Can doing right be wrong?

The AP is reporting that the paralegal who supplied documents in fight against tobacco companies died in Mississippi last week.  As reported in the Star Tribune:

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He worked for a Kentucky law firm representing the then-Brown & Williamson Tobacco Corp. and leaked thousands of pages of internal memos and studies concerning smoking and health that provided newfound ammunition to tobacco opponents.

The information made national headlines. News organizations reported the information showed Brown & Williamson executives knew decades earlier that nicotine was addictive and that they funneled potentially damaging documents to lawyers to keep them secret.

A few years later, the tobacco industry agreed to a massive settlement with the states over smoking-related health costs.

The paralegal, Merrell Williams, said of himself, “”I think to a lot of people Merrell Williams is a hero,” he said of himself in the interview. “I haven’t done anything wrong.”  Certainly Williams isn’t the only one who regards him as a hero. What he did changed a lot of lives and may even have saved some. Still it is difficult to say he didn’t do anything wrong. He was after all a paralegal. Persons who take on that role assume the same obligation of confidentiality as the attorneys for whom they work.  Words like “leaked” and “whistleblower” are euphemistic words that tend to obscure the fact that what he did almost certainly violated that obligation. It is wrong to violate that obligation.

Anyone who practices as a legal professional for over three decades will likely run into circumstances that make honoring that obligation very difficult. I certainly have. I recall many sleepless nights struggling with the implications of being bound by rules of attorney-client confidentiality. Each time the obligation to maintain confidentiality won that struggle. I honestly cannot say what I would have done in Williams’ position. But if I chose the path he chose I would not be able to shake the feeling that in order to do something right I had done something quite wrong.

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  • Clifford Smith says:

    Generally speaking, the attorney-client privilege protects confidential communications and documents arising during the course of legal representation. The idea being, the privilege is to promote full disclosure between the attorney and client, presumably resulting in informed legal advice.

    But at what point does the privilege become a vehicle to conceal acts of fraud or crimes? And, in cases of large corporations, like the Brown & WIlliamson Tobacco Corporation, should the privilege operate as a shield for active concealment and criminality? Here, Merrell Williams, Jr., was hired in 1988 by the Kentucky law firm of Wyatt, Tarrant & Combs. As a paralegal, Williams was tasked with analyzing and sorting through Brown & Williamson’s internal documents in connection with a tobacco lawsuit.

    As such, paralegal Williams would be bound by the ethical rules of conduct in the state where the supervising lawyer was licensed to practice. In this instance, the Kentucky Rules of Professional Conduct (“KRPC”) would apply. I contend that Brown & Williamson (and its lawyers) were involved in fraud and criminal conduct by not disclosing the contents of the documents, which were subsequently released by paralegal Williams.

    Under Rule 1.2 (d) of the KRPC “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulant.” The word “shall” is mandatory, and not discretionary; therefore, the lawyers at Wyatt, Tarrant & Combs had a duty to disclose the wrongdoing of their client (Brown & Williamson). This duty also extended to any paralegal working under one of their lawyer’s. As such, paralegal Williams would have a duty to NOT actively conceal evidence of fraud or criminality on the part of the client.

    It should be noted, in 1989, the Kentucky Supreme Court adopted its own version of the American Bar Association’s 1983 Model Rules of Professional Conduct, as applied to lawyers practicing in that state. See Kentucky Law Journal, Vol. 78, No. 4 (1989-1990), pp. 767-801. Those ABA rules would correspond to the time frame when Merrell Williams released the documents. Thus, current KRPC Rule 1.2(d) cited, appears to mirror that of the 1983 ABA Rule 1.2(d).

    In short, what is constued as a strictly legal ethics breach on the part of Williams, seems more like a moral breach for his having stolen the documents, along with alleged gifts he apparantly received. Thus, if we apply a Kantian duty based model of ethics, then Williams was unethical. But, if we adopt a Bentham utilitarian model of ethics, an action is nonetheless morally correct, if among the people it affects, it produces the greatest amount of good.

    My view is paralegals should not yield to lawyers or law firms involved in the active concealment facts, especially when those facts have resulted, or will result, in harm to others, as in the tobacco cases. In its strictest sense, Merrell Williams did the right thing by disclosing the documents, but the way he went about it raises ethical questions premised in morality, as I don’t believe the attorney-client privilege was ever intended to operate as a shield to conceal fraud or criminal acts.

