Disciplinary Complaints Against Crowell & Moring Dismissed

[Note: The following post originally appeared on February 21st.  I took it down in light of Mike Frisch's observation in the comments section that the post might contain information considered to be confidential under the D.C. Bar's Disciplinary Rules.  After conducting additional research and consulting with additional sources, I concluded that any attempt by the D.C. Bar to apply its confidentiality provisions to this post or to seek to discipline Professor Jason Huber (who supplied me with the information) would violate the First Amendment.  Professor Huber agreed with this assessment and has given me permission to re-publish this post.  I concluded that it would be useful to do so because the dismissals offer useful guidance on the scope of Rule 7.1 in a digital age.]

As some readers may recall, several Crowell & Moring lawyers were hit with disciplinary complaints back in 2011 because of a critique they posted on the firm's website.  The critique analyzed a scientific study that suggested that birth defects in West Virginia were higher than elsewhere because of mining operations in the state.  The lawyers contended that the study failed to take into account other possible causes of the birth defects, such as consanguinity (inbreeding).  To the lawyers' (and firm's) embarrassment, consanguinity is no more common in West Virginia than anywhere else, so the firm quickly removed the critique.  Despite the quick retraction, Charlotte Law School Professor Jason Huber filed a disciplinary complaint against the responsible lawyers, alleging violations of Rules 7.1 and 8.4. 

That's as much I knew about the matter until the other day.  As I was preparing for a presentation on legal ethics and social media, I decided to find out what ultimately happened to the complaints.  I reached out to Professor Huber, who was kind enough to send (and allow me to publish) the letters he received from the D.C. and West Virginia disciplinary authorities.  You'll see the complaints in both jurisdictions were dismissed -- in D.C., the complaint was dismissed on the merits; and in West Virginia, it was dismissed because of a lack of jurisdiction, but with some useful dicta on the scope of Rule 7.1 and a "reminder" to the lawyers to avoid "gross stereotypes."

For the reasons I mentioned in my earlier post, I think bar counsel in both states got this right, particularly in concluding that the communications at issue did not "concern a lawyer or the lawyer's services" for purposes of Rule 7.1.

Comments

[Mike Frisch]

Note that D.C. Rule XI, section 17 provides that dismissed complaints are confidential.

I believe that the provision violates the First Amendment rights of a complainant and correctly has no enforcement teeth, but it nonetheless is there.

[Andrew Perlman]

Thanks, Mike. I've read Section 17, and I'm having trouble finding the language that suggests that Professor Huber had no right to give me these materials. Can you point out what you believe to be the operative language for me? It seems to me that, unless the materials are subject to a protective order under Section 17(d), Professor Huber had a right to do what he wants with the communications he received from Bar Counsel.

Of course, I don't want to facilitate anyone's violation of a Rule, so if I need to remove the materials, I certainly will.

[Follow up]

What are the ethical implications of the law professor's filing complaints that were facially unjustified, in that (a) it was obvious the WV bar had no disciplinary jurisdiction, and (b) the DC complaint clearly failed to allege a pertinent violation?

And what are the academic ethics implications of a professor using these processes to try to punish First Amendment advocacy?

[Andrew Perlman]

"Follow up," regarding your point (a), I don't think it was frivolous to contend that the West Virginia bar might have jurisdiction over the lawyers' post on the firm's website. The post was arguably designed to generate legal business in West Virginia, so it's not farfetched to conclude that the post might be subject to the jurisdiction of the West Virginia disciplinary authorities.

Regarding point (b), I think you're right that the complaint failed to allege a violation. But that doesn't mean that the complaint itself was frivolous. In my view, there was a non-frivolous argument that the post in question might be subject to Rule 7.1 or that the post might constitute a violation of Rule 8.4. I personally did not think the lawyers' conduct violated either Rule, and the D.C. bar reached the same conclusion. But that doesn't make the complaint frivolous, and it doesn't mean that the professor who filed the complaint should be subject to discipline himself for filing the complaint. Indeed, there is a lot of ambiguity regarding the scope of Rule 7.1, particularly with regard to lawyers' social media communications, and this case helpfully identifies the kinds of communications that are outside of that scope.

The reality is that there are many claims that are filed -- both in disciplinary contexts and in other adversarial contexts --- that are a stretch or are not likely to win. There is often a fine line between frivolous and non-frivolous legal contentions, but in my view, this particular complaint fell on the non-frivolous side of the line, even though I personally did not believe the complaint was meritorious.

[John Steele]

My views aren't far from the view of "Follow Up."

I tracked down and read the academic article upon which the two complaints were purportedly based. In my view the complaints were pushing the outer boundaries of advocacy and the filing in West Virginia was particularly questionable.

I know that Madison said, "Some degree of abuse is inseparable from the proper use of everything," and so I'm inclined to give the complainants some latitude even though their complaints obviously lacked merit. Filing a complaint with a disciplinary body is a form of first amendment petitioning for the redress of grievances and we ought to indulge some meritless complaints. (But by the some token the speech by the law firm should be tolerated particularly since, as the bar concluded, the firm's speech was literally correct and the complaints were meritless.)

I wish the two state bars had simply concluded that they lacked jurisdiction and/or that the complaint lacked merit and said so. The did not need to and should not have added any dicta to their opinions.