August 2007 Ethics Dunces

Lawrence Lebowitz and the Pittsburgh Law Firm of Cohen and Grigsby

Lebowitz was on a panel exploring the federal requirements for recruiting American workers before a job can be given to a foreign worker, and volunteered this advice:

"Our goal is clearly not to find a qualified and interested U.S. worker," he said. "And, you know, that, in a sense, that sounds funny, but it's what we're trying to do here."

"So certainly we are not going to try to find the place where the applicants are going to be the most numerous," Lebowitz continued. "We're going to try to find a place where, again, we're complying with the law and hoping and likely not to find qualified and interested worker applicants."

In other words, comply with the letter of the law, but undermine its purpose. Sabotage your own efforts. The law is just a hurdle to overcome, not an obligation to fulfill. There is an apt phrase for this approach, and it is "bad faith."

Reminder: bad faith is not ethical.

Somehow Lebowitz's comments ended up on YouTube, and have received about 55,000 views. They also attracted severe criticism from the public, news media, commentators like CNN's Lou Dobbs, and U.S. Senator Charles Grassley and Representative Lamar Smith, who sent a letter to U.S. Secretary of Labor Elaine Chao to request that she investigate "the law firm's unethical procedures and advice to clients."

There is a proper response to being caught on video with your ethics down, and it is this: "We're sorry; we agree that the recorded remarks convey a cynical and evasive approach to legal compliance that is neither appropriate nor representative of this firm's practice philosophy." But that is not how Cohen & Grigsby responded. Instead, the firm made this comment:

" We stand by the substance of our recent Immigration Law Update Seminar. We regret the choice of words that was used during a small segment of the seminar. It is unfortunate that these statements have been commandeered and misused, which runs contrary to our intent." 

Oh, really? There is no way to misinterpret what Lebowitz said or to mistake his meaning. He was advising clients of his firm to obey the letter of the law while intentionally violating its clear intent, cheating the workers---American citizens--- that the law was designed to benefit by doing so. This is not consistent with the legal profession's stated ethical ideals, as stated in the Preamble to the American Bar Association's Model Rules (emphasis is The Scoreboard's) :

5] A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes … A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. 

The best that can be said of the firm's reaction is that it was honest in a couple of ways. It refused to apologize for something it wasn't the least bit ashamed of. It regretted its partner's choice of words, because those words got the firm bad publicity, but not their message. And having Lebowitz's statements "commandeered and misused" [Translation: "We never thought this would end up on YouTube!"] was indeed "contrary" to the firm's "intent." The firm's intent was to give its unethical advice without anyone but its lawyers and clients knowing about it.

For that honesty, the Scoreboard awards the sound of one hand clapping. For the rest, Lebowitz and his firm get a richly deserved Ethics Dunce.