Last week we discussed a federal court’s holding that mere fear of injury was not an actionable tort. In the run-up to the description of the case, we reminisced about the diet drug litigation, where many plaintiffs alleged heart valve injuries that had not yet manifested any physical symptoms. Those plaintiffs claimed they feared sudden death or open-heart surgery.  Would those scary things happen?  When?  Those cases produced wildly inconsistent results.  On essentially the same facts, some cases were dismissed by courts, some made it to a jury that would award zero or minimal damages (perhaps the cost of antibiotics for dental visits) and we can think of one trial that culminated in two verdicts of over $100 million because the Philadelphia trial judge permitted the plaintiff lawyers to make the case about the company’s funding of studies (where the studies were entirely legitimate and the company’s connection was disclosed, mind you) rather than about the particular plaintiff.  Not to put too fine point on it, but the diet drug litigation was not one of the glorious episodes in American jurisprudential history.

 

That is an understatement. It turns out that there were plenty of plaintiffs who did not even have actual heart valve injury.  The diet drug mass tort mostly settled, under threat of class certification (something that, thankfully, doesn’t happen anymore).  There were opt-outs, to be sure, but lots of plaintiffs signed onto a settlement process where plaintiffs’ payments depended on their placement on a grid, with extent of injury being the key factor.  How to determine extent of injury?  Ah, there’s the rub.  It turns out that some doctors working with/for some plaintiff lawyers sold their integrity and purposely misinterpreted echocardiograms to call valvular regurgitation moderate or severe when it was actually mild or did not even exist at all. That was fraud, it was ultimately found out, and medical licenses were lost.  Pretty bad, right?

 

Wouldn’t you know it that the day after our post last week the Sixth Circuit issued a decision, McGirr v. Rehme, ___ F.3d ___, No. 17-3519, 2018 WL 2437184 (6th Cir. May 31, 2018), that reminded us of another fraud associated with the diet drug mass tort litigation – this time involving the legal profession in a very ugly way.  The case was an effort by diet drug plaintiffs to recover money from a plaintiff lawyer who had stiffed them.  Their entitlement to the money had already been established.  The problem was collecting on the judgment, because the plaintiff lawyer was doing a nifty job of moving his assets around.  Because any further characterization by us will likely elicit accusations of schadenfreude on our part, we will rely on direct quotes from the Sixth Circuit’s opinion as much as possible.

 

Here is how the opinion begins:  “For years, plaintiffs’ attorney Stanley Chesley appears to have been orchestrating a high-stakes shell game in an effort to escape a long overdue multi-million dollar judgment. In the process, he has defrauded hundreds of judgment creditors, many of whom are plaintiffs here.”  2018 WL 2437184, at *1.  And we’re off.

 

What had happened? A diet drug settlement in 2001 gave the plaintiff lawyers $200 million, with the defendant leaving it to the plaintiff lawyers “to divvy up the settlement among the class members as they saw fit.  Trusting the attorneys with such a task proved to be a mistake.” Id. at *2.

 

Another understatement. Plaintiff lawyers told their clients they had received a settlement in a certain amount, but then reported a significantly higher amount to the defendant, and the plaintiff “lawyers kept the difference.” Id. In the end, clients received a total of $75 million when they should have received $134 million. Id. Easy money, but not an especially clever scheme.  Indeed, the Kentucky Bar authorities smelled something foul. To cover their tracks, the plaintiff lawyers found a compliant Kentucky judge who retroactively altered the terms of the fee deal and then sealed the record.  That judge also was set up as a director of a charitable organization created by the new fee deal.  That judge pocketed over $48,000 from the arrangement.  That judge has since been “permanently disbarred.” Id. at *3.

 

So far, clients were cheated and the judiciary was corrupted. But wait, there’s more.

