The Monterey Herald, a small California newspaper, has broken a major story involving unethical behavior by Justice Department lawyers. The DOJ is investigating one of its lawyers, Michael Sitcov, for practicing for two years on a suspended license after failing to pay bar dues. This is obviously the unauthorized practice of law (UPL) — a criminal offense in some jurisdictions and clear professional misconduct. A second attorney, Margaret O’Shea, has been indicted for fraud, for posing as an attorney in California after leaving employment at the Justice Department. Both Sitcov and O’Shea had extensive personal involvement with the litigation in Pigford v. Veneman, involving claims of racial discrimination by the Department of Agriculture against African-American farmers. Critics of the USDA, such as the Environmental Working Group, have called for the DOJ to audit the law licenses of all attorneys who have worked on the Pigford case, and have suggested that the lawyers’ lack of licenses cast doubt on DOJ’s handling of the litigation.
I am troubled by the allegations of misconduct by the DOJ lawyers, but not for any reason related to their bar licenses. My beef is that the government lawyers have committed the classic mistake of thinking that, insofar as they are acting as lawyers, they must be acting as advocates. If we accept the allegations of many black farmers, watchdog groups, and large law firms that are handling some of these cases pro bono, it appears that the Justice Department lawyers have treated what was designed as a relatively streamlined claims-processing framework as a full-on adversarial trial. The claims process at issue resulted from a lawsuit filed by a class of African-American farmers who had experienced racial discrimination in the administration of farm loans and other USDA programs. The litigation was terminated by a consent decree which created a two-track process for resolving claims. Track A plaintiffs were entitled to recover $50,000 upon a fairly low showing of having farmed during the relevant time period and having been treated differently than a similarly situated white farmer. Track B plaintiffs were entitled to recover actual damages if they could establish their entitlement to these damages during a quasi-judicial administrative hearing.
According to the Environmental Working Group, only 10 percent of Track B plaintiffs have recovered anything through the claims process. The Agriculture Department has fought these claims vigorously — the Justice Department lawyers representing the USDA have spent 56,000 hours challenging the claims of 129 farmers. The government filed far more challenges to the Track B claims than had been anticipated, and met the claims with numerous motions and evidentiary objections. In short, the USDA, and the DOJ lawyers, treated the farmers as adversaries rather than as legitimate claimants to a fund established to redress the discrimination they suffered.
Most of what I know about this litigation comes from press coverage which may be incomplete, and it may turn out that the government lawyers didn’t behave badly after all. The main point of this post, however, is to highlight how the discourse of ethics can sometimes distract from the real ethical issue in a case. The Monterrey Herald focuses on the lawyers’ conduct of practicing without a license — undoubtedly professional misconduct, but not the real reason anyone is mad at these lawyers. If the DOJ lawyers had treated the farmer-plaintiffs fairly in the claims-resolution process, there would be little attention paid to the unauthorized practice issue. But the UPL violation creates a clear hook for the evaluation of the lawyers’ conduct as "unethical," even while it misses the more important ethical problem.
I call this general pattern the ethics of ticky-tacky, after the basketball term for a foul called by a referee that doesn’t really interfere with the opposing player. A ticky-tacky foul is technically a foul, but good referees avoid calling them, and focus on conduct that threatens to hurt other players or to interfere with the flow of the game. A great deal of public discourse about ethics generally, and legal ethics in particular, has the quality of ticky-tacky fouls. From time to time I’ll post on this subject, which has always struck me as an odd feature of our talk about ethics.