Thanks to my UNC colleague Al Brophy and the rest of the faculty in the Lounge for the invitation to spout off here, and for Al’s kind introduction before I start.
As Al related in his introduction, my principal research interests are Professional Responsibility and the Legal Profession. So I thought I would inaugurate my visit to the Lounge with a glimpse of that rare beast in the ethical menagerie, a faintly interesting report about allegedly improper legal advertising. (Hat-tip to the AmLaw Daily.)
It appears that some university researchers recently published a study concluding that mountaintop-removal coal mining—a highly controversial technique fiercely criticized by environmental interests—is correlated with an increased incidence of birth defects in the areas of Appalachia in which it is practiced. A crack legal team at Crowell & Moring, representing the National Mining Association, issued a short white paper criticizing the study’s methodology on various grounds, including that it failed to take into account the effect of inbreeding on the rate of birth defects among the affected Appalachian populations. In an irony that you couldn’t have made up if you tried, the coal industry’s intrepid advocates not only failed to mention a study showing that consanguinity among the affected populations was no greater than in the American population at large, but they also managed to misspell “consanguinity.” No kidding. So much for the “Deliverance” Defense.
But Bernie, I hear you ask, I thought you said this post was about lawyer advertising. Well, sort of. You see, the Crowell & Moring lawyers proudly posted their white paper on their firm’s website. It there raised enough of a ruckus that the firm removed it and issued a public apology three months ago. Apparently unsatisfied, an Assistant Professor at the Charlotte School of Law named Jason Huber just lodged a disciplinary complaint with the Office of Bar Counsel of the DC Board on Professional Responsibility, claiming that the website posting violated the ethics rules governing lawyer advertising.
Professor Huber, who appears to be representing no one but himself, alleges the posting of the white paper violates Model (and DC) Rules of Professional Conduct 7.1(a) and 8.4(c). Rule 7.1(a) prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” Rule 8.4(c) is a catchall provision prohibiting lawyers from “dishonesty, fraud, deceit or misrepresentation.” (Irony abounds. After noting the Crowell lawyers’ misspelling of “consanguinity” and other textual errors in their website posting, Professor Huber complains that the Crowell posting could “discourage meritorious claims for fear that the claimant’s family will be vilified as inbreed [sic] hillbillies.”) You can view the ethics complaint here (second hat-tip to AmLaw Daily).
Professor Huber cites no authority in his ethics complaint suggesting that public dissemination of advocacy in a scientific debate (however inept or one-sided) should be considered a “statement about the lawyer or the lawyer’s services” within the meaning of the disciplinary rule, or the kind of “dishonesty, fraud, deceit or misrepresentation” with which professional disciplinary authorities should legitimately concern themselves. I know of no such authority, and would suggest that, however disgusted one might be with Crowell & Moring’s advocacy, punishing it as a violation of professional ethics would raise some pretty serious First Amendment questions. Not to mention the practical concern that if we really intend to disbar every lawyer who makes a dumb argument, there would soon be none of us left. While this might be a breathtakingly original solution to the tragic oversupply of law graduates resulting from recent economic conditions, I’m not sure that’s the public interest Huber’s trying to serve.
So it appears that the Crowell pot may greet the Huber kettle on the coal-fired stove of public advocacy. A pox on both their houses, and all the crockery in them.