(The Return of) Ignatz, by Sam Heldman

Tuesday, September 03, 2002

legal ethics and real ethics Ernie the Attorney has a thoughtful post on procedural gamesmanship, legal ethics, and real life ethics. While I agree with his major theme -- which is, if I'm reading him correctly, roughly that playing "by the rules" isn't always the same as contributing to a fair system of justice -- the two examples he picks are close enough to my own life that I think that I can explain some details about them, which may in turn shed some light on the larger questions by example.

The first thing Ernie mentions is the marked pattern, in the U.S. District Court for the Northern District of Alabama, of defendants in large employment-discrimination cases hiring a certain law firm because one of its partners is the nephew of Chief Judge U.W. Clemon, who is perceived by company lawyers as the most liberal judge in the District. In that way, they get Judge Clemon off their cases. (As Ernie notes, there was a big story about this in the Wall Street Journal the other day, but it was while I was off on a boondoggle in Las Vegas so I didn't blog about it). To lay my cards on the table, I admire Judge Clemon immensely and I like him immensely as a person. There is absolutely no reason for anyone to suggest that he's anything but fair. (The fact that his rulings may, in some patterns, tend to differ from those of some Republican appointees does not prove otherwise, unless you've got a peculiarly employer-centric definition of the word "fair".)

Here's what I can add to what Ernie said about it, and this is what makes all the difference, I think: that manouevering to recuse Judge Clemon by hiring his nephew's firm is not lawful, if that's the motivation for hiring that firm. And that's why, last week, another U.S. District Judge from the District stepped in to stop it. (also here).

The other topic that Ernie mentions is the inclusion of "non-diverse defendants" (i.e., defendants who live in the same state as the plaintiff) so as to keep a case in state rather than federal court. Plaintiffs' lawyers often do this, when they believe that the case will have more success in state court, and I admit that I've made something of a sub-specialty in writing briefs in support of this tool. So when Ernie points out that this is a kind of gamesmanship, my mind eagerly runs to the justifications and to the things that make it different from the manouevering to get rid of Judge Clemon.

And here's the distinction: the Supreme Court has said, for decades, that the motivation of the plaintiffs' lawyers for including those non-diverse defendants is irrelevant, and that it's OK for plaintiffs' lawyers to do whatever they can do to keep the case in state court if they want. In the recusal situation, the law says that motivation matters; in the diversity-jurisdiction situation, the law says that motivation doesn't matter.

Why should motivation matter in the one case and not in the other? I think that one good reason is that, in trying to stay in state court and avoid removal to federal court, the plaintiff's lawyer is not saying or otherwise indicating to the world that he or she believes that a certain judge or judges won't provide a fair shake. Instead, the tactic is -- and should be seen as -- motivated more by the differences in procedural law that will govern in state or federal court. If (say) the state courts have a more class-friendly set of precedents as to whether class actions should be certified -- or a set of precedents about summary judgment that tends to mean that more cases get to trial -- or a jury pool drawn from one county rather than several -- this is a perfectly reputable reason to prefer state court. So when the defense lawyer says "that darn plaintiff's lawyer was trying to avoid federal court," the proper answer is "so what? that doesn't amount to a personal attack on the dignity of the federal court, and doesn't detract from public trust in the judicial system." But when the defense lawyer tries to make sure that the company's case is heard by one federal judge rather than another -- which is to say, in the Northern District of Alabama, almost-certainly a white Republican appointee rather than a Black Democratic appointee -- then this does amount to, or is at least publicly perceived as, an attack on a jurist's fairness. That's why motivation matters in the one context, but not the other.

Does this mean that I think that playing by the rules and keeping a lawful motivation in your heart is, in and of itself, sufficient to make legal practice a morally sound endeavor? Not quite, not always. But the law (which is to say, lawyers and other law-makers) does better in formulating truly just rules, than most non-lawyers give us credit for.

posted by sam 9:33 PM 0 comments


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