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
golf course … sorry
I always thought a redneck was someone whose neck had been sunburned because they worked in the fields as farmers etc. My father told me that might be true but if I looked closely there were a lot of sunburned necks on the golf coarse.
Woosty’s, I guess I fit in the unlisted but prevalent #3 definition. “rednecks” are any class and any political bent and any religious persuasion. TV and Media only show the stereotypical first two definitions. So I am never surprised that people from other areas believe that all southerners are “rednecks” and are always a mixture of the first two definitions. I am a liberal Democrat, progressive in my views, And tho raised Missionary Baptist I am mostly agnostic or as I like to call it “Dishwater Baptist” Most Rednecks I know are conservative and protestant of some sort, but there are many that are liberal or Independent politically. (And that number seems to be growing. NC was a blue state in the 2008 election)
“or do you always have to have your own way no matter what the cost or whoever gets hurt? Do you hurt people because they are different? do you disrespect and waste other peoples personal property and blame it on priveledge?????…or cover up your disrespect and violence and fear with more violence….oppression….and priveledge????”
I like having my own way but never at the cost of anyone getting hurt. (Even hurt emotionally) So I usually don’t push to have my own way. I never want to hurt anyone because they are different. I respect peoples property because I know what it takes to earn enough to have property and I wouldn’t want anyone to disrespect me or my efforts to have what I have. Since I don’t have disrespect of others I don’t have to cover up or *shudder* use violence. I have a friend of over 40 years. She is arch conservative and Church of God. I disagree with both her politics and religious views, but I respect her right to have wrong views all day long. She and I can argue politics and religion and never become mean or ugly in our debates. (We both had Southern Ladies for mothers and rule Number One is that “You NEVER make another person uncomfortable or embarrassed”)
Most people never know anything other than what is shown on TV about the south. We do have Ignorance Racism Poverty Crime and Seriously Disturbed People(Teapartiers). But is that really any different than New York? California? Wisconsin? Idaho? or any other part of the country. The media always finds the uglier aspects and reports on that. Southerners are the Butt of the jokes so often. 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)
LOL I sound like the tourism board.
I’ve lived up north (suburbs of Pittsburgh). Out west. (Nebraska) Deep South (Louisiana) and other areas. Each place has had its own flavor. Some of the flavors are nasty. Some of the flavors are delightful. But If given the chance each place I’ve ever lived had some very nice people and cultures. It just takes a while to understand “em.
Jo and Woosty,
I think you are both correct. the dictionary definitions are correct but I think common usage has left them behind to have a much more vague meaning. The term redneck is used so often to describe so many different catagories of people, ex. Northerners who live in rural or agricultural areas; or Northern City dwellers who are white and poor or dirty or uneducated, that it’s really very hard to pin it to one definition.
I have to admit that i had never considered the validity of the stereotype before. I assumed that the incidence of incest among backwoods appilatians was exagerated for the purpose of humor but i admit I would have expected it to be higher than the general population. Just another gulible victim of the propaganda machine I guess. I’m a little embarrassed too.
I will say that I have known several people who were the result of incestuous relations and though they were not what we would term normal, i found that most have been simple, kind, hospitable, people and I have often wondered if many of them are not here to escape the incestious families that produced them. I know of several groups of these folks who are not related to each other but chose to leave their homes and travel here together.
They do stand out in many cases. You could have six families from the same mountain area living in your neighborhood but these poor people are the only ones everybody knows about. And stares at. perhaps it is more difficult to stay in these more isolated mountain communities and escape such behaviors than if you live in a larger, more populated area. I don’t know. perhaps it is all an illusion based on them just being different and standing out.Perhaps I am just still suffering the effects of my recently exposed stereotype.
Hey, just in case you ever think I’m making fun of you, i wanted to tell you both that I have been reading this blog for awhile now and I always look forward to the comments you two make. There always interesting, entertaining and thought provoking. So Woosty, stay a cat and Jo you be………whatever you want to. It’s a free country. Right? or so we keep telling ourselves.
More lawyers need to be arrested for contempt of the legal system.
That a girl Woosty. You be a cat baby.
I went to college. I ride in the “Bitch seat” on a Harley. Hubby and I fish from a boat, and boy do I have some fishin’ stories. I have a mixed disc that has Nessum Dorma (Pavarotti) right next to “Dancin’ on the Boulevard” (Alabama). I can Shag (a dance) with the best of ‘em” And I am proud to be a “Redneck”
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cool beans! we have a lot in common.
just one clarification please……
red·neck (rdnk)-(freedictionary)
n. Offensive Slang
1. Used as a disparaging term for a member of the white rural laboring class, especially in the southern United States.
2. A white person regarded as having a provincial, conservative, often bigoted attitude.
are you a redneck of the #1 persuasion?….or are you #2…..?
just wondering….I don’t even ave a problem with a #2 conservative….it’s just…..can you respect others positions? can you work well WITH????
or do you always have to have your own way no matter what the cost or whoever gets hurt? Do you hurt people because they are different? do you disrespect and waste other peoples personal property and blame it on priveledge?????…or cover up your disrespect and violence and fear with more violence….oppression….and priveledge????
just wondering……
Well hell! Its well known that every southerner is dirt ignorant, The spawn of an inbred incestuous relationship. Why my own parents were first, second, and third cousins to each other as well as brother and sister, aunt and uncle, and my pop was my grandfather too. Wait… isn’t that just true for the hillbillies? The nonhillbilly sort are all redneck racist goobers! Right? Anyone surprised that to protect themselves from liability they holler “inbreeding” in the south. After all anything needed to be known about the south is to be learned from sitcoms and movies where the stereotypes abound, ABOUND!!! What kinda word is that for a white trash ignorant rebel. Oh and all southerners are obsessed with the “Wah ob Noathan Aggreshen” Good grief!!!
