Posts Tagged ‘ethics’

December 11 roundup

  • “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” And Judge Sykes had much more to say besides that [Kevin Underhill, Lowering the Bar]
  • Man claiming to possess vast trove of secret Jeffrey Epstein data approaches two prominent lawyers. Episode sheds light on “extraordinary, at times deceitful measures” lawyers may employ “in an effort to get evidence that could be used to win lucrative settlements.” [Jessica Silver-Greenberg, Emily Steel, Jacob Bernstein and David Enrich, New York Times]
  • “How Cloudflare Stood up to a Patent Troll – and Won” [Alex Krivit, CloudFlare]
  • “By enacting government licensing of online speech, the Ending Support for Internet Censorship Act would risk increasing censorship instead of preventing it.” [Diane Katz, Heritage]
  • New Charles Blahous paper on where next for gerrymandering reform coincides with many of my own views [Mercatus, Mitch Kokai/Carolina Journal; more to say in a future article] “Roundtable: 3 experts on SCOTUS’ gerrymandering ruling” [Jerrick Adams, Ballotpedia, thanks for including me]
  • Changes in American law (torts especially) have trained us to blame those with money when we suffer a harm. Should it be a surprise that the resulting attitudes might spill over into the political system? [Robin Hanson]

George Eliot on clients’ demand for lawyers’ ethics

From Scenes of Clerical Life (1857), “Janet’s Repentance,” chapter 2 (paragraph breaks added):

Old lawyer Pittman had once been a very important person indeed, having in his earlier days managed the affairs of several gentlemen in those parts, who had subsequently been obliged to sell everything and leave the country, in which crisis Mr. Pittman accommodatingly stepped in as a purchaser of their estates, taking on himself the risk and trouble of a more leisurely sale; which, however, happened to turn out very much to his advantage. Such opportunities occur quite unexpectedly in the way of business. But I think Mr. Pittman must have been unlucky in his later speculations, for now, in his old age, he had not the reputation of being very rich; and though he rode slowly to his office in Milby every morning on an old white hackney, he had to resign the chief profits, as well as the active business of the firm, to his younger partner, Dempster. No one in Milby considered old Pittman a virtuous man, and the elder townspeople were not at all backward in narrating the least advantageous portions of his biography in a very round unvarnished manner.

Yet I could never observe that they trusted him any the less, or liked him any the worse. Indeed, Pittman and Dempster were the popular lawyers of Milby and its neighborhood, and Mr. Benjamin Landor, whom no one had anything particular to say against, had a very meager business in comparison. Hardly a landholder, hardly a farmer, hardly a parish within ten miles of Milby, whose affairs were not under the legal guardianship of Pittman and Dempster; and I think the clients were proud of their lawyers’ unscrupulousness, as the patrons of the fancy’s are proud of their champion’s ‘condition’.

It was not, to be sure, the thing for ordinary life, but it was the thing to be bet on in a lawyer. Dempster’s talent in ‘bringing through’ a client was a very common topic of conversation with the farmers, over an incidental glass of grog at the Red Lion. ‘He’s a long-headed feller, Dempster; why, it shows yer what a headpiece Dempster has, as he can drink a bottle o’ brandy at a sittin’, an’ yit see further through a stone wall when he’s done, than other folks ‘ll see through a glass winder.’ Even Mr. Jerome, chief member of the congregation at Salem Chapel, an elderly man of very strict life, was one of Dempster’s clients, and had quite an exceptional indulgence for his attorney’s foibles, perhaps attributing them to the inevitable incompatibility of law and gospel.

The standard of morality at Milby, you perceive, was not inconveniently high in those good old times, and an ingenuous vice or two was what every man expected of his neighbor.

Liability roundup

“You should be the hero of your story, not the villain. This is very doable.”

Lisa Bloom, whose Twitter bio describes her as “Trial lawyer fighting for victims of discrimination, harassment and abuse,” and who is also the daughter of well-known sexual-abuse attorney Gloria Allred,

was working behind the scenes with [Harvey] Weinstein — at a rate of $895 an hour — to quash the journalists’ investigation and thwart his accusers. In a confidential memo to Mr. Weinstein that Ms. Bloom wrote in December 2016, which is reproduced in “She Said,” she offered to help him damage the reputation of one of his accusers, Rose McGowan, and portrayed her background as a victims’s rights advocate as an asset.

