Legal Ethics Forum

Medical Advertising

(Cross posted on The Faculty Lounge)

The MD Anderson Cancer Center, at the University of Texas, has been running television commercials in Chicago (and I presume elsewhere) for the past few months.  MD Anderson is beyond question one of the premier cancer treatment facilities in the United States, drawing patients from well beyond Texas.  The advertising campaign is obviously intended to lengthen its national reach, but I wonder if anyone else is concerned about the content of the ads.

This commercial, for example, consists almost entirely of testimonials by patients and medical personnel, including  what appear to be promises of results, spoken mostly by doctors: 

"You tried to take everyone.  But I won't let you."

"We will stop you."

"Cancer, you're going to lose."

At best, these statements seem tremendously exaggerated.  Perhaps they might even be seen as omitting "a fact necessary to make the statement considered as a whole not materially misleading."  See MRPC 7.1  After all, even MD Anderson cannot guarantee that every patient "will win."  ("And we are going to win" is the final line in the commercial.)

I showed this ad to my internist, a professor of medicine, who called it a "pretense of defeating cancer," while of course endorsing MD Anderson as "a wonderful place to get the best cancer care in the world."

Yes, I know that lawyer ads can be worse; often much worse.  But I have never seen a television ad for a law firm with comparable international status to MD Anderson.

What do others think?

Judges Intervening on Behalf of Pro Se Litigants

How much assistance may a judge provide a pro se plaintiff? Judge Jack Weinstein and Judge Richard Posner seem to favor the interventionist approach.

Judge Weinstein was “required” to intervene on behalf of the pro se plaintiff in Floyd v. Cosi, Inc., No. 14-CV-3772, 2015 WL 148458 (E.D. N.Y. Jan. 12, 2015). His intervention took the form of a series of leading questions put to the plaintiff at a hearing on defendant’s motion for summary judgment. The plaintiff’s answers established that his Title VII employment discrimination claims were not time-barred. After denying the summary judgment motion, Judge Weinstein recused himself, not because he appeared partial at the hearing, but because remaining on the case “could create” an appearance of partiality. He explained that if plaintiff continued pro se, “the court would probably be forced to intervene, and, in effect, advocate on his behalf, possibly prejudicing the defendant’s case.”

In Rowe v. Gibson, Judge Posner used information from a drug manufacture’s website and the Mayo Clinic’s website to discredit a prison doctor’s affidavit upon which the district court relied in granted the doctor’s summary judgment motion. Unlike Judge Weinstein, Judge Posner did not admit that he intervened on behalf of the pro se plaintiff, but that is exactly what he did. Judge Posner emphasized that the playing field was not level because the plaintiff had no access to “offsetting evidence” and the adversary process works best when there is parity in adversaries. Judger Posner simply helped achieve that parity. Judge Posner also bolstered plaintiff’s case by characterizing the evidence of the “deliberate indifference” to the plaintiff’s medical condition as “substantial” and branding the prison officials’ acts as “heartless” and “senseless.”

Contrary to the interventionist approach of Judges Posner and Weinstein, Rule 2.2 of the ABA Model Code of Judicial Conduct only permits “reasonable accommodations” to ensure fair hearings for pro se litigants. States adopting the ABA approach generally limit judicial assistance to explaining procedures and asking “neutral questions” of parties and witnesses. See, e.g., Wis. SCR 60.04(1)(hm) cmt. The non-intervention approach of the ABA also prohibits judges from independently investigating facts including gathering information from “electronic” sources. ABA Model Code of Judicial Conduct Rule 2.9(C) cmt 6.

So, should judges take the interventionist approach or the ABA approach when attempting to maintain an appearance of impartiality while doing justice in pro se cases? The answer is simple — whichever approach builds public confidence in the judiciary. The hard part is determining which approach best serves that goal. 

