So Then We Acted Unethically...And It Worked!

Covington and Burling, a big law shop, hosted a panel on congressional investigations. This is one of those events to which everyone goes more because it is like a Michael Lewis book come to life and less because you might ever need to apply the knowledge. I mean really, representing clients before Congress is about as common as appearing before the Supreme Court...with a similarly inverse proportion of people who would love to do it - in the abstract.

Fmr. Congressman Mike Barnes shared this tidbit: My client didn't want to produce a document, but we couldn't withhold it, so instead we produced thousands of pages in the hopes this one wouldn't be noticed. If ethics is ends justifying means, he is a saint. If ethics means avoiding needless waste, particularly with Congress - the party of which Mr. Barnes was formerly a member and which oversees the public fisc - this is, at best, abusive. I get it, it works. Lawyers do it all the time in discovery. But lawyers tend to produce everything first and review later (except for privileged items). If you review first and you know which documents are relevant, and then go out of your way to pile on additional documents just to obfuscate, is that (we'll use a lighter term here) ethical?


bachrach44 said...

Of course it's unethical to obfuscate the truth. The problem is, the legal profession is not paid to be ethical - they are paid to represent the best interests of their clients. In doing so, they have replaced "ethics to protect the common good", with "A professional code of conduct defined by the ABA and the laws of the land". The two are in no way equivalent.

David said...

...is that (we'll use a lighter term here) ethical?

ooh ooh - I know this one!

This is the kind of behavior which non-lawyers point to when they want examples of lawyers behaving badly. Is this behavior actually acceptable under ABA rules?