Under Analysis: The Perilous Pitfalls of Vigorous Advocacy

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by Mark Levison Lashly & Bear, P.C.

Mark H. Levison’s practice at the St. Louis, Missouri,  includes complex commercial litigation and the counseling of clients in areas of intellectual property and general litigation, as well as governmental relations and administrative affairs, with a concentration in economic development incentives. Levison formerly served on the staffs of the United States Senate and the U.S. House of Representatives. He is the founder of The Levison Group, syndicator of legal analysis and satire column, author of several columns and a book, and is the Editor-in-Chief of The St. Louis Lawyer.

There’s lots of glory in being a lawyer.  You get to fight for your clients, whether in court or otherwise, you have the thrill of victory—sometimes.   You get adoration from your clients—sometimes.  It is generally an exciting job and one which others often admire.  People think lawyers are smart, whether true or not, and the occupation affords the opportunity to make a pretty good living, and in some cases, a great living. 

On the downside is the disdain with which some hold lawyers, although that’s not usually the case when that person needs a lawyer.  Sometimes, the conflict gets too personal.  It is plainly hard work, and a lawyer on the other side is virtually always trying to take advantage of you, and sometimes groups of lawyers on the other side are trying to take advantage of you. A lawyer is generally expected to be available 24/7. These are some of the obvious negatives that come with the territory, but there is something else that is far more important.

Often, lawyers find themselves faced with ethical dilemmas. Most of these issues are commonplace. We know what to do, and they are handled as a matter of course, but sometimes it gets sticky. 

Last week, a well-publicized battle between self-driving car companies Uber and Waymo got nasty when U.S. District Court Judge William Alsup postponed the trial to give Waymo (owned by Alphabet, Inc., the parent of Google) time to review new evidence. Uber’s lawyers were accused of having withheld that new evidence. 

Judge Alsup had already previously chastised Uber’s lawyers for disclosing volumes of emails just before the trial was ready to begin. The judge had also referred possible criminal behavior by Uber to the Justice Department. The new evidence, a 37-page letter sent to the judge by the U.S. Department of Justice, was from the lawyer for Richard Jacobs, Uber’s security analyst and former Manager of Global Intelligence. Additionally, it was determined that an email from Jacobs to Uber executives,  including then Uber CEO Travis Kalanick, bearing the subject line “Criminal and Unethical Activities,” had also not been made public. 

In granting the delay, Judge Alsup suggested the evidence appeared to indicate that Uber and its lawyers had engaged in an elaborate cover-up of trade-secret theft activities.  Discovery avoidance tactics were purportedly “employed clandestinely through a distributed architecture of anonymous servers, telecommunications architecture, and non-attributable hardware and software.”  The letter suggests that Uber employees were schooled in “using ephemeral communications, non-attributable device(s), and false attorney-client privileged designations” so as not to create a paper trail which could be used against Uber. Uber’s new CEO appeared to acknowledge past questionable behavior, writing that, under the old regime, apps like “Wickr and Telegram were used often at Uber” but that he had directed that such apps not be used when discussing Uber related business.  

When asked why the evidence wasn’t turned over sooner, Uber’s Deputy General Counsel, Angela Padilla, told Judge Alsup that she had not thought the subject letter was relevant so she withheld it when records were demanded by the court during the discovery process. Judge Alsup’s response was direct and to the point.   “It looks like you covered this up, refused to turn it over to the lawyers who were most involved in the case, to me, for reasons that are inexplicable.  To me it does not add up.”  The judge also noted that “I can’t trust anything you say, because it’s been proven wrong so many times.” 

I can tell you that, without question, no matter how high-powered a lawyer you may be,  that is not the type of thing you want to hear a Federal judge say to you. 

The fact is lawyers are generally judged by the aggressive nature in which they defend their clients.  “Zealous” representation, as that term is used in the Federal rules, is the often cited standard. However, having an aggressive champion as your lawyer is different than having a cheater as your lawyer. Although ethics may not matter to some clients, it MUST matter to every lawyer. 

As a young lawyer, I heard a story from a friend who had represented a client in a high stakes commercial case.  Everything was going great until he discovered a bombshell document which contradicted all the helpful documents previously produced by his client. He feared that one document could be used by the opponent to discredit his client and, perhaps, cause him to lose the case. Distraught about the document, he showed it to the senior litigator in his firm.  That litigator presented the younger lawyer with a tenuous argument that the document was not responsive to the document request, and then argued that they should rely on the argument to hold back the damaging documents.  When the young lawyer hesitated, “We shouldn’t produce this because I know those guys on the other side, and I can tell you they are hiding documents from us,” was the elder “stateseman’s” response.  The young lawyer did not produce the document and he won the case, but years later that decision still troubled him.  Rightfully so. 
Good faith decisions as to what documents need to be turned over are part of our profession and have to be made every day.  Knowingly withholding information by concocting arguments that are merely excuses for known improper actions, damage the profession and the fabric of justice. 

As lawyers, we have responsibilities to our clients, to the profession, and to ourselves.   We want to win for our clients, and we want our clients to keep giving us business.  In the end, however, most clients disappear and most lawyers remember the choices they made.  Our profession is based upon noble goals,  but is easily discredited by scurrilous actions.  

Keep your eye on the Waymo v. Uber case.  There may be some lessons to be learned.

 

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