 

The plaintiffs won a lawsuit in Kentucky and got a judgment in 2007 against their lawyers (and Chesley as a co-conspirator) in the amount of $42 million. Id. In 2011, the Kentucky Bar held that Chesley violated “eight separate rules of professional conduct and recommended his permanent disbarment” and the Kentucky Supreme Court upheld that decision.    Id. (footnote omitted). “Chesley’s time as an attorney in Kentucky had come to an end.” Id. Chesley’s home jurisdiction of Ohio “would likely impose reciprocal discipline” but it never got the chance because Chesley retired from the practice of law in 2013. Id.  He then executed a “wind-up” agreement with his law firm that “served as a vessel through which Chesley could move his assets.” Id.

 

The Kentucky plaintiffs, looking to execute on their judgment, “came knocking,” but Chesley found a helpful judge in Ohio who kept entering “unusual” orders that frustrated the execution efforts of the Kentucky plaintiffs. Id. at *3-4.  “This kicked off a jurisdictional turf war on either side of the Ohio River.” Id. at *4.  In 2015, the Kentucky judge ordered Chesley to cross the river and justify his noncompliance with the court’s order, but Chesley did not show, so an arrest warrant was issued.  No matter, because that helpful Ohio judge granted an injunction “preventing Chesley’s arrest.” Id.

 

This all happened in the United States of America.

 

Speaking of the United States, the plaintiffs got the bright idea to turn to the federal courts. They brought an action in S.D. Ohio “to get an order recognizing Chesley’s recent transfer transfers (including the wind-up agreement) as fraudulent and to unwind those transfers.” Id. The plaintiffs asked the Ohio federal court to enter “a preliminary injunction that would freeze Chesley’s assets to prevent him from moving those assets outside the court’s jurisdictional reach.” Id. at *5.  Before the court could enter any injunction, the assets moved yet again, via a maneuver in Ohio state probate court. The district court found the new transfer malodorous and issued a TRO, later converted to the preliminary injunction sought by the plaintiffs. Id. (This must have all seemed awkward to the court, as Chesley’s wife was a federal judge in the same courthouse.  Yikes.) The Ohio Supreme Court “validated the district court’s suspicions” and found the asset transfer to be fraudulent and an abuse of process. Id.

 

Meanwhile, the preliminary injunction was in place, and went up on appeal to the Sixth Circuit.   Because of the asset transfers, Chesley was not a party to the appeal.  This case was about following the money.  After reciting this sordid story, the Sixth Circuit applied the standard factors for assessing a preliminary injunction: (1) the movant’s likelihood of success on the merits, (2) whether the moving would suffer permanent harm absent an injunction, (3) whether the injunction would harm third parties, and (4) whether the injunction would serve the public interest. Id.

 

This was not a hard case. The Sixth Circuit concluded that the questionable asset transfer checked “virtually all of the … boxes” for the Ohio statute on fraudulent conveyances. Id. at *6.  The Ohio Supreme Court’s decision finding a transfer fraudulent made an easy decision even easier regarding the merits of the plaintiff’s action.  This blog is not about fraudulent conveyance law, so let’s leave it at this:  there was ample evidence of transferring assets to an insider, of Chesley’s retention of actual control of the money, of concealment, and of convenient timing.  Chesley and the other defendants offered explanations, of course.  But the Sixth Circuit kept its eyes on the big picture: “In the mid-2000s, after helping to steal millions of dollars from the Guard case plaintiffs, Chesley felt the walls closing in on him.  In 2005, his ex-clients used him.  In 2006, a Kentucky court found his accomplices liable.  In 2007, the same court entered a $42 million judgment against them.  All the while, the Kentucky Bar was investigating him.  Shortly after, Chesley began to move the majority of his assets around. Id. at *7-8.  This evidence suggests that Chesley has been carefully keeping his money just out of the plaintiffs’ reach, in the event that he was also found liable for the $42 million he had stolen.” Id. at *8.

 

As we said, this was an easy case.