Eighth Circuit overturns sanctions against lawyer for deposition objections

Opinion here and below. (h/t: How Appealing)  The trial court had reviewed depo transcripts well after they had been taken, formed the view that the attorney had been improperly obstructive, and issued a novel sanction (i.e., the attorney was required to produce an instructive video about the ethics of depo behavior) without adequate notice. The appellate court reversed and rather than remand it decided that no further sanctions would be warranted. 

Download Ghezzi Opinion

Richard McAdams review of "Go Set a Watchman"

The review, at New Rambler, discusses in part the views of Monroe Freedman and Stephen Lubet about Atticus Finch. (h/t: Faculty Lounge) Excerpt:

While it might then appear that I am in accord with the iconoclastic critics of theMockingbird Atticus, I am not. I understand the misreading of Atticus in a way that parts company with them. The problem is not, as these critics seem to think, thatMockingbird readers saw Atticus as a hero because they mistakenly thought he was a true racial egalitarian. The problem is that the readers saw Atticus as a radical egalitarian because, for other reasons, he was a hero, and it alleviates cognitive dissonance to believe our heroes are unsullied and uncompromised. Which is to say that, despite my criticisms of the Mockingbird Atticus, he is heroic. Facing considerable risks, he tried to save a man he hardly knew from a false charge of a capital crime.

The dangers were even more obvious than the racism, but also bear description. First, Atticus faced risk to his livelihood. The generalist practice of law is a socially conservative business and some southern lawyers of the 1930s had to leave their town to practice elsewhere after their community decided they had fought too hard to defend blacks accused of serious crimes against whites. Atticus also faced physical risks, starting with the lynch mob outside the jail where Tom Robinson was held. That the newspaper editor, Mr. Underwood, was hiding in the shadows prepared to intervene with a shotgun on Atticus’ behalf merely confirms the potential for injury or death if the mob had pushed past him, which would likely have transpired but for Scout’s accidental intervention. Atticus faced an added danger from impugning the credibility of the Ewells at trial. In retaliation, Bob Ewell tried to provoke Atticus into a fight by spitting into his face and, when that failed, tried to murder his young children with a knife. Atticus did not stay home when the lynch mob formed and he did not play it safe by offering a perfunctory defense for Robinson, as his community expected.  

Like most readers, I therefore revere the Atticus Finch of Mockingbird. Partly I admire him because he led his white community in the right direction, towardsracial justice, however impossible it would be for him to lead or push very far given his compromised moral vision and the ultimate need for black leaders to mobilize mass action. More importantly, however, I revere Atticus because he was willing to take serious risks with his life and reputation to stand for the limited justice his conscience demanded. If there were white radicals in the fictional town of Maycomb, Alabama, I would join others in praising the superiority of their vision of racial justice. But I would also lament the fact that, unlike Atticus, their courage apparently failed them and they remain invisible in the novel, realistically so, as they were frequently (though not always) invisible in small towns throughout the 1930s Jim Crow South. When it comes to preventing or correcting injustice, sometimes the world works this way: the courageous but compromised individual accomplishes more than the principled but timid one. Here, I think of the fact that the Yad Vashem in Israel bestows the honorific “righteous among the nations” on non-Jews for having risked their lives to save Jews during the Holocaust, not for holding the best, most enlightened views of Jews. There was never reason to think Atticus had the most enlightened views of African-Americans, but when the racist mob came for Tom Robinson, he did more than speak out.

For that reason, the contrarian criticisms from Freedman, Gladwell, and Lubet, and the like, always struck me as strangely miserly with praise, as if they share in common with the deifiers of Atticus Finch the inability to abide a flawed hero. More generally, I have always suspected that much of the criticism and occasional disdain for Mockingbird and the Mockingbird Atticus is inspired by the novel’s best-seller status, its being required reading in many public schools, and the sanitized popular understanding of Atticus, all factors about the public reaction to the novel rather than the novel itself. If there were any one race novel good enough to require millions of school children to read, to prompt difficult discussions of race, it would plausibly no longer be a novel set in the 1930s South when the salient racism was so overt and vicious that it makes it difficult for white readers to recognize contemporaries in the racists of the story, who are entirely too easy to condemn. As inventive as it was to tell the story though an unreliable narrator, an eight-year old girl, any singular literary introduction to race would contain deeper depictions of the victims of racism, who are mostly beyond Scout’s comprehension.

