Only three days after Judge Kaplan’s spectacular ruling in the Chevron/Ecuador case, notes Paul Barrett at Business Week, “a state appellate court in California upheld a trial judge’s finding that what had been billed as a watershed liability verdict against Dole Food over pesticide use in Nicaragua was actually the product of a corrupt conspiracy by plaintiffs’ lawyers.”
The case at issue in the March 7 ruling, known as Tellez, went to trial in 2008 and produced a multimillion-dollar verdict for workers. That verdict was thrown out when Dole’s attorneys proved that many of the plaintiffs never worked for the company and weren’t, in fact, sterile. Witnesses and investigators were intimidated in Nicaragua, and plaintiffs were coached to concoct false stories.
Barrett has related pieces here and here. He notes the string of high-profile plaintiff’s lawyers tripped up by unethical conduct — Dickie Scruggs, Bill Lerach, Mel Weiss, Stan Chesley — and observes that the jackpots obtained by the mass tort bar in the 1990s incentivized, when they were not themselves the result of, ethical problems that have taken years to play themselves out. I’ve been on these themes since (and before) my book The Rule of Lawyers, and began tracking the banana pesticide litigation five years ago.
“A lesbian couple who married last week want a federal judge to throw out a lawsuit against the state and the LDS Church that listed their names without their knowledge or permission. … ‘Mr. Smay never had authorization, consent or permission from me or my wife to file a lawsuit on our behalf,’ Fowler wrote in a court declaration.” The couple had married following an unrelated ruling by a federal judge on a challenge to Utah marriage law, and had been the subject of Dec. 25 coverage in the Salt Lake Tribune newspaper, which one of the pair believes might have called them to the lawyer’s attention. [church-affiliated Deseret News, KSL, Religion Clause] For another instance in which someone complained of being named as a plaintiff in a lawsuit without their consent, see this 2007 item.
Update: court tosses suit; lawyer insists he doesn’t need couple’s permission to file suit, but other lawyers tell the Salt Lake Tribune he’s wrong.
The partner from the prominent plaintiff’s and class-action firm testified that he signed on to the much-ballyhooed environmental suit against Chevron, then backed out almost immediately after seeing the ethical issues [Reuters]
P.S. Testimony from Philadelphia attorney Joseph Kohn of Kohn, Swift, & Graf also appears unhelpful, to say the least, to Steven Donziger’s case [Paul Barrett, Bloomberg Business Week]
More coverage for the Frank Buckley-edited new book on overlegalization, The American Disease [Richard Reinsch/Library of Law and Liberty, Alejandro Chafuen/Forbes] Here’s Buckley in the National Post:
If litigation rates are four times smaller in Canada than the United States, this should not occasion surprise: Subsidize something and you get more of it; penalize it and you get less of it.
Differences in legal ethics matter, too. In America, more than elsewhere, lawyers are encouraged to advance their client’s interests without regard to the interests of justice in the particular case or broader social concerns. American lawyers’ professional culture is unique in permitting and implicitly encouraging them to assert novel theories of recovery, coach witnesses, and wear down their opponents through burdensome pretrial discovery.
Does the system protect its own? “A former Alameda County Superior Court judge charged with swindling a 97-year-old neighbor out of her life savings pleaded no contest Thursday to elder abuse and perjury and will not face jail time.” [San Francisco Chronicle, earlier]
Cathy Young arraigns the press for “an ideology-based, media-driven false narrative that has distorted a tragedy into a racist outrage.” Bob Somerby at Daily Howler has been documenting chapter and verse for some time, including this reminder of how the New York Times early on, taking dictation from Martin family lawyers, popularized a super-inflammatory “two-shot, cold blood” narrative that influenced public perceptions. Much of this is already familiar to readers of Overlawyered coverage including posts discussing media handling of the case here, here, here, here, and here.
My own theory — admittedly shaped by my professional interests — is that if you dig beneath the failure of a credulous press here you find a failure in legal ethics. While the press did publish one untruth after another about what happened that night and about the principals, a large share of those untruths can ultimately be traced to the offices of Benjamin Crump & Co., with some later help from Angela Corey’s office.
What about ideological outlets like ThinkProgress, which disgracefully promoted one error after another in egging on the press frenzy? To quote what I wrote at the time Zimmerman was charged:
The thing is, “Stand Your Ground” hadn’t really been a pet issue one way or the other for many of those who now harp on it. I think the better answer is: because many people yearn for ways to blame their ideological opponents when something awful happens. It’s much more satisfying to do that than to wind up wasting one’s blame on some individual or local police department for actions or decisions that might not even turn out to be motivated by ideology.