 

Irreparable harm was obvious. The continuing shell game, if successful, would keep the money out of the plaintiffs’ hands.  The probate action “was just another move in that game.” Id..  Only the injunction could put an end to the game.  By contrast, Chesley could not demonstrate actual harm to other creditors. Id.  But it is the public interest prong where the Sixth Circuit opinion really sings.  The litigation “has been lumbering through federal and state courts for two decades.  In its wake, officers of the court have been disbarred and imprisoned; Kentucky and Ohio state courts have been pitted against each other; and Chesley has forced the federal courts to use judicial resources to try to stop it all.  There is a fundamental public interest in ending such abuse of the judicial system, in conserving judicial resources, and in preventing further confusion and disruption in this litigation.” Id. at *9.

 

The Sixth Circuit affirmed the district court’s entry of a preliminary injunction.

 

What are we to make of this concatenation of depressing facts? One could mutter a platitude about how the case offers a cautionary tale.  Fine. What is the caution?  Don’t cheat clients?  Don’t corrupt judges?  Any lawyer who really needs to hear those things is probably too far gone anyway.  No, the true caution is this: mass torts offer opportunities for massive frauds.  That is so not only because the large amounts of money are tempting and the large number of plaintiffs permits gamesmanship, but also because courts too often treat mass torts as settlements waiting to happen.  The litigation becomes a sausage grinder. The system grinds away, doing everything possible to encourage, or force, settlement.  But some cases shouldn’t be settled.  And the assumption that the plaintiff side is a good-guy David while the defendant side is a greedy malefactor Goliath is ridiculous and unfair.

 

It would be wrong to write off this case as an outlier. First, you have certainly heard of other mass tort settlement schemes that ended up being wracked with fraud.  Just in the past week we’ve read about allegations of questionable plaintiff-side conduct in both the NFL concussion and State Street foreign exchange mass/class litigations.  Second, what about the frauds you haven’t heard about?  Once a mass tort becomes a settlement waiting to happen, it becomes a fraud waiting to happen.  Rather than await the next awful morality tale that shames the legal profession and the judiciary, could we perhaps step back and check some of the assumptions plaguing the system?

This guest post by Andrew C. Bernasconi, of Counsel at Reed Smith, is about a hopeful development in a False Claims Act case we’ve already blogged about once.  The previous post queried, what happens when a FCA relator, blinded by the dollar signs in his/her eyes, resorts to questionable means to gin up “facts” that substitute for the personal knowledge that the statute assumes the relator has, but in this case did not?

This time, the chickens came home to roost.  Read and enjoy.

As always, our guest bloggers are 100% responsible for their insights – entitled to all the credit (and any blame – maybe for the asides about the greatest Super Bowl ever played).

*********

“I’m sure you all share my view when I say, ‘Go, Patriots.’”

These words from Boston-based U.S. Judge Dennis Saylor IV of the District of Massachusetts, when closing out a motion to dismiss hearing just a few weeks prior to Super Bowl 51, undoubtedly intended to reference the mighty New England Patriots and their impending appearance in what would become a historic win over the outmatched Atlanta Falcons.

Judge Saylor’s recent decision dismissing a qui tam False Claims Act (FCA) case, based on what he determined were deceit and ethical violations by plaintiff’s counsel, calls to mind the words of a different kind of patriot, Chief Justice John Marshall:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

McCulloch v. Maryland 17 U.S. 316, 421 (1819) (interpreting the Necessary and Proper Clause).  While the context of Judge Saylor’s recent decision differs dramatically from the issues considered by Justice Marshall in 1819, the focus of both on just ends and means provides a common theme.

