A Defense Lawyer Gets Candid

Suddenly there is a hot controversy in the legal world, as a well-respected defense lawyer confided to a continuing legal education seminar that he recommended aggressive opposition to discovery motions in nursing home negligence cases….what he termed the “just say no approach.”

“I can’t tell you how much I would encourage you defense attorneys to not give over any documents willingly…I mean we try to fight everything…incident reports, surveys, anything,” Donald Davidson said. “Because we find that 50% of the time plaintiffs ask for something, we give them an excuse why we can’t give it to them…they never make a motion and they never get it.”

Somehow a tape of Davidson’s advice got into the hands of a non-lawyer, and in the memorable phrase of Claude Rains, the bar is shocked…shocked! that a defense lawyer would take such an unethical approach when all attorneys are supposedly bound by such ethical rules of professional conduct as…

· Rule 3.1, which says that only good faith defenses are ethical, not “excuses”

· Rule 3.2, which commands that lawyers expedite, rather than obstruct, the litigation process

· Rule 3.4, which declares it wrong and unprofessional for a lawyer to “obstruct another party’s access to evidence.”

Then there are all those problematical rules about lawyers not lying, when Davidson advises, “Deny documents. Claim that the documents are privileged.”

Davidson, amusingly enough, now says that he “said things in a more candid, straightforward way than I should.”

Uh, no, Mr. Davidson, that’s not quite it. Your problem wasn’t candor. Candor is good. The problem is that lawyers, like you, in defending civil suits have been using obstructive, ethically prohibited tactics as standard practice, and because these defense lawyers are a powerful voice in the ABA and all the state bars, Ethics Committees have dutifully looked the other way. So unimpeded are they in their delaying tactics and discovery abuse that many of them don’t even remember that it violates the rules, hence Mr. Davidson’s alarming candor.

Closing ranks, as is the usual reaction of all professions when someone reveals collegial dirty laundry, Davidson’s fellow lawyers are insisting that Davidson was engaging in hyperbole, that most defense lawyers recoil at the tactics he recommended. But this cat is out of the bag, or would be, if any media besides the legal press took notice of it (Have you read the Legal Times lately?). Lawyers often get attacked for their ethics when they are just doing their jobs, but Davidson inadvertently revealed one of several common practices that almost justify the lawyer jokes. We’ll see if the bar associations finally start enforcing the rules against discovery abuse.

Returning to Claude Rains, we suspect that Captain Renaud (the role memorably played by Rains in “Casablanca”) is the likely model here:

Inspector Renaud: I’m shocked! Shocked! That gambling is going on in this establishment!

Employee: Your winnings, Captain!

Inspector Renaud: Thank you very much!