Thanks for the Memories

How lawyers get the testimony they want.

Walter Olson from the June 1998 issue

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So are these explanations for real? You might think the answer would be to conduct some sort of investigation into such questions as how and how widely the document was used, whether the firm's lawyers were ignorant of its use, whether there were other, similar versions of the memo, whether any such versions were shared among other law firms, and so forth. But Baron & Budd has proceeded to block any such probe. In fact, its lawyers have been refusing to let their clients answer questions about whether they've seen the memo.

In fact, Baron & Budd argues, the real scandal is that their privacy has been invaded--a position that has had some success. True, in December Bexar County Judge Michael Peden ruled against the firm's claim that the memo was protected by attorney-client privilege--"No privilege attaches to the Deposition Script because it also evidences a plan to commit a crime or fraud within the meaning" of the Texas Rules of Civil Evidence. But in January a state appeals court in Austin found the document was privileged "as a confidential communication between an attorney's representative and the client made for the purpose of facilitating the rendition of legal services." In March the full court withdrew that opinion, which had been issued by a panel irregularly constituted of two judges, and ordered a rehearing on the matter. Meanwhile, "Baron & Budd takes the position that any public use of The Document is a breach of B&B's privileges, and we will retaliate against any attorney who uses it," Baron told Mealey's Asbestos Litigation Reporter.

Even more colorful developments were afoot in Dallas, where Judge John McClellan Marshall, who presides over a group of Baron asbestos cases, referred the matter to a state bar grievance committee. The Texas Rules of Professional Conduct, like those of other states, provide that, "[a] lawyer shall not...counsel or assist a witness to testify falsely." But in no time at all the bar committee dismissed the complaint. In the view of the State Bar of Texas, the memo apparently revealed no ethical violation worth worrying about. Judge Marshall, evidently nettled at the quick rejection of the bar complaint, proceeded to raise the stakes. Terming the matter "scandalous to the community as well as to the profession," and "an affront to the integrity of the judicial system," he referred it to a grand jury for possible prosecution. Baron proceeded to call Judge Marshall "a fruitcake" and fired off an official complaint against him to the State Commission on Judicial Conduct.

Meanwhile Baron was preparing to proceed with his ultimate line of argument: There was nothing ethically wrong with the memo in the first place. He proceeded to obtain opinions in its favor from two University of Texas legal ethics professors, from University of Indiana legal ethics specialist William Hodes, and from Steven McCormick, general counsel of the State Bar of Texas.

Hodes, for example, wrote in an affidavit that he found "nothing improper or unethical" in Baron & Budd's use of the document in the Reathy case. "It is...appropriate for a lawyer to instruct his client how to answer questions in accordance with the truth that will best serve his case," Hodes wrote. That affidavit deserves an acid-free mount and mahogany frame: How better to sum up the degree of moral insight and ethical rigor that America's legal academy expects of its members?

Really, we should be grateful to America's lawyers. Not only are they entertaining, but we owe them so many memories.