We first blogged back in November about the case of U.S. ex rel Leysock v. Forest Laboratories LLC, where we explained that the defendant filed a motion to dismiss the qui tam relator’s False Claims Act allegations that were premised on false claims tied to alleged off-label marketing of a drug indicated to treat Alzheimer’s Disease.  Although the court denied a prior motion to dismiss relator’s complaint, finding that it contained sufficient particularity to satisfy Rule 9(b)’s heightened pleading standard, the defendant took the unusual step of filing a subsequent motion to dismiss while discovery was ongoing.  In the subsequent motion to dismiss, the defendant relied on discovery showing that relator’s counsel had hired a physician as an “investigator” to persuade other unwitting physicians, under the guise of conducting a “research study,” to provide confidential patient medical records for what (unknown to these other physicians) turned out to be for litigation purposes.  Relator’s counsel, of course, vigorously opposed the motion and contended that they had not engaged in any wrongdoing.

On April 28, 2017, Judge Saylor issued his opinion (copy here), in which he granted the defendant’s motion and dismissed the relator’s complaint. Leysock, No. 12-11354-FDS, slip op, (D. Mass. Apr. 28, 2017).  In a well-reasoned decision, Judge Saylor found there was “no dispute” that relator’s counsel had engaged in a scheme that involved “an elaborate series of falsehoods, misrepresentation, and deceptive conduct,” including:  (1) designing an investigation to obtain confidential information from physicians under the guise of a medical research study and (2) employing a physician as their agent to tell other physicians that records supplied by physicians to facilitate the “study” would remain confidential.  Slip op. at 14.

According to the court, this conduct violated ethical rules prohibiting knowing false statements of material fact made to third persons (Mass. R. Prof. Conduct 4.1(a)), and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (Mass. R. Prof. Conduct 8.4(c)).  Slip op. at 15.  While acknowledging limited exceptions to these rules, where counsel may employ deception in investigations (e.g., using “discrimination testers” or investigators to uncover evidence of racial discrimination), the court concluded that the extreme conduct authorized by relator’s counsel – obtaining the confidential health information of innocent and unsuspecting patients under false pretenses from innocent physicians, and then breaching the disclosing-physicians’ trust by publishing confidential patient information in a lawsuit – easily distinguished this case from those where counsel’s deception was permissible.  Id. at 15-21.  [Editor’s note:  As a fan of the Patriots, Judge Saylor was well-positioned to evaluate whether sleazy schemes involved permissible deception or something worse.  Take that how you want, good reader.]

The court also rejected the argument by relator’s counsel that the ends justified the means.  Slip. op. at 21-23.  Relator’s counsel essentially argued that if relators are not permitted to use the type of deception at issue here, then it would be “difficult, if not impossible” for qui tam relators to satisfy the Rule 9(b) particularity requirement applicable to FCA cases.  Id. at 22.

This is where the concerns we mentioned in our earlier blog post, about opportunistic plaintiffs’ attorneys who manufacture cases lacking legitimate factual bases in hopes of obtaining financial windfalls, come to mind.  As Judge Saylor recognized, the FCA is designed to encourage claims by relators with actual, personal knowledge of fraudulent conduct, slip. op. at 22-23 – not by those who must resort to such deceptive tactics, like now-adjudicated unethical intrusions into the sanctity of the physician-patient relationship, as their only basis to prepare a complaint with sufficient information to survive a Rule 9(b) motion to dismiss.  A proper whistleblower has knowledge.  Different labels apply to those who mislead people for their own gain.

Employing the court’s inherent powers, Judge Saylor removed from relator’s complaint all information derived from the unethical investigation, and evaluated whether the remaining allegations could satisfy Rule 9(b).  They could not.  In other words, relator’s complaint had survived the defendant’s initial motion to dismiss only because of the information obtained from the unethical investigation.  Slip. op. at 23-27.  As a sanction, the court dismissed the relator’s complaint with prejudice to the relator (and without prejudice as to the United States, the real party in interest in qui tam cases).  Id. at 27.  But for a benevolent fan of patriots and Patriots (is there any other kind?), who determined that individual sanctions against relator’s attorneys were “not appropriate in this proceeding,” slip. op. at 24, there could have been more severe monetary or other sanctions for the use of deceptive or fraudulent means to advance that case.

