing muckracker can be lauded for his portrayal of a pimp looking for ACORN money and its second life on YouTube, there's a lot to be said for undercover revelators. Then again, perhaps not as much for this particular one as news breaks of him and a crew being caught trying to bug the office of the Senator from Louisiana yesterday. It is safe to say his defense is likely to be a cross between 'the public's right to know' and a 'harmless prank gone a bit too far', but that is not the comment here.

2. Put yourself in someone else's shoes, then--for real. Try it. Then walk around in them. Then pretend to be who you are not and do it without the benefit of a SAG or AFTRA card (or a license to wait tables in New York). Then lie to some people and get them to give you something or do something they didn't want to because they thought you were who you were pretending to be. That's how you become a crusading journalist, covert operative, or even public advocate.

That's also a con game, by the way.

Is it any different from putting on a wig and goatee set and marching into a chicken processing plant, claiming to be THE meat-packing mogul from Bratislava looking for a new investment, and exiting after sharing your vodka flask with the manager, a shift supervisor and the loading dock crew, looking like Colonel Sanders and sounding like Borat? It is, if you work for the FDA. Then, each time you toasted a guy and that microcamera in the flask’s heel took in a gigachip’s worth of health code violations and safety hazards, would that act alone—setting aside the impersonation of Kentucky’s major league fowl-baller—be a breach of the standards of conduct under Disciplinary Rule 1-102(a), and its subsections?

Now, while the first example may gall a lot of liberals (and it is not in this jurisdiction to judge the second), this one was for the benefit of the public, by a state employee, to get at what could be a serious (lest we forget: salmonella, e-coli, etc. outbreaks of recent memory) threat to public safety. Presumably, this is someone who has sworn to a code of ethics. (Yes, some government workers do.) And even though it may sound like the punchline to a joke, given the present climate of moral relativity and bitter cynicism, this is the way the world should work. We still need it as a "bright line" by which to measure conduct of one's office.

So it was for the good of the whole, yes? Does that make it any less a dirty trick? Do the ends justify the means?

It seems it was closer to permissible, if not exactly conforming to DR 1-102(a), in this jurisdiction, all things considered. Everyone else may think of the only analogy as coming from divorce proceedings in civil and entrapment in Criminal, but courts don’t have to be that rigid--or need to have the same “bright line” as the rulebooks do. This isn’t a school lesson—this is the real world, and sometimes the bar for the Bar must be lowered. And sometimes it should be bent.

So pull out that flask and give a toast to our dear good friend, ethics opinion No. 737 and to our dissemblers, and the new interpretation of “deceit or misrepresentation”. Call it equal opportunity deployment, or tit-for-tat, or quid pro quo—if you want to get fawncy. Sometimes you just have to fight fire with fire. It all comes back to mens rea, doesn’t it? Or, like it says on the British Empire seal and Order of the Garter—“Honi Soit Qui Mal Y Pense”, “evil to him who evil thinks”.

Food for thought, Democrats. Just avoid the fried chicken.

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