Tony LaRussa's Rejection of Zealous Advocacy

Jeff Lipshaw started a great discussion over at the Legal Profession Blog about Tony LaRussa's decision not to require an inspection of Kenny Rogers while Rogers was on the pitching mound during the second game of the World Series. 

Let's assume, as Jeff did, that if the inspection had occurred while Rogers was on the mound, the umpires would have found pine tar on Rogers's hand and that Rogers would have been tossed from the game and suspended for the rest of the Series.  Let's also assume that LaRussa, who happens to be a lawyer, decided not to take advantage of this opportunity, because he "didn't want to win that way" against his good friend, the manager of the Tigers.  (Both assumptions are strongly supported by news stories.)   

Using legal ethics as an analogy, I believe that LaRussa made a mistake.  In my mind, the most appropriate legal ethics analogy would be if a lawyer produced discovery but intentionally withheld a smoking gun document.  This lawyer ("the producing lawyer") cheated and didn't play by the rules.  Now let's assume that the recipient of the discovery ("the receiving lawyer") comes to learn of the producing lawyer's rule violation.  Is there any doubt whatsoever that the receiving lawyer should march directly into court and seek severe sanctions against the producing lawyer?  Certainly, the receiving lawyer should not call the producing lawyer and say, "I just learned that you didn't give me some documents that were directly responsive to my document requests.  Would you mind sending me a copy?  Get them to me tomorrow, and we won't need to mention this to the court."  The latter course wouldn't be justified, even if the receiving lawyer was good friends with either the producing lawyer or some partner at the producing lawyer's firm.

Personally, I am not a believer in the zealous advocacy model in its purest form, but I do think zealous advocacy plays an important role in lawyering.  And it seems to me that zeal is particularly appropriate in response to an opponent who engages in rule-breaking behavior in order to gain a tactical advantage in litigation. 

Is my analogy appropriate?  Is there another legal ethics analogy that would actually support LaRussa's decision not to act in his team's best interests?

Comments

[John Steele]

It's an interesting topic, Andy.

There may be a lot of embedded wisdom in "The Code," and if in fact La Russa was following The Code, how can we fault him for following the norms of the game? From the article:

"La Russa's answer invoked (though never specifically mentioned) 'The Code' — the unwritten rules of conduct in baseball that describe, for example, when it is proper to retaliate for a beanball, when a manager should ask the umpires to inspect a pitcher with pine tar on his hand and when he should look the other way."

BTW, for those who like the use of baseball analogies for legal ethics, try the writings of Jack Sammons.

[KFR]

Well first of all, baseball does not have a code. Unless by code you mean a culture that allows cheating until you get caught...caught by the umps or the other team. Larussa was not following the norms of the game. The norms of the game are, when the other team finds about cheating, it jumps all over it - especially in the World Series. Nor did Larussa follow the norms of Larussa. He is ruthless, cunning, and always looking for an edge. He didn't hold off because he is buddies with Leyland. My guess is he caved because "baseball" has decided it doesn't want cheating headlines when they are "moving on" from steroids.

[Jack Marshall]

My personal theory, based on both his conduct and his "I don't want to win that way" explanation for not demanding a search of Rogers, is that LaRussa has embraced a corrupted concept of what constitutes cheating in baseball. He said that "everyone is looking for a little edge" and suggested that to penalize a player and a team for doing what he would do himself is hypocritical. LaRussa was the mangaer of the Oakland As when steroids were taking hold of his clubhouse and the game (A's player Jose Canseco being the primary contagion); he was also managing Mark McGwire in St. Louis when his steroid-assisted chase of Roger Maris was going on. I think LaRussa is in the process of rationalizing his passive assent to all this as simply seeking an "edge," and conceivably even feared exposure as a hypocrite by someone who knows that he was hardly unaware of the juicing in his clubhouse, as he has improbably claimed. If he didn't go after Rogers because of his friendship with Tigers manager Jim Leland, it's 1.7 he was violating, not just zealous representation.
I wrote an essay on this issue on my ethics commentary site at http://ethicsscoreboard.com/list/larussa.html for anyone who is interested.

[Dave]

More Interesting Scenario
Interesting analysis of the hypothetical situation. Let's consider another scenario. Attorney A engages in clear and provable misconduct while opposing Attorney B. The client of Attorney B decides that his firms existence requires that the maximum exposure, penalty, and possible retribution is pursued related the misconduct of Attorney A.
Attorney B makes a small percentage of his annual gross from this client. Attorney B believes that if he gets Attorney A in trouble, B's business will suffer from "breaking the code" - getting another lawyer in trouble. These lawyers exist within a very small and very profitable specialty which is highly geographically concentrated.
My impression is that Attorney B's "moral question" is trumped by his legal obligation and oath to zealously represent his client and ethical duty to never avoid adverse representation. But we all know what happens. Attorney B protects his "brother", Attorney A.

Wouldn't this be RICO conduct? Does there exist a prosecutor (oops, another lawyer) who would take any action against A or B?
Here is one that won't:

http://public-issues-news.blogspot.com/2006/11/lawyer-practicing-in-new-york-admits.html

[Dave O'Donnell]

Odd that the above link was somehow edited. Here it is again
describing Eliot Spitzer a/k/a Eliot Snoozer :

http://lawyersunregulated.blogspot.com/2006/11/eliot-snoozer.html