Constant reader (and professional responsibility maven) Doug Richmond and fellow blogger (and professional responsibility maven) John Steele offer many Comments in this space that are deeply thoughtful and thought-provoking, and the ones they offered on my original post concerning Stanford’s retaliation against attorney Crystal Riggins for criticizing the University’s Title IX dispute-resolution procedures are no exception. For the most part, I don’t disagree with the points either of them make (actually, I do disagree with Doug on a few of his, but only a few), but I’d like to suggest that neither of them has given adequate attention to my principal concern.
My main disagreement with Doug Richmond’s Comment is with his leadoff assertion that Crystal Riggins “was not punished for doing her job.” That can’t be right. There’s no serious question whether Stanford punished her (by which I mean penalized her in retaliation for criticizing Stanford’s Title IX dispute-resolution rules), and I don’t think Doug disagrees. So our disagreement comes down to whether what she was punished for was “doing her job.” Her job was to act as the attorney for students seeking to have Stanford’s Title IX system recognize and remedy disputed claims of sexual violence. It cannot seriously be contended that it was either legally or ethically improper, or outside the legitimate scope of her engagement, to criticize and seek to change the rules of Stanford’s Title IX procedures that she contended (well within the realm of rational argumentation, whether you agree with her or not) were unfair to her clients. Period. So she was doing her job, just in a way that Stanford—who Ms. Riggins correctly and pointedly observed was not her client—disagreed with (and more to the point appears to have found embarrassing).
Doug’s Comment analogizes to attorneys who remain liable for defamation for statements outside official proceedings or for ethical violations for improper pretrial publicity. Both are bad analogies, as they depend on the attorney’s doing something legally or ethically prohibited. Ms. Riggins did neither.
John Steele takes a different tack, and points out that it’s hard to isolate a legal theory under which what Stanford did was either unlawful or unethical (in the sense of violating attorney disciplinary rules). I agree, and was careful in my post to emphasize all the legal norms Stanford most likely did not violate. The closest I could get to a legal wrong on Stanford’s part is a possible violation of Title IX (either in its procedural rules themselves or their application in particular cases), but I conceded that it's debatable.
I didn’t consider attorney disciplinary violations on Stanford’s part, mainly because I was focused on how proper and ethical Ms. Riggins’ conduct was. But that’s worth a moment’s consideration. Let’s start with the observation that the Stanford officer in charge of these policies (and who excluded Ms. Riggins from the referral list), is Senior Associate Vice Provost Lauren Schoenthaler, who formerly served in Stanford’s University Counsel’s office and is a licensed California attorney.
Bearing in mind that Stanford was never Ms. Riggins’ client, and only recommended her and obligated itself to pay for a certain number of hours of her services, one way to look at what Stanford did was to seek to define a limited scope of engagement for its referral counsel’s representation of aggrieved or accused students that does not include challenging or criticizing Stanford’s procedural rules, even if that would be in the represented student’s interest. Remember that the ethical rules cited in my original post require an attorney (here, Ms. Riggins) whose services are being paid for by someone other than the client (here, Stanford) to ensure that the attorney remains independent of the payor’s influence and loyal exclusively to the client. It could be argued that Ms. Schoenthaler, who bears the same ethical obligations that every lawyer in California does, sought to induce Ms. Riggins and other referral attorneys to violate their duties of loyalty to their student clients in violation of Cal. R. Prof. Cond 1-120 (see also Model Rule 8.4(a) to the same effect). The problem here (if you can call it that) is that the effort failed, and Ms. Riggins refused to compromise her loyalty to her clients.
It also could be argued that Ms. Schoenthaler caused Stanford to make or offer an agreement limiting a lawyer’s practice in violation of Cal. R. Prof. Cond. 1-500, specifically the agreement to recommend and help pay for client services so long as the panel lawyer does not in the course of those services criticize Stanford’s rules. (Model Rule 5.6(b) limits this prohibition to such agreements as part of settlements of “a client controversy,” but California’s Rule specifically disclaims that limitation.)
And it could be argued that Ms. Schoenthaler caused Stanford to improperly demand something of value in return for a referral, specifically a limitation on what panel lawyers would do for their clients, in violation of disciplinary and other rules limiting referral fees, capping and running. Again, this may seem a stretch, but the facts reported in the press can be seen to fit some of those prohibitions pretty literally.
I confess I have not done any detailed research to see how any of these disciplinary rules may have been applied in similar contexts, and I have my doubts about whether the State Bar of California would pursue any of them for any number of reasons. I also question whether they could be machined into some kind of civil claim if Ms. Riggins felt so inclined (though California’s broadly capacious Unfair Practices Act, Bus. & Prof. Code §§ 17200 et seq., is a candidate worth watching).
But ultimately none of this is the point.
The point I was trying to make, quaint though it may seem to an audience of lawyers, is that whether or not Stanford’s efforts to marginalize Ms. Riggins are enforceably unlawful or unethical, they are certainly unethical in the broader, moral sense: Stanford acted badly, and ought to be ashamed. On this, I think both Messrs. Richmond and Steele agree with me (John perhaps a little more strongly than Doug), and I’m glad for the company.
Speaking only for myself, I think that Stanford’s conduct especially deserves public condemnation (and voluntary reversal) for two reasons. One reason is that, in this context, Stanford’s interests as adjudicator may be colored if not tainted by other institutional interests. One such interest may be the desire to present itself to the public as a safe space free from sexual violence, making determinations of such violence an evil to be avoided as much as the actual assaults themselves. Another may be the desire to avoid criticism regarding both student conduct and the processes by which it is judged that could lead to serious sanction from the Department of Education.
The other reason that Stanford deserves condemnation is the one I emphasized in my original post: Stanford is not an ordinary commercial actor whose conduct ought to be judged merely by the morals of the marketplace. As a great university, it is infused with a public interest to act in exemplary fashion, to show the world how to Do Right under difficult and ambiguous circumstances. The failure to live up to that duty may not create a cause of action, but it ought to create a cause for remorse.