Rich
1, October 10, 2011 at 9:36 am
Foxworthy is a faux redneck whose daddy had a white collar job at IBM.
Rich,
“Redneck” to any southerner has two different meanings. One is a mean racist troublemaker. The other is a good ole’ boy. A good ole boy may have a blue collar job or he may have a white collar job. How he makes his living and the amount of money he has is irrelevant. He drives a truck, (and usually has a car of some sort in the garage). He may have a motorcycle. (Usually a Harley or Honda Goldwing) He probably has a boat or a friend who does. He loves country music. (As well as rock, {heavy metal, classic, soft} possibly classical hip-hop,Reggae,and here he loves Beach Music)
He may have a GED, a high school diploma, or a degree. Here he may have gone to State, UNC, or Duke. or a community college or The School of Hard Knocks.
So the fact that Jeff Foxworthy was the son of an IBM employee of the white collar sort does not mean he and his whole family were not “Rednecks”
I went to college. I ride in the “Bitch seat” on a Harley. Hubby and I fish from a boat, and boy do I have some fishin’ stories. I have a mixed disc that has Nessum Dorma (Pavarotti) right next to “Dancin’ on the Boulevard” (Alabama). I can Shag (a dance) with the best of ’em” And I am proud to be a “Redneck”
(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.
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that sounds pretty broad.
and so what…if all the proof to the contrary can be presented to a court and it be ignored for whatever nifty-shifty verbalized drecht ….the fact is our courts are apparently working for the very law firms and corporations that are doing what they are supposedly protecting us from, making the courts nothing more than expensive maurauders.
The question is whether the ethics complaint was filed in good faith — if it was, then Prof. Huber’s efforts are already successful regardless of outcome. The big boys at the firm aren’t going to take kindly to whoever is responsible for the public ridicule. Forget about making partner — or even a job next week.
Close case. Don’t let it get too close though. It could breed bad results. 😉
This firm is multinational in scope and seems, from a quick read of its website, a big business handmaiden. A firm this large and possessed of the level of expertise they boast could have easily done enough research to check out the truth or falsity of such a statement. If they didn’t then it’s hardly a matter of free speech, it’s a matter of playing on prejudice and falsehood to secure well paying business clients.
The bar needs to evaluate such statements IMO and take action as appropriate. It’s false advertising if they don’t have the proof or didn’t seek to confirm the truth of their statement. Surely with 30 years of specialized litigation regarding contaminated sites they have the proof if it exists.
From their website:
“Environmental & Toxic Tort Litigation
Crowell & Moring lawyers are nationally recognized in the defense of clients under every major environmental law and in class-action and community-wide toxic tort litigation.
For more than twenty years, members of our team have defended “neighborhood” cases involving alleged exposures to TCE and other chlorinated solvents, vinyl chloride, PCBs, dioxins, benzene, creosote, beryllium, pesticides, and mixed chemical releases at contaminated sites. These cases have raised the whole gamut of medical claims, such as:
cancer
endocrine disruption
birth defects and developmental disorders
learning disabilities
immune dysfunction
neurological injury
pulmonary disease
multiple chemical sensitivities
We have also addressed claims for medical monitoring, emotional distress, diminished property values, and lost profits, and have defended against cutting-edge liability theories, including those related to climate change. Our lawyers have won major cases before juries. We have successfully resolved others through dispositive motions, Daubert motions, mediation, arbitration, and summary jury trial.
Our environmental defense team has represented clients at contaminated sites for nearly three decades,…”
“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.’”
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That’s like faulting the Titanic inquiry commission for not considering the dress of the maitre d’s.
My family worked in the coal mines and coke yards, too.* I don’t think lying (and demeaning an entire group of people in the process) simply to obtain business from the coal industry is free speech anymore than lying about climate change to continue obscene profitability is. Fraud is fraud and whether emanating from the board room, think tank press room, or office of the managing law partner is legal contraband and not entitled to Constitutional protection. It should be subject to this ethics complaint to determine exactly what was in the mind of its publisher, as well as any local ordinance against noise pollution. Go Huber.
* My great uncle testified before Congress on the Black Lung scandal years ago.
I wonder if this will lead to more inbreeding…
Driven to sing in the karaoke cab
Cabbie in Virginia installs karaoke in cab….
http://www.washingtonpost.com/lifestyle/style/driven-to-sing-in-the-karaoke-cab/2011/08/02/gIQA0sSJ3I_story.html
I want to see a defense attorney make this argument in front of a jury of local citizens. I know my neighbors, and have a feeling this line of reasoning will not sit well with them.
This kind of posturing has the potential to backfire.
OMG! Foxworthy is a fake who only takes advantage of the prejudices of “real ‘merikans”? Who would have guessed! Actually the bit about his dad is interesting, thanks.
I guess a lawyers job is to protect his client in any way possible so I don’t exactly blame them for trying. On the other hand the judge should ask them for extensive research that would support their ridiculous claim.
Rich,
And I suppose that if you can’t learn humor with a Daddy work for IBM….then you will be lost in this world…
Foxworthy is a faux redneck whose daddy had a white collar job at IBM. I’m not quite sure that an ethics complaint is going to go far on the basis of an inflammatory, poorly reasoned argument, but it’s a great way to turn public opinion a way from major polluters.
Any truth to it in the least….and it won’t stand…or at least I do not think…
But WWJ(F)S?
What Would Jeff (Foxworthy) Say?
It does cut down on food costs…You can go to a family reunion and have 4 generations….and yes…only two of you are there….