Consider, for example, the efforts to set up the conservative American Legislative Exchange Council as somehow the ultimate villain in the Martin shooting. Left-wing groups, assisted by labor union and trial lawyer interests, had been pursuing a campaign against ALEC for months before the Martin case, in hopes of making the group radioactive among generally liberal donors like the Gates Family Foundation and the Coca-Cola Co. Nothing had worked — until the synthetic Stand Your Ground furor finally afforded an opening.
Commentary has un-paywalled my July article on the feds’ “blueprint” for how colleges and universities must deal with charges of sexual misconduct. I explain why despite a retreat to a seemingly less extreme interpretation of the law, the dangers remain that the Department of Education and Department of Justice will arm-twist academic institutions into stacked disciplinary methods and new curbs on speech. Read it here (and also consider subscribing to Commentary, gates aside). Earlier here, here, etc.
Two points worth noting: first, while the Obama administration has pushed the new plan hard, the wider trend of gradually stepped-up federal supervision over university life has been going on for decades under Republican and Democratic administrations alike. There is not much resistance: university officials and organized professors themselves are relatively half-hearted about sticking up for their own institutional autonomy. Indeed, the federal prescriptions represent in some ways a consolidation of power by already-powerful elements within the academy, as opposed to a perceived hostile takeover from the outside. In the same July issue of Commentary, Philip Hamburger has an excellent article outlining how university researchers have for decades now tamely submitted to federally prescribed controls — overseen by so-called IRBs, or institutional review boards — over such relatively innocuous forms of “human-subjects research” as interviewing politicians and observing passersby in public places. In 2007, David Hyman wrote for Cato’s Regulation magazine on “The Pathologies of Institutional Review Boards.”
P.S. Much more on IRBs from George Mason’s Zachary Schrag (book, another interview, more, blog).
Cy pres, public-sector style? “A veteran Manitoba Crown attorney has been fired after he dropped charges against a Winnipeg company involved in a workplace accident — only to have the company make a substantial financial donation to a charity he oversees.” The prosecutor has defended his actions on the grounds that he did not direct the donation and that “the company made its own decision to choose the charity he was connected to”; he is not alleged to have benefited from the charity. [Winnipeg Free Press]
An attorney for a Pennsylvania Supreme Court Justice denies that there was anything improper about personal injury referral fees paid to the judge’s wife, who has also served as his chief aide over much of his time on the bench. Eight law firms are reported to have paid the judge’s wife referral fees; although most of the amounts have not been disclosed, one that was disclosed amounted to $821,000. Legal ethics expert Geoffrey Hazard said the judge “should not have participated in any case involving a firm that had been a source of referral fees for his wife. However, Bruce Ledewitz, professor of law at Duquesne University, said he did not think McCaffery was under an obligation to tell litigants about the referral fees.” An attorney for the judge “said the newspaper had engaged in a ‘slanderous campaign’ to pry into ‘Ms. Rapaport’s legitimate and proper legal business relationships with her colleagues.’” and said the law firm responsible for the large fee noted above had not had a case before the court. [Philadelphia Inquirer via Milan Markovic, Legal Ethics Forum; PhillyMag]
Lawyer in Apple’s law firm turns out to have been secretly advising and investing in patent-holding entity (repped by Hagens Berman) preparing a legal onslaught against Apple. “Why didn’t Morgan Lewis … see an ethical problem in letting one of its partners invest in a patent troll, especially one specially designed to target one of the firm’s big clients? And how many other big-firm lawyers are entwined with ‘start-ups’ that are actually holding companies, created to attack the very corporations they are supposed to be defending?” [Joe Mullin, Ars Technica via @tedfrank]
Writing at Capital Research Center’s Labor Watch:
A shocking change in American labor relations is brewing at the U.S. Department of Labor, which is expected sometime soon to alter a major regulation. The change involves a new interpretation of the “advice exemption” of the Labor Management Reporting and Disclosure Act. Specifically, businesses would have to disclose the names of, and fees paid to, attorneys and consultants who advise them on union-organizing activities. In turn, attorneys and consultants providing such advice would be required to disclose their client lists and the fees they receive.
If that sounds like a road map for retaliation and strong-arming, with dangers for traditional attorney-client confidentiality, well, you’re getting the idea. Furchtgott-Roth says the department has evaded regulatory review by low-balling the proposal’s billions of dollars in costs. “The change has no basis in existing law or precedent.”
The ultimate Overlawyered story? Minnesota: “An Eagan lawyer is suspended indefinitely after having an affair with a client whom he represented in a divorce, then billing her for time they spent having sex. … At various points, Lowe billed the woman for legal services on the dates of their sexual encounters, coding the time as meetings or drafting memos. … [He] won’t have a chance for reinstatement for at least a year and three months after the decision… by the Minnesota Supreme Court.” [St. Paul Pioneer-Press]