SC Lawyer, November 2006, #6. Changing the paradigm.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, November 2006, #6.

Changing the paradigm

South Carolina LawyerNovember 2006Changing the paradigmBy John FreemanOur mommas told each of us, "The ends do not justify the means," but some of us were not listening closely to what Momma was saying when she was trying to help us. For example, lawyer Ann Baskins evidently was AWOL that day. Until recently, Ms. Baskins was Hewlett-Packard's general counsel. She resigned that lofty position on the same day she declined to testify ("as advised by her lawyers") before a U.S. House of Representatives subcommittee exploring Hewlett-Packard's allegedly criminal behavior in seeking to plug leaks to the press by board members.

Nothing was wrong with the end H-P and Ms. Baskins sought to achieve. After all, stopping people holding fiduciary offices from blabbing to reporters about important information received in confidence is a laudable goal. Using false pretenses ("pretexting" by private investigators) to achieve that end is a means condemned by various laws and multiple provisions of the Rules of Professional Conduct, including Rules 4.4 (unethical to gather evidence using means that violate third person's rights) and 5.3 (duty to supervise non-lawyers "employed or retained by or associated with a lawyer"). As a result of warped business judgment and no attention to legal ethics at all, an admired corporate icon has taken a serious reputational hit.

For Ms. Baskins, the consequences are apt to be more than reputational. Twenty-six years of faithful service to her corporate client ended the same day she asserted the Fifth Amendment in the face of a Congressional subpoena. Still looming is the possibility Ms. Baskins may be drawn into proceedings instituted by California's Attorney General or the U.S. Attorney's Office addressing the investigation she supervised.

Though she is now unemployed, Ms. Baskins did not leave Hewlett-Packard penniless. Press reports put her severance package's value in excess of $4.6 million, putting aside her interests in various H-P retirement plans. One strongly suspects that Ms. Baskins would gladly give the severance millions and a great deal more to have back the good job and the good name she lost when she trusted fools to use proper means to do investigative work for her.

What lawyers mainly do is solve problems for people. Solving problems requires information, and getting information is what got Ms. Baskins in trouble. Either getting information or keeping it from being gotten are tasks that provide good opportunities for lawyers to get into trouble. Two years after implementation of the Supreme Court's new civility oath, five years after the startling Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001), and eight years after Matter of Golden, 329 S.C. 335, 496 S.E.2d 619 (1998), we still face a professional landscape where lawyers' abusiveness toward each other is far too common.

Indefatigable South Carolina trial lawyer Kendall Few recently gathered anecdotal evidence on discovery abuse, rounding up affidavits from trial lawyers from around the state on the subject. His "Summary of Trial Lawyer Discovery Abuse Affidavits" contains these disturbing excerpts among others:

* It has become routine and customary for defendants to provide limited information in response to discovery requests, providing only basic information without fully responding ... Harold Christian, Greenville * In almost all of the complex cases I have been involved in, the defendants have, for the most part, engaged in what I view as discovery abuse ... [V]ery seldom do they ever make a full response or production of documents until the eve of the motion to compel ... It is my belief that if the defendants truly feared the court imposing sanctions for discovery abuse that most of the defense discovery abuse in this state would cease to exist. Thomas E. Hite Jr., Abbeville * I have had difficulty in the course of my practice in obtaining full and complete answers to discovery from defense counsel. This is a chronic problem in South Carolina. Darrell Thomas Johnson Jr., Hardeeville * The greatest impediment to civil justice in South Carolina is discovery stonewalling and obstruction by corporate and insurance interests. Such discovery abuse is rampant and largely unchecked in this state In many cases more than 50 percent of our time and energy in case preparation is spent on attempting to obtain appropriate discovery. Discovery abuse is out of control Gary Poliakoff, Spartanburg * Open and full disclosure is absolutely critical to the administration of justice in civil litigation matters ... Corporate litigants, particularly when they are defendants, frequently make incomplete efforts to supply full and complete discovery responses and/or read discovery requests in a fashion that is not only narrower than the literal wording in the request, but often tortured to the point that the discovery response does not meet the request in any meaningful way. [T]he failure of litigants to provide full and complete discovery responses has increasingly become a problem in civil litigation in South Carolina. Thomas H. Pope III, Newberry * Abuse of the discovery process is a problem in almost all of my cases. Typically, discovery responses are evasive and obstructive and result in countless hours of wasted time and unnecessary expense. Thomas P. Stevens Jr., Loris * Complete discovery in civil litigation in South Carolina is fictional. Most of the time attorneys fail to produce documents and answer questions correctly Discovery abuse is rampant. Julian L. Stoudemire, Seneca * I have found that the failure of litigants to comply with the requirements of the Rules of Civil Procedure by providing full and complete responses to discovery requests in a timely manner is a serious problem in our state which consumes an inordinate amount of time and resources and tends to undermine the due administration of justice. Mark C. Tanenbaum, Charleston

The preceding quotes are taken from plaintiffs' lawyers, and there's no doubt some able defense lawyers could write equally searing affidavits attacking indolence or obfuscation they have experienced at the hands of plaintiffs' lawyers. The question, however, is not "Who is more at fault, plaintiffs' counsel or defense counsel?" The questions really is "How do we go about cleaning up this mess?" There is a saying that "If you keep doing what you've always done, you'll keep getting what you've always gotten." For discovery abuse to be curbed, the paradigm needs to change; more aggressive action needs to be taken by lawyers and judges.

The new oath, Golden and Anonymous Member all send the same message: discovery abuse is unethical. It is high time that lawyers bitten by discovery abusers began reporting the miscreants to the Commission on Lawyer Discipline. Ms. Baskins of Hewlett-Packard is paying a large price for a colossal error of judgment. Her demise shows what can happen to lawyers who forget that the end does not automatically justify the means.