Ethics

I have just read the opinion by Federal District Judge Stephen P. Froit of the Western District of Oklahoma, in Graves v. Mazda Motor Corp., 2008 U.S. Dist. LEXIS 95600 (11/24/2008).  He postures as a supporter of civility, but in order to make his case, he engages in incivility, to the point of misrepresenting what I have said in criticizing the civility movement.  Since I have seen this kind of thing before, I am taking this occasion to expose it.

In an article in the ABA Journal titled ???Playing Hardball??? (73 ABAJ 49 (1987)),  I was quoted as saying: ???Look at the metaphor.  Hardball is playing with a baseball, not a softball; it???s faster and harder hitting and implies a high level of professionalism and the major leagues.  But it doesn???t mean spitball or sleazeball.  It???s a game where winning within the bounds of the rules is the most important thing.???

At another point in the article, I gave the example of one lawyer calling another and saying, ???I blew the statute of limitations.  Will you give me a break????  ???Civility in that context,??? I said, ???is simply a euphemism for the old boy network, for covering up for each other.???

And here is how ??? with an ???implication,??? and an omission of the context, and a ???Thus,??? and a ???However??? ??? Judge Froit misrepresents what I said (at 2008 U.S. Dist. LEXIS 95600 *9-*10):  ???Practitioners of hardball litigation tactics often sought to justify their approach to litigation by insisting that ???I???m just representing my client??? ??? the implication being that the lawyer???s duty to his client is breached if even a remote possibility of gaining an advantage is sacrificed to notions of civility.  Thus, Professor Monroe Freedman has opined that ???Civility [in the context of litigation tactics] is simply a euphemism for the old boy network, for covering up for each other.??? ... However, there is no support, from any authoritative source (old or new), for the proposition that a lawyer???s duty to his client includes a duty to engage in offensive or abusive conduct, even if that conduct falls short of being sanctionable.???

Of course, I said nothing about ??? much less in support of ??? a "remote possibility" of gaining an advantage, or in support of offensive or abusive conduct.

If Judge Froit???s misrepresentation is civility, I???ll take plain old hardball (???winning within the bounds of the rules???) any time.