“I feel equipped to help you against the Roses of the world, because I have represented so many of them,” Ms. Bloom wrote, before laying out a multistep playbook for how to intimidate accusers or paint them as liars. One of Ms. Bloom’s suggested tactics for undermining Ms. McGowan: “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”

[Alexandra Alter, New York Times; Yashar Ali (text of full memo, including “You should be the hero of the story” quote)]

Lawyers shouldn’t secretly record medical exams

“Marquette, Mich. railway trackman sues his employer, alleging an on-the-job injury. Employer schedules an independent medical exam to assess his injuries. Trackman refuses to fill out medical questionnaire and refuses to answer examiner’s questions. Also, his lawyer tags along to the exam, which is … uncommon. And the lawyer secretly records the exam on his cell phone. District court: Given the ‘flagrant and repeated misconduct exhibited by Plaintiff and his attorney,’ the entire case is dismissed. Sixth Circuit: Affirmed. Although we’re generally reluctant to dismiss a plaintiff’s suit merely to sanction the plaintiff’s lawyer, both the trackman and his lawyer behaved badly here. Judge Sutton, concurring: Also, we shouldn’t be at all reluctant to hold parties accountable for their lawyers’ misdeeds, even if the parties themselves are not at fault.” [John K. Ross, Institute for Justice “Short Circuit” on Mager v. Wisconsin Central, Sixth Circuit]

Feds charge doc, medical consultant in mesh litigation scheme

“Federal prosecutors in Brooklyn have charged a physician and the owner of a medical consulting firm over a scheme to persuade women to have their pelvic mesh implants surgically removed to bolster the value of lawsuits against the devices’ manufacturers.” The prosecutors charge that the two lied to women about the health risks of mesh and of its surgical removal, and participated in a system of improper bribes and kickbacks. “The procedures were paid with money from high-interest cash advances arranged by a group of so-called litigation finance firms.” [Matthew Goldstein, New York Times, earlier on pelvic mesh here, here, here, etc.] More: Goldstein on suits by clients against lawyers.

Liability roundup

  • Big win for scientific rigor in the courts as New Jersey joins 40 other states in adopting Daubert standards for expert testimony, in In re Accutane Litigation [Washington Legal Foundation: Evan Tager and Surya Kundu, Joe Hollingsworth and Robert Johnston] With the long domination of the Florida Supreme Court by its liberal bloc soon to end, is it too much to hope that Florida joins the national trend too? [Evan Tager and Matthew Waring, WLF]
  • California lawyers sue electric scooter companies and manufacturers after users run into pedestrians on street, park improperly in handicapped spaces, and leave them in places where they can be tripped over [Cyrus Farivar, ArsTechnica]
  • Defendants obtain fees and costs in suit against siren maker over firefighter hearing loss [Stephen McConnell, Drug and Device Law]
  • Some safety advocates’ flip-flops on autonomous vehicle legislation in Congress might relate to trial lawyers’ agenda of the moment [Marc Scribner, CEI, more]
  • “Labaton Sucharow agrees to return $4.8M in attorney fees after attorney finder fee is revealed” [ABA Journal, earlier on State Street/Arkansas Teacher Retirement System case here, etc.]
  • MGM, Fox settle class action claiming that box set of “all” James Bond films lacked two made outside the franchise [Eriq Gardner/Hollywood Reporter, earlier]

Opponent claims multi-line class action shop compensated plaintiffs

A Southern California class action firm “is accused of bribing cash-strapped 20-somethings to serve as lead plaintiffs and submit false testimony.” The firm, Newport Trial Group, is active in many categories of litigation readers of this site may find familiar, including suits over alleged food and cosmetic mislabeling, slack fill, and failure to advise customers that their phone calls were being recorded, and its founder has also been listed as counsel in multiple suits against large corporations over web accessibility and claims of patent infringement by non-practicing entities. [Jenna Greene, American Lawyer Litigation Daily courtesy Texans for Lawsuit Reform]

Ironically, the complicated and protracted litigation that led to the new setback arose not from the numerous suits the law firm or its founder filed against household-name national companies, but from one against a purveyor of nutritional items and supplements such as colloidal silver. Excerpt:

The district court judge, James Selna, explained his reasoning in a June 12 decision that does not bode well for the firm.

Natural Immunogenics, he wrote, “has put forth sufficient evidence to support its contention that defendants operated a fraudulent scheme to manufacture litigation.”

“Specifically, NIC has established that in camera review may reveal evidence that defendants have a pattern of manufacturing litigation, which involves the [Newport Trial Group] defendants identifying companies vulnerable to false advertising or wiretap litigation, recruiting individuals to serve as lead plaintiffs, instructing the individuals on exactly what steps to take to give them the appearance of having suffered actionable injuries, and concealing and misrepresenting the contrived nature of the lawsuits from the courts.”

I join Dr. Saurabh Jha to discuss law, medicine, and American tort history

A noteworthy podcast: I join Dr. Saurabh Jha [@RogueRad on Twitter] for an lengthy discussion of how American tort and medical malpractice law has changed over the past century, similarities and differences with Britain, how ethics in the legal field stacks up against ethical trends in medicine and the pharmaceutical business, contingency fees, the successes and shortcomings of legislated tort reform, trends in the courts, incentives for medical testing, and much more. It’s all part of Dr. Jha’s podcast series, associated with the Journal of the American College of Radiology. You can listen here.