Lawyer, Discipline Thyself

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.

Comments

[superdry uk]

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.

[Amber]

I appreciate your concern for the environment. It has been an issue for so long; an issue that needs to be addressed and addressed NOW .

[Doug Richmond]

At the end of their paper, the Crowell & Moring lawyers invited readers to contact them regarding any environmental or other defense litigation needs they might have (I am paraphrasing). I don't think that the lawyers' conduct constitutes an ethics violation, and I cannot conceive of leveling such a charge based on the facts, but might that little business development pitch at the end of the piece make this a closer call than either you or I would like? Why do you think it relevant that Prof. Huber "appears to be representing no one but himself"? Representational capacity is not required to allege an ethics violation.

[Bernie Burk]

Doug asks two fair questions.

As to the significance of the fact that the white paper Crowell posted on its website concludes with an invitation to contact them for legal needs, certainly that makes the post more like an advertisement of the kind the ethical rules regulate. My principal criticism is rather that the relevant ethical rule Huber invokes prohibits "a false or misleading communication ABOUT THE LAWYER OR THE LAWYER'S SERVICES" (emphasis added). This is consistent with the rule's purpose to protect consumers from being misled about the lawyer they're considering hiring, that lawyer's qualifications and skills, or the kinds of outcomes the prospective client might plausibly expect. There is nothing in the specific statement Huber complains about--Crowell's misbegotten argument about the purported effects of consanguinity in Appalachian populations--that is "about the lawyer or the lawyer's services" within any sensible reading of that rule.

With respect to Doug's observation that there is no "representational capacity" required for standing to lodge a disciplinary complaint, again that's generally true. But in deciding which complaints deserve some allocation of painfully scarce disciplinary resources, bar authorities can, should and do "consider the source"--whether a complaint has been brought forward by someone who has actually been injured by the conduct complained of (or who at least can point to a real case of actual injury or serious risk of real future injury). Self-appointed guardians of a "public interest" speculating about possible intangible effects on distant populations that (judging by the local press reports linked to in the AmLaw Daily article) are capable of speaking for themselves raise concerns about whether the recourse to the lawyer disciplinary system is necessary or appropriate, concerns that I would hope the District of Columbia Office of Bar Counsel will take into account.

Bernie

[Scott Boone]

Crowell's statements in the posted white paper and the complaints raised against them by Huber appear to me to sound more in rule 4.1 (Truthfulness in Statements to Others) than in 7.1 or 8.4.

The comments following 4.1 do seem to indicate that 4.1 is primarily concerned with direct interactions between two parties in a dispute or negotiation. The preparation and publication of a white paper, however, is a communication containing statements that could be true or false and is something Crowell did as a part of representing a client. The question would seem to be whether the misstatements were material and whether the statements if material were made to a third party (as opposed to simply being posted for anyone and everyone).

[Bernie Burk]

There would be serious questions about whether Rule 4.1 should ever be applied outside the core situation it is envisioned to apply to, which is negotiating or advocating against an opposing party on behalf of a client.

More importantly, the statements at issue here are part of a scientific debate being conducted for the purpose of influencing public policy. Even lawyers have First Amendment rights to make dumb arguments. Rule 4.1 Comment 2 thus restricts the Rule's coverage to statements of "fact," a term of art from First Amendment jurisprudence that does not include even remotely debatable issues of scientific inference.

As I commented in the post, if we mean to disbar every lawyer who makes a bad argument, there will soon be none of us left.

I would urge the Lounge's readers to consider carefully the wisdom of grabbing snippets of disciplinary rules out of context and seeking to apply them for the purpose of silencing public debate, no matter how violently you disagree with the advocates or their positions, or how weak you consider their arguments.

Bernie

[Scott Boone]

I agree that applying 4.1 is a stretch, but you seem to be conflating two different issues. We're not talking about whether the lawyers argued for or against mountaintop removal or whether mountaintop removal causes birth defects or even about the validity of the scientific study on which the white paper was focused. In other words, we are not discussing "whether lawyers have First Amendment rights to make dumb arguments." Nor are we discussing "remotely debatable issues of scientific inference." Or at least, my comment was not. The relevant issue involves the statements made by the attorneys relating to inbreeding in Appalachia, which you posit as being false in your original blog post.

My post addressed whether a lawyer can ethically make a false statement. In some circumstances they can; in other circumstances they cannot ethically do so. The most relevant rule to this situation in that regard is 4.1.

