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?
Source: West Virginia Gazette as first seen on ABA Journal
33 thoughts on “Law Professor Files Ethics Complaint Against Crowell & Moring Lawyers For Inbreeding Remark”
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“There is nothing wrong with the question on whether inbreeding is a factor or not. It is a valid question. Whether some find it insulting or not should not have any bearing at all.”
Oh, absolutely not my science-infused friend. It’s all neutral inquiry, right? Just as I should be able to ask your mother upon our acquaintance whether or not you are the product of the union between your parents or whether you are the product of an adulterous relationship. Neutral inquiry, of course.
There is nothing wrong with the question on whether inbreeding is a factor or not. It is a valid question. Whether some find it insulting or not should not have any bearing at all.
I imagine that many mining towns can be relatively small with families living in the area for generations and generations and generations. Doesn’t take many before inbreeding to one degree or another exists.
I am not talking about marrying your sister or even cousin, but marrying someone who is your 5th cousin and then that child marrying their 3rd cousin’s niece and the child of that marriage… well you get he idea. It isn’t that they are ignorant or deliberately inbreeding it is just that the genes will get spread around.
This is true with any small population given enough time if new blood isn’t introduced in sufficient amounts. The Amish are an example of this. There have been greater numbers of birth issues in the Amish population that have been attributed to the lack of diverse enough marital partners.
shit shit shit
i want to find an fop lodge and swap out all their jukebox music with gospel.
some sunsofbitches can’t stand that people might actually enjoy themselves.
i’d better shut up before i write something that’ll come back and bite me
(My parents were 1st cousins, she from NYC, he from Phila, Pa. I suspect that my birth defects are just happenstance and not a direct consequence of their consanguinity, or what I just refer to as ‘the incest’. And btw, with no siblings for mother and only one for father and 3 of the 4 grandparents dead before I arrived, yes, Anon Yours, our family reunions are very small and cheap; in fact, it is only me, since all those mentioned are now deceased.)
Forgot the link. Read it and weep.
pete, there are now so many deputy sheriffs and highway patrol on Deals Gap there is hardly room to maneuver. They hand out tickets for EVERYTHING. The Tail of the Dragon is now the tail of the bunny rabbit.
Have you read the Deal”s Gap Dragon Times?
The mountains are lovely during a hot summer and the Blue Ridge Parkway is so much fun on a bike (Both motorcycles and peddle bikes
i’m partial to the tail of the dragon myself. though the cherohala skyway is a good ride too.
Woosty’s, I’ve never been to Boston or New England. I’d love to see it preferably in fall. But I have a dear friend from Maine. LOL now there’s an accent. Kinda French kinda New England and a lot of good dry humor in it.
I lived In Suburbs of Pittsburgh for about 10 years. And aside from NC it is my favorite place. We would take my daughter on summer evenings to watch the movies on the large lawn beside Carnegie Mellon. Watch the Pirates play at Three Rivers. They never won a game that I went to. But the Summer after we moved back to NC they went to the Play Offs But failed to make it to the world series.
The different types of food MMMMMMMM . I had never had Greek before Pittsburgh. Now I cant find a decent Gyro anywhere. lol
Its a lovely place with wonderful people.
Blouise1, October 10, 2011 at 2:09 pm
golf course … sorry
But if you ever have the opportunity come on down and visit a spell. The Outer Banks are a lovely vacation spot. The mountains are lovely during a hot summer and the Blue Ridge Parkway is so much fun on a bike (Both motorcycles and peddle bikes)
I am a Bostonian currently living in Florida. My parents were from Pittsburgh and Rhode Island. As a nurse I practiced in North Carolina and Virginia. It was my first real ‘taste’ of the South and I loved it. The natives laughed at me on my first day of the job when I asked about the termite problem. (I had seen lots of toppled Kudzu covered trees and red soil on my way down from New England and hadn’t heard about the recent tornado….). It took a good 6 months before the ‘natives’ did anything but dump the hardest nastiest patients on me and be what I call ‘Nasty Polite’. Later i learned that was how many of them treated each other all the time. The others had been ‘testing’ me and I earned thier respect. I came to love working there and many of the people. I loved the Blue Ridge Parkway and the NC countryside. Like Massachusettes it has Mtns on one border and the Atlantic on the other….beautiful! I absolutely loved the cooking and the Moravian settlements made the very best Gingersnaps and did Christmas well. I so regret not having learned to shag while I was there. I did begin my flying lessons though! (unfortunately cut short when the contract ended….:( My personal beliefs (i do hope)transcend the ‘labels’ …and anyway I haven’t the ‘correct’ understanding of most labels. I would love to do a study on what is the ‘general’ understanding of a set of defned labels …
I know there are some horridly ruff people at any point in any spectrum of socio-economic and political and racial class and it is a rare and blessed event when I have met those who can pull thier own strings when it comes to ‘group think’ and ‘expected behaviors’ outside of thier comfort zones and ‘class’. (You would be surprised how many in the so called ‘Upper Class” have absolutely no class….) Especially where it involves recognizing and respecting the civil and property rights of others. Apparently that is the biggest challenge and need in our society today. How do we keep the acceptable status quo from becoming about being hurtful, or hard, or self-serving at the expense of others….because I have been in the ‘path’ of the big and powerful and it is not a safe or pleasant place to be these days…..
Now wait a minute y’all, the contemporary meaning of ‘Redneck’ is the bastardization of a very honorable term attributed as first widely used by union miners/sympathisers starting around the turn of the last century. During the organizing effort in Logan County West Virginia and the Battle for Blair Mountain the hired thugs, the strike breakers, wore white kerchiefs so they would not be shot by their own. The miners wore red. For a considerable period of time a redneck was shorthand for a union miner/sympathiser, a stand-up guy.
I suspect that given that definition there are a number of proud rednecks in the Turleyblawg visitors.
If you haven’t seen the movie “Matewan” about the events leading up to the actual battle – the Matewan massacre – it’s worth watching.
“The Battle of Blair Mountain was one of the largest civil uprisings in United States history and the largest armed insurrection since the American Civil War. For five days in late August and early September 1921, in Logan County, West Virginia, between 10,000 and 15,000 coal miners confronted an army of police and strikebreakers backed by coal operators during an attempt by the miners to unionize the southwestern West Virginia coalfields. The battle ended after approximately one million rounds were fired, and the United States Army intervened by presidential order.”
Dang it. I completely forgot the golfin’ rednecks LOL. Did I mention in my tourism report that we have Pinehurst. Thanks Blouise.
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