Two decisions that just recently came to light—one issued in December and another handed down a year ago—have squelched a high-profile ethics complaint lodged against four Crowell & Moring lawyers who penned a controversial mining industry–related memo in 2011 that raised the specter of inbreeding in the Appalachian region.
The Am Law Daily reported in October 2011 on the 58-page complaint filed against the four Crowell lawyers with the Office of Bar Counsel in Washington, D.C., by Jason Huber, an Appalachia native and assistant professor at the Charlotte School of Law.
Huber brought the complaint in response to a three-page Crowell client memo critiquing a study produced by researchers from West Virginia University and Washington State University that explored the possible links between mountaintop coal mining and birth defects in Appalachia.
The client memo, written by Crowell product liability and torts practice chair Clifford Zatz, along with environmental and energy resources partner Kirsten Nathanson, product liability partner William Anderson, and product liability counsel Monica Welt, faulted the study because it "failed to account for consanquinity [sic], one of the most prominent sources of birth defects."
The memo, in which the word "consanguinity"—a synonym for inbreeding—was misspelled, provoked a storm of protest that elicited a formal apology from Crowell in July 2011. The firm quickly removed the offending document from its website.
Huber—who in addition to filing an ethics complaint against the four Crowell lawyers in D.C., filed a similar complaint in West Virginia—told The Am Law Daily at the time that he did so because he felt the firm’s missive contained "material misrepresentations about the Appalachian people," which he felt should result in professional sanctions against those who authored it.
For its part, Crowell claimed that Huber was misguided in seeking sanctions over an online alert that was not intended to offend, was quickly removed, and for which the firm promptly apologized.
Now, thanks to Andrew Perlman, a former Schiff Hardin litigation associate who for the past decade has been a professor at Suffolk University Law School, we have our answer on how legal ethicists ruled when presented with Crowell’s inbreeding memo mishap.
In a post initially written last month, Perlman, a cocontributor to the Legal Ethics Forum blog, wrote that he contacted Huber to determine what had come of his complaints against Crowell. It turns out that both were dismissed, with the D.C. complaint tossed on the merits a year ago this month, and West Virginia dismissing the second complaint on jurisdictional grounds in December.
Perlman notes that the West Virginia ruling—penned by investigative chairperson Charles Kaiser Jr. of Wheeling’s Phillips, Gardill, Kaiser & Altmeyer—contains the rejoinder that lawyers avoid making "gross stereotypes." (Perlman reposted his story March 3 after temporarily taking it down on the recommendation of Georgetown University Law Center ethics counsel and adjunct professor Michael Frisch—for more background, see the comments section of Perlman’s blog post.)
While Crowell isn’t crowing about the dismissals, it did issue a brief statement on the matter when contacted by The Am Law Daily.
"The District of Columbia Office of Bar Counsel dismissed the complaint on March 16, 2012, and the West Virginia Bar Committee dismissed the complaint on December 21, 2012," said a Crowell spokeswoman. "We agree with the dismissals."
Crowell has close ties to the mining industry. The firm successfully represented Vancouver-based Pacific Rim Mining last year in its quest to exploit gold assets in El Salvador, and the company paid $170,000 to the firm for lobbying efforts in 2012, according to data compiled by The Center for Responsive Politics. (Crowell has received at least $370,000 in mining-related lobbying fees since 2011.)
Crowell also obtained a key ruling in October 2011 from a federal judge in Washington, D.C., in a fight against tougher environmental controls on mountaintop mining, according to sibling publication The Am Law Litigation Daily. Crowell represented the National Mining Association, an industry trade group, in the case.