The LitiGator has some interesting thoughts on the Fox v. Franken controversy. He concludes that
The fault in the Fox News case lay with the client, not its lawyer.
I must respectfully disagree with the LitiGator. We have instead the Bob's Country Bunker of litigation problems ("We've got both kinds—client's fault and lawyer's fault!"). In my effort to be fair and balanced, I believe that we need to pillory both of them. The LitiGator certainly raises a valid concern about the "public shunning" approach recommended at RealityChecker: that others who disagree with the fundamental objectives of a litigant will use the same tactics to pillory that litigant's lawyers, even when the litigant in question is controverting an undecided issue of public import. <SARCASM> But that never happens now. AOLTimeWarner would hire me to handle internet piracy litigation in a heartbeat. Lawyers who intern at the ACLU or Amnesty International have no problem making partner at white-shoe law firms. </SARCASM>
The converse, however—not criticizing or sanctioning lawyers who seek to reach a client's improper strategic goals with improper tactics—is a rather subtle, but at the same time foreclosed, difficulty with the Nuremberg Problem. In this particular instance, it essentially allows the firm in question and the three named attorneys (I will not give them the satisfaction of providing more indexable entries to their names, as that is free advertising—just like they provided to Al Franken) to justify tactics that are sanctionable regardless of the nature of the underlying litigation to escape with "I vas only folloving orders." Rule of Professional Conduct 1.2 denies this dubious defense:
A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraph[]… (e), and shall consult with the client as to the means by which they are to be pursued.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
Official Comment 1: …[A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so…. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
Cf. NYDR 2–110(C)(1)(c), 7–101(A)(1) (a lawyer "shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law…. A lawyer does not violate this Disciplinary Rule, however, by… avoiding offensive tactics…"), 9–101(C).
Thus, in the Fox v. Franken litigation, we have both improper ends, which justify pillorying the client, and improper means, which justify pillorying the lawyers. The improper end was use of litigation to silence an adverse opinion founded on critical First Amendment concerns, particularly by a purported "news organization." The improper means were the particular allegations in the complaint, especially the scurrilous and unnecessary ¶ 77 that consisted of nothing more nor less than a personal attack on Al Franken that did not relate to the actual causes of action alleged in the complaint (which were frivolous in any event).
I agree that Fox should bear substantial responsibility for this mess, and should be pilloried for it. I propose that Roger Ailes (chairman of Fox News) (disclosure: I had some contact with Mr. Ailes in an official capacity while an active-duty officer during the reign of George II) be required to walk around Times Square for six hours wearing nothing but a Speedo and a billboard emblazoned with the text of the First Amendment and a large, red letter "F." Perhaps he should be joined by his three lawyers, too; but I think that internal discipline within the legal community should be plenty of disparagement for them. The irony that Fox News is one of the few media conglomerates to unabashedly support the most radical form of "victim's rights" amendments has not escaped me. However, the real victim in this mess is not Al Franken. To some extent, it was the American public; but the individual who suffered the most harm was whoever's case was not able to be heard in a timely fashion because Judge Chin was forced to deal with this nonsense. Or, perhaps, even Judge Chin himself; at least he had the satisfaction, though, of smacking both lawyer and client on the public record.