Posted Mar 08, 2013 11:30 am CST
Four Crowell & Moring lawyers won’t face ethics charges for a suggestion in a client alert that inbreeding could be responsible for Appalachian birth defects chronicled in a study of mountaintop mining.
Assistant law professor Jason Huber of the Charlotte School of Law had filed ethics complaints against the lawyers in Washington, D.C., and West Virginia. The D.C. complaint, his first, had alleged that the lawyers made a materially misleading statement in an attempt to solicit business from the coal mining industry. Huber has now revealed that both complaints were dismissed last year, according to Legal Ethics Forum and the Am Law Daily.
The client alert has asserted that the mining study “failed to account for consanquinity [sic], one of the most prominent sources of birth defects.” Crowell & Moring has removed the memo and apologized.
The District of Columbia Office of Bar Counsel wrote in a Mach 2012 letter to Huber that its investigation had not found clear and convincing evidence of a violation of ethics rules. The office found that the statement does not relate to a lawyer or a lawyer’s services, a prerequisite for a violation of the ethics rules regarding attorney advertising, the letter said. Also, the statement was not knowingly false or made with reckless disregard for the truth, a finding needed to show a violation of the ethics rule regarding dishonesty.
“While it could be said that the client alert, in its overall context, implies or alludes to offensive Appalachian stereotypes, we do not find such implications or allusions to be a sufficient basis to sustain disciplinary charges for dishonesty,” the letter says.
West Virginia’s Lawyer Disciplinary Board Investigative Panel also said the statement did not appear to be dishonest or relate to a lawyer’s services. The panel also said in a December 2012 letter (PDF) that the lawyers did not practice in West Virginia and did not appear to be directing the communication to West Virginia residents or corporations.
“The panel does find, however, that in its overall context, respondents’ statement did allude to offensive Appalachian stereotypes,” the panel letter said. “The panel reminds respondents that such implications of gross stereotypes have no place in the legal system and undermine the integrity of the profession.”
Crowell & Moring issued a statement to the Am Law Daily that it agrees with the dismissals.