Oregon: “Women who have delivered a baby by Caesarean section must deliver their next child the same way if they give birth at Merle West Medical Center. The hospital’s board of directors today announced a new policy that supports a decision by local obstetricians to not deliver a baby vaginally if the mother has had a previous Caesarean section, a surgical procedure that delivers the baby by making an incision in the abdomen and uterus. The decision is based more on legal implications related to the potentially high-risk procedure than on medical statistics, said Dr. Rick Zwartverwer, vice president for medical affairs at Merle West Medical Center.” (Marcia McGonigle, “Hospital alters C-section policy”, Klamath Falls (Ore.) Herald & News, Jul. 8)(see Feb. 5, 2001). Update Nov. 29, 2004: New York Times covers the story.
Author Archive
Arizona wants less zeal
David Giacalone is posting more interesting stuff at his new EthicalEsq? blog than we can hope to keep up with, particularly on the topic of excessive contingency fees (on which he challenges Public Citizen to amend its not-exactly-pro-consumer stance). One state that has taken a step in the right direction lately is Arizona, whose Supreme Court in June adopted new Rules of Professional Conduct that come down harder on overreaching fees than do the rules of the American Bar Association (Jun. 30).
In recent years Arizona has made itself into something of a laboratory for legal innovation. Of particular interest to us (see Jul. 7 commentary) is a seemingly minor one-word change to the state’s Rules of Professional Conduct (Jun. 6). To quote the court system’s press release, the change “removed the obligation of an attorney to be a ‘zealous’ advocate of his/her client and substituted to ‘act honorably’ in the furtherance of a client?s interests. According to Arizona Supreme Court Vice-Chief Justice Ruth McGregor, ‘Arizona is the first state in the country to make this crucial rule change.’ … ‘We are advised that this definitional change will also be considered by the American Bar Association,’ says McGregor. ‘This change may appear to be subtle,’ explains Chief Justice [Charles E.] Jones, ‘but in fact, it’s a very significant foundational change in the Rules of the Court, and one that is designed to send a distinct message to attorneys.’ The term ‘zealous’ was eliminated from the preamble, because it was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent, according to one committee member. ‘Jones explains that the State Bar committee’s recommendation … harkens back to a time when lawyers were closely identified as officers of the court. As such, they were duty bound to represent their clients with personal and professional ethics and integrity in mind.'”
We’re impressed. Time and again, in our experience, the putative obligation to represent clients in a “zealous” fashion has proved the last resort of the scoundrel litigator and ethical edge-skater. Yes, in principle there can also arise dangers when lawyers aren’t zealous enough, but no sane observer could imagine that the big problem with American litigation is that lawyers care so much for honor that they aren’t combative enough. We’ll be watching with interest to see whether the change produces any felt difference in Arizona litigation practice.
Morales pleads guilty
Former Texas Attorney General and key tobacco-suit figure Dan Morales, long a focus of scrutiny on this page, has withdrawn his former plea of innocent and has agreed to a four-year prison term, pleading guilty to one count each of mail and tax fraud; he will also pay fines of up to $1.25 million (Ken Herman & David Hafetz, “Morales pleads guilty to mail fraud, tax evasion”, Austin American Statesman, Jul. 17; more stories). The mail fraud charge relates to a backdated contract in which Morales purported to bestow a chunk of the state’s tobacco-settlement booty on his friend Marc Murr (see Jun. 26 and links from there). Our big question — our only question, really — is: does this mean he’ll talk?
Australia: “Doctor must pay to raise boy”
“The High Court stunned doctors yesterday with a landmark finding that a surgeon who bungled a woman’s sterilization is liable for the cost of bringing up her child to the age of 18.” Kerry Melchior’s son Jordan is perfectly healthy, but she sued Queensland ob/gyn Dr. Stephen Cattanach and the state health department because the tubal ligation he had performed had not prevented pregnancy as intended. (Cynthia Banham, Sydney Morning Herald, Jul. 17). Dr. Andrew Pesce, who chairs the Australian Medical Association’s professional indemnity task force, said “the decision was a part of a pattern where doctors’ liability was gradually increased over time, so that ‘nobody actually knows what their obligations are'”. For similar American cases, see Apr. 26-28, 2002.
Escalating liability had already provoked an insurance crisis for ob/gyns Down Under, as in the States; especially hard hit are women practitioners who often maintain less than a full-time practice but must pay hefty flat-rate premiums anyway (Wendy Tuohy, “A labour of love becomes labour too hard, and too risky”, Melbourne Age, Jul. 5). Among those quitting is Dr. Denise Koong, though some of her patients have “begged her to reconsider, saying things like: ‘Give me the paper and I’ll sign it, I will promise not to sue you!'” Trouble is, the courts (certainly in the U.S., and we presume in Australia these days as well) toss out such written promises as unenforceable.
