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February 10, 2017

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Alice Ristroph

If one of Ms. Riggins' clients wanted to sue Stanford for Title IX violations, should Stanford pay for or subsidize Riggins for that lawsuit?

I'm not an expert in rules of professional conduct, but I see a real difference between a public defender who advocates for different procedural rules, presumably arguing that such rules would serve not only clients' interests but the public interest more generally, and Riggins' advocacy, which is clearly in tension with Stanford's interests. Riggins told the Times that Stanford is not "getting it right" -- suggesting that Stanford is not in compliance with Title IX / OCR requirements.

Doug Richmond

She was not punished for doing her job. She does her job when she represents students seeking remedy and recognition for alleged sexual wrongs in the university dispute resolution process. Rather, she was talking to the press and it wasn't as though she was doing it, say, in response to a prosecutor's public comments about her client's conduct, which might be necesary to keep the jury pool from being tainted. Although it is not a perfect analogy, in many jurisdictions a trial lawyer who shares a complaint with the press does not enjoy protection against a defamation suit by the adversary under the litigation privilege, as she otherwise would for statements in the pleading were it simply filed with the court and served on other parties. Courts do not consider the re-publication of the statements in the complaint to the media to be relevant to the proceeding, and thus they are not absolutely privileged. Here, her statements to the N.Y. Times were not relevant to any proceedings she was handling, and thus she should not have been surprised when Stanford reacted negatively.

Moreover, this situation is not akin to a public defender who attempts to change procedural rules through public advocacy; in that case, the audience is a neutral third-party, i.e., either the judiciary or a legislature. For that matter, "able and experienced" lawyers know that public attacks on another party harden the other party's position more often than they influence desired change.

Please understand that I am not saying that Stanford acted properly in discharging Ms. Riggins--indeed, I think Stanford erred in dismissing her from its panel of outside counsel and further erred by explaining the discharge as it did. Under the circumstances, however, I cannot muster the outrage you seem to feel.

John Steele

I’m uncomfortable with Stanford’s position but it’s an odd fact pattern, isn’t it? Are there any Model Rules, California rules, California appellate opinions, or ethics opinions on all fours? If not, we need a good analogy where, as here, the third party payor is under no obligation to fund the lawyer at all but is willing to fund only lawyering that is focused narrowly on the merits of existing procedure and not on broader attacks that implicate the funding institution.
In other words, why can’t Stanford take the position that they’re not obligated to fund any lawyer but so long as they do they will fund only lawyers who litigate the case rather than attack the school? I realize that attacking the process is often inseparable from the best advocacy on the merits, but why is Stanford obligated to fund that? Even if they should fund that, I’m not sure I see an *ethical* requirement that they do so. It's a policy issue not an ethics issue.
The only comparable fact pattern that comes to mind involves the restrictions on the types of lawyering (e.g., no class actions, no lobbying, no seeking attorneys fees) that may be done by organizations funded by the Legal Services Corporation. The restrictions are often criticized but if I recall correctly the Ninth Circuit upheld them in a first amendment challenge. (I could be wrong about the current state of play on that.)
At the same time, this quote from a Stanford admin strikes me as unpersuasive, “We want to ensure that this legal support is fair to both parties, and it would be unconscionable and unfair to refer any student to an attorney who does not have confidence in our process.” In terms of having a belief in the soundness of the system, lawyers run the spectrum from believer to agnostic to skeptic to cynic to total disbeliever. There’s nothing unfair or unconscionable in funding a competent lawyer who has any of those stances. And Stanford is big and strong enough to take some relatively mild criticism without retaliating.

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