• February 9, 2018

WhisperingUpdate (February 9, 2018): If you are late to the game, you (and all of us) must confront the painful truth: the “world-wide web” is a world-wide fetid cesspool of information, misinformation, distortion, and propaganda.

Lawyers and all people are vulnerable to unjustified and unfair personal attacks. The cost of disseminating defamation has never been lower. Even ignoring that the punishing cost of legal remedies make them beyond the means of most people, there is a serious question of whether one can ever recover fully from widely spread vicious lies in the digital age.

In the original post below, we touch on the complex issue of lawyers’ reputations and the particular challenges they face in establishing them and protecting them.

As it turns out, we are not the only ones focusing on this problem.

Legal ethicists nation-wide have been grappling with rules for lawyers in responding to client complaints (or more likely, former client complaints). This is particularly important with the rise of social media and the internet. Lawyers’ hard-earned reputations can be badly damaged by false and public accusations of wrong-doing or malfeasance (professional negligence, that is). Under many ethics rules governing lawyers’ obligations to keep client information confidential, the rules effectively prohibit the lawyers from responding to false allegations.

Here, linked, is Rule 1.6, the Minnesota ethics rule guiding lawyers on their duty of confidentiality to their client and former clients (setting out the rule and exceptions to the rule). It is subject to criticism because the language is confusing and unclear.

Here, linked, is a controversial Minnesota Ethics Opinion (Opinion No. 24) concerning Rule 1.6 elaborating on the scope and reach of the rule. It warns lawyers about responding to public criticism, but it gives little guidance.

And here, linked, is a proposed amendment of Rule 1.6 (and notes describing the history of the issue). The proposed new rule seeks to clarify the language in the rule and give lawyers more guidance about what public client criticisms they can and cannot respond to (and some guidance as to how they might respond if they choose to).

We will see how this proposed rule change fares.

Original post (January 11, 2016) (under the headline “More on Reputation, Lawyering, and Digital Darwinism”): It might be fair to say that we are obsessed with the nature of “reputation” in the 21st century. With each step we take cradle to grave now, we leave behind an ever-expanding and immense trail of digital detritus.

We believe that we all must be distrustful of  “reputation” (and its first cousin, “gossip”).

We all chart our course through both our personal and professional lives with the knowledge that there exist gigantic, amorphous, scattered dossiers about us. We all dip into our own networks in the hope of gathering “intel” on other people.

What do these crowd-sourced dossiers say? What are they based on? Could there be errors (favorable or unfavorable)? Can errors ever be corrected?

Reputation is particularly complicated and difficult for lawyers for several reasons.

First, given the complexity of our services and the inherent and high degree of uncertainty of outcomes (for litigators and transactional lawyers), there is a serious risk of misinformation based on chance. A lawyer who tries cases will win some and will lose some. Some business deals will collapse; others will succeed. How will consumers of legal services assess one loss, two, three wins against two losses, etc.?

Also, lawyers (particularly litigators, of course) are advocates. Sometimes they advocate unpopular and losing positions on behalf of unpopular or loser clients. Some undoubtedly fail to appreciate fully the distinction between the advocacy and the advocate (a version of the widely known phenomenon of “shooting the messenger”).

Still further, lawyers, as advocates, do the bidding of their clients to some large degree and they owe their clients the duty of confidentiality even after the case or engagement ends. Therefore, a lawyer cannot, for example, explain that she is taking a stupid or controversial position because her client insisted on it (assuming that the position is merely stupid or controversial and not a breach of professional ethics, which a client cannot require of a lawyer, of course).

These thoughts came to mind in light of a recent fairly strongly worded ruling in Great Lakes Transmission v. Essar Steel, a case that I have posted about previously.

Taken by Hinode's Solar Optical Telescope on Jan. 12, 2007. Source: Wikimedia Commons

Taken by Hinode’s Solar Optical Telescope on Jan. 12, 2007. Source: Wikimedia Commons

The Court’s blistering pique seems to emanate from U.S. District Court Judge Susan R. Nelson’s (D. Minn.) rejection of Defendant Essar Steel’s motion for a new trial.

“Defendants’ arguments reveal a fundamental misunderstanding about the landscape of this suit when it finally went to trial.” (p. 9)

“The Court held that [Defendant’s proposed evidence was] totally unreliable evidence…. For this and other reasons articulated at length in this Court’s opinion, the Court excluded Defendants’ expert opinion because it was based on a deeply flawed methodology and, importantly, failed to address critically relevant data points….” (p.9)

“As the Court explained at great length during the pretrial conference, this is not an acceptable cross-examination tactic….” (p.10)

“Defendants misstate the record as to what the Court did and did not admit as evidence at trial.” (p.10)

“Defendants’ argument about the Court’s refusal to allow the testimony and associated exhibits…is entirely without merit.” (p. 11)

“[Defendant Witness] Seifert’s eleventh hour disclosure, in a case which has been litigated for over six years, is precisely the sort of surprise or ambush which the rules of discovery are meant to prevent.” (p.11)

Defendant’s argument “strains reason.” (p. 13)

“As the Court repeatedly noted, the parties agreed that November 30, 2006 was the effective date of the Contract…. Any contention to the contrary is simply factually incorrect.” (p. 15)

“Defendants’ assertions about the admissibility of Chan’s testimony are also plainly inaccurate.” (p.15)

“Again, Defendants’ argument borders on disingenuous.” (p.17)

“[T]he cases Defendants cite in support of their position are inapposite and appear to discredit their argument.” (p. 18)

“Defendants misquote this portion of the instructions in their briefing.” (p. 20)

“Defendants’ mistakes and oversights are not grounds for a new trial.” (p. 21)

“Defendants’ assertion that Plaintiff’s statements were incorrect is based on [a] tortured mischaracterization….” (p. 23)

So, circling back to the beginning of this post. This is a public, verbal flogging. Are “bench slaps” like this meaningful data for assessing the quality of a lawyer’s or a law firm’s advocacy? Or are there too many qualifications, caveats, and complications (such as our inability to distill whether the criticism is fair and, if so, who bears responsibility?)?

Is purported “evidence” of legal performance (or lack thereof) more prejudicial than probative of the lawyering in the case?

It is certainly a lot more reliable than so much other so-called information on the web (like dubious self-promotion or “pay-to-play” industry recognition).

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