As Judge Saylor held, the ends did not justify the unethical means employed by relator’s counsel.  Thus, for the defendant, justice finally (albeit belatedly) prevailed in this case.  If only relator’s counsel had been fans of patriots like Chief Justice Marshall, and employed only “means which are appropriate” to reach legitimate ends, this entire situation could have been avoided.

A lot of companies rely on retired and otherwise former employees for information in litigation – including product liability litigation. Particularly where a product (such as a drug that’s now gone generic) has a long history, they are often the best source of knowledge about what happened years ago.  In dealing with ex-employees, however, defendants must keep in mind that, for purposes of the attorney/client privilege, discussions with ex-employees are subject to being treated much differently (and less protectively) than corporate communications with current employees.

The recent case, Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016), although not involving prescription medical products, or even product liability, is a cautionary tale.  The defendant in Newman was a governmental entity, a school district.  The plaintiff alleged that he suffered a brain injury playing high school football, and that the injury occurred because the plaintiff was allegedly allowed to play in a game the day after suffering a concussion in practice.

The plaintiff in Newman didn’t sue until some three years after the injury. Id. at 1189-90.  By then, most of the coaching staff had turned over, and the individuals with the best knowledge of what had happened were employed elsewhere.  The school district’s litigation counsel contacted the ex-coaches and when they were deposed, claimed to represent them.  Id. at 1190.  Plaintiff challenged that representation as a conflict of interest and “sought discovery concerning communications between [the defendant] and the former coaches.”  Id.  The defendant resisted discovery with a claim of attorney/client privilege, and plaintiff opposed.  The defendant lost, and appealed denial of its motion for a protective order.  Id.

Continue Reading A Reminder To Be Careful With Ex-Employees And Confidential Information

This post does not involve a drug/device case – or even a tort case − but counsel worried about potentially abusive litigation funding should take a look at WFIC, LLC v. Labarre, ___ A.3d ___, 2016 WL 4769436 (Pa. Super. Sept. 13, 2016), in which a statewide appellate court, in a precedential decision, invalidated a litigation funding agreement as “champertous.”

WFIC involved commercial litigation. The underlying litigation is not important, except for its being extensive and expensive, and that the result was a significant verdict (low eight figures) – but not the nine-figure whopper that the plaintiffs had been hoping for.  2016 WL 4769436, at *1.

After entry of judgment, to keep the litigation going during the appeal, the plaintiff’s lawyer rejiggered his own fee arrangement so that various litigation funders, who had previously advanced funds, would be paid out the lawyer’s contingent fee.  Id.  The funds from the eventual satisfaction of the affirmed judgment were insufficient to satisfy obligations to the various litigation funders, the expectations of the original plaintiff (WFIC was an assignee of the original plaintiff, id. at *3 n.10), and also provide counsel with a fee.  Id. at *2.  As a result, various parties sued various parties.  Id. at *3.  The appeal in question pitted plaintiffs’ counsel against the world over whose priorities (if any) in the remaining funds were superior to his under the litigation funding agreement.  Id.

The Superior Court didn’t decide the priority question.  Instead the three-judge panel unanimously declared the litigation funding agreement itself “champertous,” and therefore void and unenforceable by anyone.  WFIC, 2016 WL 4769436, at *5 (“we conclude that the 2008 Fee Agreement is champertous and, therefore, invalid”).  In Pennsylvania, “champerty” is defined as:

[T]he unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute or some profit out of the litigation. . . . An agreement by a stranger to defray the expenses of a suit in which he has no interest or to give substantial support and aid thereto in consideration of a share of the recovery or the proceeds thereof is condemned by the courts as champertous[.]

Id. (emphasis added) (discussion of “maintenance” – essentially the same thing without a written agreement – omitted).  “[T]he common law doctrine of champerty remains a viable defense in Pennsylvania.”  Id.