  • R. E. Mongue says:

    The rule establishing the obligation not to assist a client in conduct that the lawyer knows is criminal or fraudulent and the rule establishing the obligation to maintain confidentiality are two separate rules and we must be careful not to conflate the two. The former rule imposes a duty not to assist in a crime or in fraud (the exact wording and prohibition can differ depending on the time and the jurisdiction,) but that obligation does not automatically waive the obligation to maintain confidentiality. If my client admits to me that he has committed a crime, but intends to take the stand and say he did not, I cannot assist him in doing so. This is a common occurrence. It was not at all unusual for me to have to threaten to, or actually, withdraw from a case under such circumstances. But it does not override my obligation to maintain the confidentiality of his admission to me. I cannot run to the DA and tell her my client has confessed to me. Under some circumstances the current Model Rules of Professional Procedure do allow disclosure to the tribunal as a remedial measure: ” A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” M.R.P.C. 3.3.d. Disclosing in camera to a tribunal is a far cry from handing confidential information over to the opposition on one’s own. So whole Williams was bound by the ethical rules of conduct in Kentucky at the time and those rules may have imposed an obligation on him not to participate in fraud, those rules did not enable him on his own to make a utilitarian analysis and decide to ignore the obligations imposed by other rules.

    This is one of the major problems with Utilitarianism – one that may theorists have attempted to deal with through “Rule Utilitarianism” rather than “Act Utilitarianism.” If we follow Williams’ logic (assuming that was his logic) to it’s conclusion, we then also justify people who murder abortion doctors, etc., because their utilitarian analysis calculates that one doctor’s life as less valuable than the many fetuses he would abort. The legal profession on the whole operates much more on Kantian deontological principles than utilitarian principles. I prefer the far more nuanced and less rule based principles that arise from Aristotle’s virtue ethics.

  • Clifford Smith says:

    “The rule establishing the obligation not to assist a client in conduct that the lawyer knows is criminal or fraudulent and the rule establishing the obligation to maintain confidentiality are two separate rules and we must be careful not to conflate the two.”

    An important distinction. But if we factor in that an attorney is sworn to uphold the law, they would be bound to disclose fraudulant or criminality on the part of the client despite (1) the attorney-client privilege, or (2) the duty of confidentiality, or any other rule operating outside those two spheres. Similarly, Merrell Willams would have an obligation to abide by the law, which would extend to reporting a
    fraudulant or criminal act on the part of an employer or client. As such, this obligation to not participate in fraudualnt or criminal behavior supercedes (1) the attorney-client privilege or (2) the duty of confidentiality (even though the latter is broader in scope and extends to all documents and secrets of the client).

    “If we follow Williams’ logic (assuming that was his logic) to it’s conclusion, we then also justify people who murder abortion doctors, etc., because their utilitarian analysis calculates that one doctor’s life as less valuable than the many fetuses he would abort.

    Comparing Williams (who released documents that were actively concealed from the public) to people directing violence to abortion doctors, is at best, an apples and oranges comparison. If, however, we factor in that Williams was never hired as a paralegal, but rarther as a “document analyst,” he would not have been bound by the ethics promulgated by paralegal associations or modeled after the ABA.
    There is also no indication that Williams ever completed a paralegal program, only that his credentials were in unrelated fields. As such, Williams role as a paralegal remains unclear. What is clear though is his obligation to abide by the law. For those, reasons, a Bentham ethics analysis may be more appropriate, since his release of the documents undoubtably saved lives and ensured victims of the tobacco industry fraud were compensated, to some extent.

    “The legal profession on the whole operates much more on Kantian deontological principles than utilitarian principles. I prefer the far more nuanced and less rule based principles that arise from Aristotle’s virtue ethics.”

    In many ways, there seems to be two ethical streams of conduct driving the legal profession: the first corresponding to Big Law and the corporate clients they represent, who are often involved in actively concealing documents that harm the public; and the second set of ethical principles corresponding to the solo lawyer practioner and small law firm that don’t have the huge retainers or financial incentives to look the other way at corporate clients involved in fraud or criminality. In that context, when millons of dollars are at stake, the Kantian view of ethics plays a seemingly diminished role in law, as would the Aristotelian view.

  • Clifford Smith says:

    There is a Kentucky case that arose in 1991, around the same time Merrell Williams released the documents. In Steelvest v. Scansteel, the court determined that although the “[attorney-client] privilege is generally considered to be absolute as to past transactions and offenses, the rule does not apply to future transactions when the person seeking the advice is contemplating the committing of a crime or the perpetration of a fraud.” 807 S.W.2d 476 at 487 (1991) (quoting Cummings v. Commonwealth, 221 Ky. 301, 298 S.W. 943 (1927)).

    And, in a later Kentucky case, under the crime-fraud exception, a party had a right to depose lawyers retained by an insurance company of their knowledge of a plan by the company to perpetrate fraud. Morton v. Bank of the Bluegrass, 18 S.W.3d 353, Ky. Ct. App. (1999).

    While the facts from both cases are distinguished from the Brown & WIlliamson tobacco case, the fraudulant concealment of documents would nevertheless seem to fit the crime-fraud exception.

    Ethics is a fascinating topic and one that deserves considerably more attention with regard to paralegals, or in Merrell Williams case, a document analyst who likely had no formal paralegal training in law or ethics, yet categorized as a paralegal.

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