Now there are serious issues with applying 4.1 to this situation, as I acknowledged in the first post. First, there is a question of whether this false statement is a "material fact." Second, as discussed, is whether 4.1 applies beyond the more traditional settings of adversarial litigation or business negotiation. I think these two issues are related because defining "material" requires that we think about what the lawyers are doing here, what their role is in their representation, what sort of interests or conflicts might be involved, and what procedures might resolve those conflicts.

I wanted to bring 4.1 into the discussion because I think it presents a very interesting question related to the development of the legal profession and the ethical standards that define that profession. As lawyers move beyond their roles as counselors in private or as adversarial gladiators in narrow limited contexts and increasingly into the roles of shapers of public opinion and policy, we have to consider how rules should apply in these new contexts. The model rules and comments, I would suggest, are particular crystallizations of a variety of policy and ethical concerns as applied to assumptions about what the practice of law actually entails. They have to incorporate those assumptions about the practice of law in order to provide clearer guidance. That does not mean, however, that we should not ask whether the rule and/or the ethical and policy concerns underlying the rule apply to a context that, I suggest, is "relatively" new.

One way to sum that up might be to ask "do lawyers have an ethical duty not to make false statements of material fact when publishing policy position papers on behalf of clients?" An affirmative answer does not of course mean that the lawyers in this particular instance violated rule 4.1. It's merely a preliminary question about the applicability of 4.1. And I think you can argue that 4.1 is applicable even though it's not a "typical" setting in which 4.1 has been applied, and thus I think you can argue that the answer to the question at the beginning of this paragraph is "yes."

Now, that being said, it seems doubtful that 4.1 was violated in this instance (assuming its applicability). The argument about whether the false statement about inbreeding in Appalachia is material to an argument about the validity of a scientific paper or to an argument about possible linkage between mountaintop mining and birth defects can be made, but I don't think it's particularly strong. Even more damaging for an argument under 4.1 is the requirement that the false statement be made "knowingly." "Know" and "knowingly" tend to create pretty high bars for proving violations under the model rules. You'd probably need a pretty good smoking gun to show it in this case.

"I would urge the Lounge's readers to consider carefully the wisdom of grabbing snippets of disciplinary rules out of context and seeking to apply them for the purpose of silencing public debate, no matter how violently you disagree with the advocates or their positions, or how weak you consider their arguments."

I would urge you in turn to consider why you would assume that I disagreed with Crowley or their client's position on mountaintop mining or why you would assume that commenters here at the Lounge are incapable of separating the consideration of legal ethical issues from political debates. As a matter of fact, I've spent a significant portion of my adult life living in the heart of Appalachia and as a result I am acutely aware of the vital economic role all forms of mining play for many people in Appalachia. I know more than one family whose entire income is derived from mountaintop mining. It's how they feed and clothe their children.

[Bernie Burk]

I am trying to post a comment here continuing my very interesting conversation with Scott, and the site is not letting me do so. Argh! Stay tuned.

[Bernie Burk]

OK, WE'LL TRY THIS AGAIN. APPARENTLY I AM SUCH A YAMMERHEAD THAT I NEED TO BREAK THIS COMMENT RESPONDING TO SCOTT INTO TWO PIECES. HERE'S PART I:

Scott, you make some interesting and valuable observations. Let me try to sort out where we may agree and where we may disagree.

At the outset, it seems to me that you have misunderstood one key point I was trying to make in my original post, a point that perhaps I should have made more clearly. When I criticized the Crowell lawyers for their bad argument that disproportionate rates of consanguinity in Appalachia caused greater incidence of birth defects there, I did not "posit" that what they said was "false." One study based on birth records (which is the study the Crowell lawyers ignored) does not remove the question from all scientific doubt. It does make the white paper look sloppy, incomplete, tendentious and unreliable; if the paper were an expert's report, I'd be expecting some pretty ugly cross-examination. But it was a bad argument. It was not a false statement of fact.

What do I mean by "false statement of fact," and why does it matter? It matters because the phrase "false statement of material fact" in Rule 4.1 and "false and misleading" in Rule 7.1 were both crafted in reference to definitions of categories of speech not protected by the First Amendment, and thus reflect free-expression concerns. We know this both from the drafting history of the Model Rules, and from the Supreme Court's multiple decisions making clear that imposing professional discipline for protected speech is unconstitutional. See, e.g., Bates v. Arizona.

