Common Rule NPRM Finally Out (& the Ethics of Cause Lawyers Advising Clients to Disobey Preliminary Injunctions)

I'd begun a blog post about claims (see Mark Joseph Stern in Slate and Howard Wasserman at Prawfs) that the cause lawyers representing Rowan County, KY County Clerk Kim Davis acted unethically by "advis[ing] her," according to Stern, to disobey a court order preliminarily enjoining her practice of allowing her office to issue no marriage licenses to either same-sex or opposite-sex couples, thereby putting her at (considerable) risk of contempt (that show cause hearing, in which the ACLU has requested fines but not jail time, is scheduled for tomorrow). My quick and dirty take is that unless one is prepared to say that disobeying a preliminary injunction and accepting one's lumps in the form of fines and/or jail time is itself per se wrong and outside the bounds of legal ethics, such that advising a client to defy an injunction is no different than advising them to, say, lie on the stand (which doesn't seem to be the view that either Stern or Wasserman takes), then I tend to think that the legal and other risks (financial, emotional, reputational, etc.) of this strategy compared to her alternatives is something that should be subject to (to draw an analogy to medical ethics) shared decision-making between professional and client.

A cause lawyer should, of course, bend over backwards to ensure that her client understands all of her options and the likely consequences of each, especially when presenting options that align with the lawyer's cause and/or pocketbook. (I can't tell from Stern's bare assertion that Liberty Counsel "advised her to disobey the ruling" whether such a conversation took place or not.) But it's not obvious to me that including disobey-and-risk-the consequences among those alternatives is per se unethical. Indeed, one could make the case that deliberately withholding that possibility from the client out of concern that it is "too risky" is itself unethical in its paternalism. Nor was it unethical of the ACLU cause lawyers representing the couples in this suit to "advise them" to continue to litigate in order to establish a legal precedent that will mostly benefit others (and give the ACLU a very public win), despite the fact that the couples could instead drive 30 minutes to an adjacent county and start married life significantly sooner—provided that the plaintiffs were adequately informed of their options.

Yes, plaintiffs' sacrifice in this case is much more likely to be rewarded by a legal victory than is the defendant's, but legal (and medical) outcomes are not laypersons' only or necessarily most important measures of success, even if that is what lawyers (and doctors) tend to focus on. Some patients can and do reasonably value their ability to converse with lucidity over their ability to be free from pain, their ability to die a death they deem dignified over additional days, weeks, or even months of life, and so on. Who is the professional to say that a fine of $X, jail time of Y days, or a delay in legally recognized marriage (with its attendant benefits) of Z weeks or months is "too risky" or "not worth" the anticipated benefits, whether medical/legal or otherwise? These trade-offs, after all, are not primarily or ultimately professional judgments, even though professional expertise appropriately feeds into them. Or so I've previously argued in the context of cause lawyering.

But that will have to be my only comment on that topic, because after more than four years, sixteen federal agencies and departments have finally released their Notice of Proposed Rulemaking, suggesting numerous and significant changes to the Common Rule (the federal regulations that govern IRBs and much human subjects research).

It is 519 pages long.

I hope to have some quick thoughts at some point relatively soon. In the meantime, here is the tl;dr version of the NPRM, highlighting its major proposed changes (this also appears at pp. 21-26 of the NPRM):

Comments

[Burtlikko]

Under these circumstances, don't you think that a rational actor in Davis' position might calculate that the benefits of a little bit of imprisonment would, over time, outweigh the short-term costs? She gets to be a martyr, she gets to be a hero to a certain class of people. People who will pay money to listen to her explain how she was steadfast in her religious belief even when that mean ol' Federal judge sent her to jail for being Christian. (I realize that's not really why she's not at her liberty right now, but that's what the speech winds up sounding like.) And even if she's just a flash in the pan, how much money got thrown at that pizza company in Indiana for only hypothetically turning down the opportunity to cater a same-sex wedding? Davis could figure she'll be like that.

[Michelle Meyer]

Yes, exactly. For some people in her position, the incarceration and the media attention would be traumatizing. For others, there would be intangible and even tangible benefits in just the way you describe. I haven't the slightest idea which kind of person Davis is, and I doubt her lawyers do, either, which is why shared decision-making is so vital between professionals/experts and laypersons whenever values and preferences are a significant part of the equation, as they frequently are.