Continue Reading Litigation Funding Contract Invalidated as Champertous in Pennsylvania

This post is from the non-Reed Smith side of the blog.

Everybody lies, maybe even several times a day. Often we don’t even realize it because the lies are small. They are white lies like “of course that shirt looks good on you.” What about all those times we nod while someone is talking but we really aren’t listening. Aren’t those lies too? Then there are those lies we tell ourselves, sometimes necessary to get through the day with our self-esteem intact.

But what about the biggies? The look someone in the face and make up something that is simply not true just to benefit oneself type of lie. The type of lie that is told when someone cheats or steals. Or, the type of lie that is told when a lawyer doesn’t do his or her homework but makes representations to the court as if they did. Look, nobody is perfect and there are times, especially in mass torts with lots of plaintiffs, where facts get jumbled or twisted a bit. Times when a little more digging before filing a lawsuit would have revealed different product usage or dates of ingestion. And sometimes those minor differences in facts can lead to cases being dismissed that probably shouldn’t have been brought in the first place. But complete fabrications of the core facts on which a case rests, in multiple cases – that’s going to get you sanctioned. And worse than a sanction, you’re going to lose your credibility with the court.

Losing credibility with the court isn’t something any lawyer ever wants to have happen. It also doesn’t take the extreme misrepresentations we are going to tell you about with today’s case. Promising things by certain dates and not delivering. Overstating a position and not being able to back it up. Being unprepared generally and repeatedly. All of this can lead to a court’s disfavor; to a judge doubting a lawyer’s veracity. While today’s case is very unique and the court’s distrust is directed to plaintiffs’ counsel, the most important to keep in mind is you don’t want to be in this position. Every time you address a court, in writing or in person, know your facts, know your law, and be honest.

Continue Reading A Lesson in What Losing Credibility Can Cost

If you represented a large corporation or a wealthy individual, wouldn’t you want to know if your prospective jurors were campaigning for Bernie Sanders on Facebook? Or how about criminal prosecutors who might want to know if members of their jury panel had posted strong feelings on police conduct?  If you were adverse to a drug or medical device company, maybe you would want to know if a prospective juror wrote for the Drug and Device Law Blog (although we can guarantee that you will find no more thoughtful and impartial jurors than the seven individuals who make up the collective “we”).

Millions of potential jurors make information like this (and much more) publicly available on the Internet through social media or otherwise, and what trial advocate would not want to uncover it? We got to thinking about this topic a few months ago when we read a unique order that came out of the Northern District of California in Oracle America, Inc. v. Google Inc., ___ F. Supp.3d ___, 2016 WL 1252794 (N.D. Cal. Mar. 25, 2016).  The district judge in Oracle v. Google asked the parties in a high-stakes copyright action to abstain voluntarily from searching the jury panel’s social media.  If the parties would not agree to a complete ban, then the court would impose specific limitations.

We’ll get to the details in a minute. But first, we set out to see if there are any rules that govern searching jurors’ social media (with research assistance from Reed Smith attorney David Chang).  It turns out there are, mainly within the rules of ethics and professional conduct.  The first rules obviously are our duties of competence and diligence.  They are among the first duties listed under the ABA’s Model Rules and probably the rules governing lawyers in most every state. See Model Rules of Professional Conduct, Rules 1.1, 1.3.  If there is publicly available information that would help us identify jurors with potential biases, a competent and diligent trial advocate needs to consider gaining access to it.

There are, however, countervailing considerations. On April 14, 2014, the ABA’s Standing Committee on Ethics and Professional Responsibility published “Formal Opinion 466, Lawyer Reviewing Jurors’ Internet Presence.”  The ABA committee’s opinion came on the heels of an opinion from the Association of the Bar of the City of New York—“Formal Opinion 2012-2, Jury Research and Social Media.”  These are not the only publications on the topic, but they were at the cutting edge, and they cover the major considerations.