Without getting into a lengthy digression, I think it would be a reasonably accurate oversimplification to say that the First Amendment does not protect statements that are provably factually false. Thus, in the context of scientific debate, propositions that are even weakly arguable are often considered non-factual, and thus often considered protected.
For this reason, contrary to the assertions at the beginning of your last comment, in this context we MUST be "talking about whether the lawyers argued for or against mountaintop removal or whether mountaintop removal causes birth defects [and] about the validity of the scientific study on which the white paper was focused," and about "remotely debatable issues of scientific inference." And thus we are inevitably "discussing 'whether lawyers have First Amendment rights to make dumb arguments.'"

No one has a "right" to make a false statement of fact (of the type left unprotected by the First Amendment). There may be various consequences if you do, including (among others) public criticism, civil liability for defamation, civil or criminal liability for fraud, and (for lawyers) professional discipline. But not every false statement of fact the First Amendment does not protect should be considered a basis for professional discipline, and no responsible authority reads the rules that way. The disciplinary rules that deal with false or misleading expression are limited by scope, context and consequences to narrow circumstances that reflect the drafters' understanding of how ill-suited the professional discipline system is as a tool to regulate public debate.

PART II FOLLOWS

[Bernie Burk]

HERE IS PART II:

This is illustrated by your attempt to explicate Rule 4.1 in this context. You point out that Rule 4.1 requires a false statement of "material" fact, and then question whether the statement Crowell made here is "material." You argue that it isn't, because in your view consanguinity (or lack thereof) in Appalachia has little to do with mountaintop mining. But that is precisely the OPPOSITE of what Crowell was arguing. Crowell was challenging a study that said mountaintop mining causes toxic runoff, which causes excess birth defects. Crowell's argument was that the excess birth defects in question were caused by inbreeding, not toxic runoff. It was obviously "material" to the argument they were making, which ultimately is that mountaintop mining doesn't hurt local residents. The whole problem with approaching Rule 4.1 in this manner is that it suggests that the more "material" a factual assertion is to a question of public policy or debate, the more likely the lawyer is to be disciplined for it. And what this shows is that the qualifier "material" is in the Rule because the Rule itself applies only to what we might loosely call face-to-face negotiation or advocacy: The misrepresentation is "material" if it is significant in inducing the person to whom it is made to do or refrain from doing something to his or her detriment. (That's why it's the first rule in the section of the rules entitled "Transactions with Persons Other Than Clients.") It was never intended to, and should not, have any role in regulating public discourse on matters of politics or policy.

Practical example: Michelle Bachmann states that the HPV vaccine causes schizophrenia. She is roundly criticized by scientists and lay people for having made a really dumb argument. Should she also be brought up on disciplinary charges to deprive her of her law license (assuming she has one)? What if she makes the argument while stumping across the country to support legislation to ban the vaccine? Another example: Creationism is (according to some) devoid of scientific support or (according to others) at least weakly scientifically arguable. A lawyer argues on behalf of his School District client that creationism is "legitimate" science, so that it is within the prerogatives of the School Board to include it in the District's curriculum. (Note that I am ignoring the pertinent Establishment Clause issues here because for these purposes they don't matter.) The lawyer (or more accurately, his client) loses. Should the Bar be allowed to deprive him of his license because he publicly argued a "fact" (the falsity of evolution) that has been proven "wrong"? Should he even be forced to defend his license from such a challenge?

A PART III FOLLOWS

[Bernie Burk]

HERE IS PART III:

What all this shows is that the disciplinary rules we've been discussing were never intended, and should not be construed, to authorize professional discipline on account of public debate over politics or policy. And the reason they were never so intended is to avoid difficult First Amendment problems when other remedies for unprotected falsehoods already exist.

One other point on which I think we disagree: You suggest that one reason this discussion is needed is because the Crowell lawyers are doing something new to the legal profession, and this new role tests the formulations and limits of the existing disciplinary rules so that we should question and rethink them. I don't see that at all. Lawyers have been participants in public discourse since time immemorial as legislators, as advocates in legislative, regulatory and dispute resolution processes, and in public debate. Louis Brandeis was advancing scientific studies to support the adoption of progressive legislation, and to defend that legislation both publicly and in court, a hundred years ago. This is nothing new.

All that said, your observations are timely and thought-provoking, and I appreciate the time and effort you devoted to them. I hope to hear from you again next time I post.

Bernie