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October 6, 2011 2:24 PM

Crowell Hit with Ethics Complaint Over Inbreeding Comment

Posted by Brian Baxter

UPDATE: 10/7/11, 10:58 a.m. EDT. A federal judge in Washington, D.C., has ruled in favor of West Virginia state regulators and coal industry lawyers from Crowell & Moring and Bailey & Glasser in a fight against tougher EPA controls on mountaintop mining. The Am Law Litigation Daily has more on the decision.

Crowell & Moring has been hit with an ethics complaint over a controversial client memo issued earlier this year in response to an academic study exploring possible links between mountaintop coal mining and birth defects in the Appalachian region.

Jason Huber, an Appalachia native and assistant professor at the Charlotte School of Law, filed the complaint on Tuesday against four Crowell lawyers with the Office of Bar Counsel in Washington, D.C.

At issue is a three-page critique of a study conducted by researchers from West Virginia University and Washington State University posted on Crowell's Web site on June 28 in the form of a client memo. (Click here for a copy of Huber's 58-page complaint, which includes the Crowell memo and other attached exhibits.)

The study in question concluded that Appalachians who live in areas near sites affected by the controversial process of mountaintop removal mining are more prone to suffer from birth defects than those who do not.

The Crowell critique—authored by D.C.–based partners Clifford Zatz, William Anderson, and Kirsten Nathanson, along with counsel Monica Welt—criticized the study's methodology, claiming that it lumped an array of unrelated birth defects together while discounting similar incidence rates in areas unaffected by mountaintop mining.

The Crowell lawyers—all of whom handle torts, product liability, and environmental matters—also wrote that the study "failed to account for consanquinity [sic], one of the most prominent sources of birth defects." Local news reports at the time noted that consanguinity, the correct spelling for a word that refers to the interrelatedness of people who share a common blood line, is no more prevalent in Appalachia than in other areas of the country.

When a storm of protests followed, Crowell yanked the controversial memo off its site and apologized to those it had offended. Amid the uproar, news reports noted Crowell's ties to the National Mining Association and top mining industry clients like Massey Energy—a company that was sold earlier this year to Alpha Natural Resources in a $7.1 billion cash-and-stock deal.

Reached by phone Thursday, Huber told The Am Law Daily that he filed the ethics complaint because the Crowell lawyers "ran afoul of their ethical and moral obligations as attorneys in soliciting business from the mining industry" through their criticism of the birth defects study.

The Crowell memo, Huber says, contained "material misrepresentations about the Appalachian people," which he feels should lead to some professional sanctions against the lawyers involved.

"Any reasonable person would be offended when you have this type of lawyer advertising that contains these type of misrepresentations in order to solicit business to advance their own pecuniary interest," adds Huber, who has taught at Charlotte law school for the past three years.

Before heading to Charlotte, Huber held a two-year teaching fellowship at the University of Chicago's Edwin F. Mandel Legal Aid Clinic and spent 11 years practicing at two-lawyer Forman & Huber in Charleston, W. Va., where he focused on public interest and civil rights litigation.

For its part, Crowell claims Huber is misguided in seeking sanctions against its lawyers over an online alert that was not meant to offend anyone, was quickly removed, and for which the firm has apologized.

"The complaint seeks to convert routine scientific debate into an ethical issue, and it is baseless," Crowell said in a statement provided by a firm spokeswoman. "Our client alert identified several scientific considerations relevant to birth defect studies. We regret that Mr. Huber has chosen to revisit this issue long after we withdrew the communication and apologized for any offense it may have caused in July."

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Highlighting that the law firm could not even spell the word correctly on its own website should be punishment enough. Would you really want to hire them to do anything complicated?

I think the appropriate punishment would be to have Jesco White give them a sensitivity seminar.

Even among lawyers, stupidity usually is not unethical unless it rises to the level of malpractice. Mr. Huber's grandstanding complaint itself raises serious ethical issues.

If the paper did not even dismiss with consanguinity in a footnote, then it seems like that is a legitimate criticism. That popular assumption would lead those who are intelligent and interested to wonder why that potential factor had not been at least addressed.

And who is even listening to this professor? He should sue every person that expresses a view that might fall in line with a business interest using the logic he's given. He belongs in Britain, where the lack of the freedom of speech is used to stifle scientific and intelligent discourse.

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