Continue Reading Did You Search Your Jurors’ Social Media? There Are Rules

We have been riding the Philly subway for years, but only recently realized how much the ads on the car walls have changed. Not so long ago there were lots of ads for vocational schools, inducing today’s un- or underemployed to become tomorrow’s truck drivers and beauticians.  But nowadays at least three quarters of the ads are from plaintiff lawyers hawking their ability to wring cash out of slip-and-falls or the latest mass tort.  Mass transit advertising space that formerly advised riders to get skills is now dedicated to pleas to get paid.  The same is true for daytime television advertising.  Perhaps we are not alone in seeing this evolution as further proof, along with Keeping up with the Kardashians and the ascendancy of kale salad, that our culture is headed to Hell in a handbasket.

You won’t be surprised to hear defendants and their lawyers bemoan plaintiff lawyer advertising.  But we are not alone.  Recently, we heard a MDL judge express frustration about how plaintiff lawyer advertising was a blatant attempt to extend the tail of an over-mature mass tort.  Some plaintiff lawyer advertising is naked poaching of other plaintiff lawyer inventories – e.g., why pay a 40% contingency fee if you can pay only 20%?  But the most obvious aim and effect of such advertising is stirring up litigation.  What might not be so obvious is the extent to which plaintiff lawyer adverting causes adverse health outcomes.  A recent law review article looks into this issue and it is well worth reading. The article is by Elizabeth Tippett, a professor at the University of Oregon School of Law. The title is “Medical Advice from Lawyers: A Content Analysis of Advertising for Drug Injury Lawsuits,” 41 Am. J. L. & Med. 7 (2015).

Continue Reading The Risks of Plaintiff Lawyer DTC Advertising

Breaking news:

Have you ever been hammered in court, and then learn that the judge has received large – maybe Texas-sized – political campaign contributions from opposing counsel?  We have, and it’s not a good feeling.  Well, in Pennsylvania at least, new judicial ethics rules handed down yesterday by the Pennsylvania Supreme Court now provide a ground for mandatory recusal in this circumstance.  Here’s the new rule:

RULE 2.11

Disqualification

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

*          *          *

(4) The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.  In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial.  There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

(emphasis added).

The reportable “amount” mentioned at the end of the rule refers to Rule 3.15, which requires reporting of gifts totaling $250 or more on an annual basis.  So the rebuttable presumption kicks out above that number.

This is a mandatory recusal provision, so where the amount of political contributions involved greatly exceeds the presumed OK amount, by say four ($1000) to ten times ($2500) or more, motions could be expected to have a decent chance of success, either at the trial court level or on appeal, assuming as we do that the Court intends the rule to have teeth.

This new rule needs to be evaluated both for its offensive (in terms of filing recusal motions in appropriate cases) and defensive (those who contribute to judicial campaigns need to take it into account) implications.

We asked this morning why (1) it seemed ethical to offer into evidence an inadmissible document on the hope that opposing counsel wouldn’t object and the document would be admitted, but (2) it seemed less ethical to effect a late removal to federal court on the hope that opposing counsel wouldn’t object and the case would remain in federal court.

Our readers are plainly the strong, silent type, since only a few of you have posted comments responding to our question.

But David Bernstein took a shot at our question over at the Volokh Conspiracy, and he has commenters coming out his eyeballs.

Professor Bernstein’s “own view, putting aside the formal rules of professional conduct, is that attorneys’ first obligation should be to the integrity of the legal system, and not to their clients’ interests. Even so, I’m not sure I’d say ‘no’ to either question, given that a yes answer means that incompetent attorneys who don’t realize they are violating the rules would have an advantage over competent attorneys.”

But the commenters to Bernstein’s post are all over the lot. Thus, for an assortment of reactions to the ethics question we posed this morning, please take a look at Volokh.

And we extend a warm welcome to our new readers from the Volokh Conspiracy.