In Freedman v. D.C. Department of Human Rights, D,C.C.A. no. 96-CV-961 (Sept. 1, 1998) I argued before the D.C. Court of Appeals that the actions of the attorney managers of my former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld, should be held to a higher standard than the actions of non-attorney managers or employers.
1. Regarding Akin Gump's alleged ex parte consultation with a psychiatrist who reportedly advised two of the firm's attorney managers that a harassment complaint I had lodged against coworkers was the product of a psychiatric "disorder," I wrote (in part):
Assuming that Lassman and Race in fact consulted Dr. Ticho, it is questionable whether two experienced attorneys such as Lassman and Race, knowledgeable about the factors that might detract from the weight of a professional opinion, could credibly have believed that a complaint of harassment by an employee--with no preexisting record of prior behavioral problems--could be attributed to a psychiatric symptom associated with a risk of violence that rendered the employee not suitable for employment: and then, simply on the basis of a brief telephone conversation with a psychiatrist who never examined the employee personally.
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Whether or not the employer's attorney managers were aware of the APA's position concerning psychiatric opinions offered without benefit of personal examination, DHR's finding that the employer's attorney managers--skilled in the art of impeachment of expert witnesses and therefore sensitive to the limiting circumstances that can bias an expert professional opinion--could have reasonably concluded, on the basis of the employer's restricted consultation with Dr. Ticho, that appellant's complaint of harassment was attributable to a psychiatric symptom associated with a risk of violence that rendered appellant not suitable for employment is simply "unworthy of credence." See Burdine, 450 U.S. at 256.
2. In the Brief on Appeal I pointed out that it is questionable whether the firm's managers -- all able attorneys -- could have formed a good-faith belief that a complaint of very subtle job harassment is baseless as evidence of a hostile work environment. Note that Dennis M. Race, Esq., the attorney who fired me, started his career at the Office of Solicitor of The U.S. Department of Labor, while the firm's managing partner, Laurence J. Hoffman, started his career at the National Labor Relations Board.
In footnote 9 of the Brief on Appeal I wrote:
Appellant's complaint of harassment to the employer concerned very subtle harassment. While an unsophisticated, nonlegal employer might plausibly deem an employee's complaint based on such harassment unbelievable, it is far less convincing that knowledgeable attorney managers of a major law firm would credibly find appellant's harassment complaint "baseless as proof of sexual or religious harassment" [Rec. 138]. In fact, a complaint based on subtle harassment is legally cognizable. At least one court (in a foreign jurisdiction), noting that "sexual harassment based on the creation of an offensive, hostile and intimidating environment . . . can take many forms and is often very subtle," has permitted expert testimony to illuminate for the finder of fact the nature of plaintiff's work environment and the sexual connotations of seemingly trivial events. Eide v. Kelsey-Hayes Co., 397 N.W.2d 532, 538 (Mich. App. 1986).
Perhaps it is part of Akin Gump's southern cultural roots to "play dumb" before judicial tribunals. I am reminded of the self-attribution of the late North Carolina Senator, Sam Ervin -- a graduate of Harvard Law School -- who used to say, "I'm just a simple country lawyer."
In fact, the U.S. Court of Appeals for the Fourth Circuit in 1991 specifically admonished Akin Gump's attorneys for implicitly attempting to discount their legal acumen and expertise. U.S. v. Moore, 931 F.2d 245 (1991).
In a criminal matter involving the interpretation of a plea agreement the Court said:
"[Defendant] Moore has claimed that the 'spirit' of the plea agreement was violated because the United States sought a 'severe prison term' and made 'a transparent effort to influence the severity' of Moore's sentence.' The plea agreement, however, did not restrict the prosecutors as he suggests and, given the sophistication of both defendant and counsel, the argument of plea agreement violation is without merit.
[Akin Gump] Defense counsel [the late William Hundley and Richard N. Wiedis] [have] made the argument that the 'spirit' of the deal was violated. In the case of an unsophisticated or underrepresented defendant, we might be inclined to take a less literal view of the terms of the plea agreement, but there is no adequate reason why Moore, represented by very able counsel, should not be held to his word. Governor Moore did not have a reasonable basis to believe that the prosecutor's promise to refrain from recommending a specific sentence protected him from remarks calculated to induce the Court to issue a severe prison term."
No, Akin Gump's attorneys are not simple country lawyers. Some of them might be compulsive and clumsy liars, but they are not simple country lawyers.