Ben Trachtenberg, "No, You 'Stand Up': Why Prosecutors Should Stop Hiding Behind Grand Juries"

Article. Abstract:

This Essay argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Essay uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include (1) the exercise wastes the time of citizens forced to serve on grand juries; (2) the deliberations might, despite the prosecutor’s wishes, result in indictments contrary to the interests of justice; and (3) by “passing the buck” to the grand jury, the prosecutor evades accountability for his own decisions.

Richard H. McAdams, "Empathy and Masculinity in Harper Lee's to Kill a Mockingbird"

Article. (h/t: Law & Humanities Blog) Abstract:

Harper Lee’s To Kill a Mockingbird illustrates a troubled relationship between lawyering and empathy and between empathy and masculinity. To begin, empathetic understanding has two sides: it can produce compassionate or altruistic behavior, but there is also a strategic value: a competitor who understands the thoughts and feelings of others is better able to anticipate an opponent's next move and stay one step ahead. Atticus Finch demonstrates both aspects of empathy: his ability to imagine the world from the perspective of others makes him a more compassionate and helpful father and neighbor, but also a more effective lawyer, better able to cross-examine adverse witnesses and to make arguments that (might) appeal to jurors. Atticus understands better than anyone else in Maycomb the tragic predicament of Mayella Ewell, but he uses his empathy to harm her, that is, to help his client Tom Robinson by exposing her as a liar. The irony is that the empathetic insight that makes Atticus the best person to cross-examine Mayella also makes him (among all those who believe she is lying) feel the most compassion for her. But the role of zealous advocate leaves limited room for showing compassion to one's adversary.

Empathy connects with the novel’s focus on masculinity. The novel offers a new version of white manhood in the Jim Crow South. The conventional white southern male of the 1930s romanticized the Lost Cause of the Confederacy and adhered to a strict code of chivalry that required the use of violence to assuage insults to honor, particularly the honor of white southern women. According to this chivalric ideology, the greatest threat to white womanhood was black male predation, and the manly response was the lynching, not only of alleged black rapists but of other black men whose behavior seemed to question white supremacy. The novel offers Atticus as a male hero who rejects the white supremacist assumptions of lynching. Less obvious are the tools the novel uses to draw our attention to the concept of manhood and to invert its standard meaning. Atticus' courage is nonviolent, which the novel contrasts with cowardly violence; Atticus fights for a lost cause that is not the Confederacy, but its victim; and Atticus acts valiantly by protecting an innocent black man from the accusation of a white woman. Southern chivalry is turned on its head. The connection to empathy is that Atticus' sense of empathy is one of the key ways in which he systematically violates period expectations for masculinity.

Defending the worst: French lawyer, Sophie Duval, says terrorist shooter was merely a robber

It's a good thing when lawyers step up for horrible people and start building a defense from whatever facts might help. In the wake of the terror shooting on the train heading to Paris, defense lawyer Sophie Duval now represents the shooter, Ayoub El-Khazzani, and has publicly suggested that her client was a homeless man who found the weapons and decided to engage in a simple robbery. Story from McClatchy. Vid clips, in French, featuring the lawyer are here. Excerpt:

“He doesn’t understand why this incident has taken on such great proportions,” the lawyer, Sophie Duval, told the French newspaper Le Parisien. “To me, he looks to be somebody who was very sick, somebody very weak, as if suffering from malnutrition, very, very thin and very haggard.”

She said El-Khazzani found the weapons he is accused of using on the train in a suitcase that he found in a park in Brussels. She said he had been sleeping in the park. The weapons he found, allegedly, included the AK-47 rifle, a pistol, nine ammunition clips and a box cutter.

She said he’d been homeless since “his identity documents were stolen in Brussels.” She said that after finding the weapons, he hatched a plan to rob the “many rich people” who would be on the train to Paris.