Bus driver who can’t distinguish traffic signals not protected by ADA
Pedestrians around New York City can relax a bit: the Second Circuit has upheld the right of the city’s Transit Authority to remove from his job as a bus driver Curtis Shannon, whose color-blindness renders him unable to distinguish traffic signals. (Shannon v. NYCTA, 332 F.3d 95, summarized at Neighborhood Legal Services site; Second Circuit, search on docket for #02-7266, decided Jun. 13, 2003).
FoxNews.com “Blog of the Week”
FoxNews.com’s “Views” section names us its “Blog of the Week“. If you’re interested in strange lawsuits that engage in creative blame-shifting, a good place to start is with our personal responsibility archives (& welcome Howard Bashman readers).
Suit charges lawyers with using fake clients in diet-drug cases
Mississippi: “Civil lawsuits filed in Jefferson County allege that lawyers signed up fake clients for a 1999 lawsuit that resulted in a $150 million jury verdict against the makers of a diet drug.” According to the allegations, lawyers knew that some clients being recruited into the action had never actually taken the diet drug but “looked the other way”. Defendant lawyers called the allegations “ridiculous” and “preposterous”. Federal law enforcers will not disclose details of their investigation of Jefferson County product liability litigation (see Jun. 29, May 7 and links from there), but it is known that the FBI has subpoenaed prescription records from Fayette’s Bankston Drug Store, which is frequently named in suits (see May 4-6, 2001). (Tom Wilemon, Beth Musgrave and Margaret Baker, “Lawyers faked diet-drug case clients, lawsuits claim”, Biloxi Sun-Herald, Jul. 1; “Miss. lawyers accused of wrongdoing in suit”, AP/Jackson Clarion-Ledger, Jul. 2).
Bilking poor clients
“A prominent San Francisco attorney who represented the young, sick and poor was arrested Tuesday on federal charges of stealing $2 million of his clients’ settlement money to support a lavish lifestyle that included a six-bedroom mansion and a 73-foot yacht.” At its website, the successful San Francisco law firm of Tehin + Partners boasts of having “achieved an exceptional record of performance in litigation and trial through our 20 years + experience as a contingency fee-based plaintiff’s law firm”, not to mention “A Legal Philosophy That Sets Us Apart”. Today’s San Francisco Chronicle has a full helping of grotesque details (Stacy Finz, “S.F. attorney charged with bilking underdog clients”, Jul. 16)
It bears repeating that of all the institutions to which the temporal wealth of poor people is entrusted, law firms are among the least regulated; when outside authorities finally step in to clean up the mess, as here, it is typically after the fact, rather than in a preventive way through the sorts of regular disclosure and auditing requirements that banks or pension funds must meet. Nikolai Tehin lists among his affiliations Board of Directors, San Francisco Trial Lawyers Association. Update Apr. 24, 2005: judge sentences Tehin to 14-year sentence.
On the Beeb, etc.
Our editor was interviewed at some length, particularly on pending gun and asbestos legislation, on the BBC World Service’s weekly World Business Review. (Accuracy of transcript not guaranteed.) There’s an audio link, too. Both links may disappear on Saturday when the BBC site updates to the next week’s show.
While on the subject of publicity, our editor’s book The Rule of Lawyers came in for a lengthy review from Neil Hrab of Canada’s National Post in the July issue of Organization Trends, a publication of the Capital Research Center in Washington, D.C. (“More Than Good Friends: Trial Lawyers and Nonprofits“, PDF format, scroll to p. 7). Also, thanks for very kind mentions lately to a number of weblogs you should know about: Ernest Svenson’s Ernie the Attorney, MedRants, Steve Pilgrim’s Rodent Regatta and Aaron Haspel’s God of the Machine (the most philosophical spin on fast-food lawsuits you’ll read this month — it’s not easily paraphrased, just go read it).
“Erin Brockovich’s Junk Science”
“Her new suit against oil companies and Beverly Hills has little scientific grounding” and the one that originally established her fame, over groundwater contamination in Hinkley, Calif., wasn’t much better, argues columnist Leon Jaroff at Time magazine (Jul. 11). We looked into the Brockovich saga a few years ago and came to very similar conclusions (Reason magazine, Oct. 2000); see also numerous posts in this space.