Tuesday, June 21, 2005

Barton v. USDC (9th Cir. - June 9, 2005)

Can you can troll for clients on the internet with a disclaimer that anything they say to you doesn't create an attorney-client relationship and nonetheless claim attorney-client privilege for anything they tell you? Sure you can. At least after this opinion by Judge Kleinfeld.

The lawyers here are seeking lucrative Paxil claims, so they set up a web site that ostensibly seeks to "gather information" (what a crock) about its visitor's experiences with Paxil. Which the lawyers will then sort through and, from the vast quantity of responses, try to grab anyone who look like they have a good case. And the lawyers succeed, getting lots of responses, including four plaintiffs who they ultimately sign up. And, once plaintiffs sue, defendant promptly seeks discovery of their initial communications through the web site. To show, obviously, that the claims that the plaintiffs articulated to their lawyers prior to being coached (Did I say "coached?" I mean, of course, "advised") were a little to a lot different than the claims they later asserted in the litigation.

Plaintiffs claim that this information is privileged. But the district court grants defendant's motion to compel, holding that the disclaimer about forms an attorney-client relationship (among other things) means that there's no such relationship and no privilege either. At which point the plaintiffs seek a writ of mandamus. Which, as we all know, is pretty darn hard to get, particularly in federal court. But Judge Kleinfeld grants it, holding that the responses were indeed privileged.

I don't have a major problem with the result. Which, notwithstanding my backhanded slams, is probably the same one I'd reach, as information you reveal to a potential lawyer is privileged even though they're not yet your lawyer. And I also agree with a lot that Judge Kleinfeld says in the opinion about the importance of confidentiality and the reason for the attorney-client privilege. All good stuff. And stuff with which I agree.

But let's not go overboard here. The last paragraph of Judge Kleinfeld's opinion is way too pollyannaish, and sounds like it comes from someone with a very unrealistic view of what it's like in the trenches. This is where Judge Kleinfeld admits that the cost of not producing these documents may appear to be to allow plaintiffs to change their story and not be caught, but -- he responds -- that won't really happen. Why not? Because all lawyers have an ethical duty of candor, and, for this reason, would never allow their clients to change their story or shade the truth in such a fashion. "Most lawyers' sense of honor would prevent them from [allowing their clients to do so] even if they were not at risk of losing their licenses if they did."

Yeah. I wish that were the case. I really do. But, sadly, I feel pretty strongly that it's not. Lawyers allow their clients to change stories and shade the truth all the time. Particularly lawyers who are self-interested in their client's success, as is nearly always the case. Most concretely, as here, when the lawyer is paid a contingency fee. But sometimes even for a lot less. I wish we could rely on the integrity of lawyers and that this would do the job. But come on. It doesn't. Or at least that's my very, very strong sense.

Better to forthrightly admit that there's a downside to not allowing the discovery -- that we might well be allowing a little bit of sleaziness as a result -- but explain that the advantages of confidentiality are worth it. That's a more honest, and accurate, justification for what the Ninth Circuit does here. Sure, there are some lawyers -- the best ones out there -- who really take their ethical duties to heart. But that sort of stuff is, way too often, lost in the shuffle.

Which is too bad. But it's the way of the world. And we have to deal with the world as it is, not as how we'd like it to be. And to pretend that client's won't shade the truth -- or even commit outright perjury -- because their lawyers just flat out won't let them is relying a bit too much on the universality of internalized legal ethics.