An assistant law professor Jason Huber of the Charlotte School of Law in North Carolina has filed an ethics complaint against four Crowell & Moring lawyers in a rather novel case. He accuses the lawyers of suggesting that inbreeding could be responsible for Appalachian birth defects found in a study of mountaintop mining.
The complaint accuses attorneys Clifford J. Zatz, William L. Anderson, Kirsten L. Nathanson, and Monica M. Welt of Crowell & Moring, LLP, of violating Rule of Professional Conduct 7.1(a) and 8.4(c) by running an advertisement on the firm’s website containing a “materially misleading statement in an attempt to solicit business from the coal mining industry.” Huber insists “the Authors attempt to attribute the higher incidence of birth defects to inbreeding by stating, ‘the study failed to account for consanquinity [sic], one of the most prominent sources of birth defects.'”
Huber says that pitch was based on an Appalachian stereotype that has been scientifically disproven and that such research “has conclusively established that Appalachians are no more prone to inbreeding than any other population, such as white-collar professionals or for that matter, attorneys that work at Crowell & Moring.”
The study contains the following abstract:
Birth defects are examined in mountaintop coal mining areas compared to other coal mining areas and non-mining areas of central Appalachia. The study hypothesis is that higher birth-defect rates are present in mountaintop mining areas. National Center for Health Statistics natality files were used to analyze 1996–2003 live births in four Central Appalachian states (N=1,889,071). Poisson regression models that control for covariates compare birth defect prevalence rates associated with maternal residence in county mining type: mountaintop mining areas, other mining areas, or non-mining areas. The prevalence rate ratio (PRR) for any birth defect was significantly higher in mountaintop mining areas compared to non-mining areas (PRR=1.26, 95% CI=1.21, 1.32), after controlling for covariates. Rates were significantly higher in mountaintop mining areas for six of seven types of defects: circulatory/respiratory, central nervous system, musculoskeletal, gastrointestinal, urogenital, and ‘other’. There was evidence that mountaintop mining effects became more pronounced in the latter years (2000–2003) versus earlier years (1996–1999.) Spatial correlation between mountaintop mining and birth defects was also present, suggesting effects of mountaintop mining in a focal county on birth defects in neighboring counties. Elevated birth defect rates are partly a function of socioeconomic disadvantage, but remain elevated after controlling for those risks. Both socioeconomic and environmental influences in mountaintop mining areas may be contributing factors.
In the firm’s pitch (below), they challenge the findings and tie the analysis directly to the firm’s practice.
This type of ethic’s complaint tends to raise difficult free speech issues for a bar. Rule 1.7 (a) states:
Rule 7.1—Communications Concerning a Lawyer’s Services
This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the Amended Rules took effect.
(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.
The question for the bar is whether this statement is clearly false or falls within the scope of reasoned debate. Lawyers are entitled to free speech protections, even if their views are not widely shared. This creates a relatively low standard to satisfy in arguing that, while perhaps offensive or even widely discounted, a view is still protected as part of a debate in the area. One question is whether these lawyers could make such an argument in court filings without being sanctioned.
Rule 8.4(c) states that “it is professional misconduct for a lawyer to: . . . Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Once again, the sanction would turn on the content of the speech and the question of whether the view is entirely without basis or plausibility.
As the grandson of an Ohio coal miner, I share the view of this posting by the law firm. However, I tend to err on the side of free speech in such cases. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that lawyer advertising was a form of protected free speech — though that was a case looking at a ban on advertising.
Yet, Professor Huber is arguing that this is neither a plausible or debatable point. The complaint weakens a bit on the statements like the following: “While it is true that the Study did not account for consanguinity, this does not mean that the Study’s findings are any less valid.” That is certainly true, though the bar could find the fact that it was not directly addressed in the study sufficient basis to treat this as simply a contested fact in an area of often heated litigation.
The question is whether the bar wants to hold the type of expert hearing that would test the basis for such a statement or whether it feels such an inquiry would put the bar on a slippery slope in having to evaluate the basis for all such statements by advocates.
What do you think?