 

Stephen A. Saltzburg, "Advocate Yes; Witness No"

Article. Abstract:

This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.

Samuel J. Levine, "Judicial Rhetoric and Lawyers' Roles"

Article. Abstract:

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for other private attorneys.

This Essay considers the rhetoric some judges have used to characterize the respective duties of prosecutors and criminal defense attorneys. The Essay suggests that, although this rhetoric often expresses admirable aspirations and ideals, it improperly blurs the lines between the roles different lawyers play within the adversarial system. Specifically, these judges have used language that would seem to place additional limitations on both the methods prosecutors employ in seeking to obtain just convictions and the tactics criminal defense attorneys employ in zealous advocacy of their clients’ interests. This Essay concludes that judges should avoid such rhetoric, which has the potential to undermine basic principles of the American legal system.

Immigration lawyer admits violating court order; says he was frustrated on behalf of clients

Interesting story: an immigration lawyer, frustrated by what he viewed as unlawful and unfair detainment of families, deliberately leaked a sealed tentative ruling by a federal judge holding that the detention was unlawful. Stories here and here. The lawyer's statement to the court, basically admitting the violation and asking for mercy, is here. Excerpt from the lawyer's response to the court:

Mr. Johnson fully admits that he violated the Court’s May 12th order and that he acted wrongfully by disclosing to the media the Court’s tentative ruling and the plaintiffs’ settlement proposal. The violation was not directly involved in a proceeding. It was more directly related to the parties’ settlement negotiations. However, it involved a specific order of the Court entered upon the stipulation of the parties. While Mr. Johnson had no intention of showing any disrepect toward the Court nor in disrupting any of the proceedings in this litigation, his conduct amounted to a breach of the Court’s trust.

 

And Mr. Johnson fully admits this and accepts responsibility for his actions.

 

The question before the Court is what is the minimal necessary action by the Court to achieve the desired result. Here, the clear end for the Court is to ensure that no further disruptions to the litigation occur, to ensure that the Court is given proper respect, and that it’s orders are followed.

 

The practical opportunities to correct this error are limited. There is no way for Mr. Johnson to undo the disclosure to the media. However, the Court is assured that no further breach of the Court’s trust nor any disobedience to the Court’s orders will occur in the future. Mr. Johnson is no longer affiliated with the case. He is no longer a consultant to plaintiffs’ counsel, nor does he have access to any confidential information regarding the matter.

 

In evaluating the appropriate action for Mr. Johnson’s conduct, the Court should weigh heavily the circumstances surrounding Mr. Johnson’s conduct but also his character and dedication to the legal cause of immigrant children and their families. As more fully set forth in Mr. Johnson’s declaration, as well as the evidence from the letters of support for Mr. Johnson, he is dedicated to the plight of immigrant families from Central America, and his commitment to their cause as well as his expertise are highly valued in the immigration law community.

 

While Mr. Johnson has gained much notoriety and respect among immigration law practitioners, he is still a young lawyer. The Court should also consider that in this particular case, Mr. Johnson’s actions here were not in his capacity as a lawyer representing specific clients. Of course, as a licensed attorney, he should still have behaved in a manner becoming of an officer of the Court—he should have known better. He should have foreseen the conflict between his position as a consultant in this litigation and his obligation to his own clients. And it was this commitment to his clients and his motivation to end the suffering they have and continue to endure that led to his rash decision and wrongful conduct—not any disrespect for the Court or intent to impede the fair administration of justice.

 

There is no need for any additional sanction nor a referral to the New York State Bar here. The publicity of Mr. Johnson’s actions has already had a detrimental effect on his reputation in the immigration law community—particularly among the organizations in which Mr. Johnson has been involved. It will take some time he can regain the trust of other professionals who work in the immigration field. Additional discipline by the licensing authority would only add restrictions on his ability to practice entirely. As Mr. Matthew Guadagno, Adjunct Professor at Brooklyn Law School, writes in his letter to the Court: “[Mr. Johnson] needs guidance, not punishment.”