Thursday, February 17, 2011

Akin Gump: The Actions of Lawyers are Held to a Higher Standard Than Those of Laymen

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.

* * * * *

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.


Gary Freedman said...

In his final book, Moses and Monotheism, completed in 1939, Freud speculates on the origins of the Jewish religion and the traits of the Jewish people. He offers the theory that it was the man Moses who stamped the Jews with his particular character.

By wide extension, Freud is arguing that the personality of any organization's founder will form an important part of the "culture" of the organization, and that the founder's traits will be passed down over the generations.

Applying Freud's theory, we might say that embedded in the culture of Akin Gump are the personality traits of it's founder, Robert S. Strauss.

It's interesting that in interviews Bob Strauss likes to portray himself as having been a poor student. He seems to describe himself as "a simple country lawyer." The truth is that he is an acutely shrewed individual with a keen intellect.

Gary Freedman said...

Moses and Monotheism by Sigmund Freud

We may start from one character trait of the Jews which governs their relationship to other people. There is no doubt that they have a very good opinion of themselves, think themselves nobler, on a higher level, superior to the others, from whom they are also separated by many of their customs. With this they are animated by a special trust in life, such as is bestowed by the secret possession of a precious gift; it is a kind of optimism. Religious people would call it trust in God.

We know the reason for this attitude of theirs and what their precious treasure is. They really believe themselves to be God's chosen people; they hold themselves to be specially near to him, and this is what makes them proud and confident. According to trustworthy accounts, they behaved in Hellenistic times as they do today. The Jewish character, therefore, even then was what it is now, and the Greeks, among whom and alongside whom they lived, reacted to the Jewish qualities in the same way as their "hosts" do today. They reacted, one might think, as if they too believed in the preference which the Israelites claimed for themselves. When one is the declared favorite of the dreaded father one need not be surprised that the other brothers and sisters are jealous. What this jealousy can lead to is exquisitely shown in the Jewish legend of Joseph and his brethren. The subsequent course of world history seemed to justify this Jewish arrogance, for when, later on, God consented to send mankind a Messiah and Redeemer, he again chose him from among the Jewish people. The other people would then have had reason to say: "Indeed, they were right; they are God's chosen people." Instead of which it happened that the salvation through Jesus Christ brought on the Jews nothing but a stronger hatred, while the Jews themselves derived no advantage from this second proof of being favored, because they did not recognize the Redeemer.

On the strength of my previous remarks we may say that it was the man Moses who stamped the Jewish people with this trait, one which became so significant to them for all time. He enhanced their self-confidence by assuring them that they were the chosen people of God; he declared them to be holy and laid on them the duty to keep apart from others. Not that the other peoples on their part lacked self-confidence. Then, just as now, each nation thought itself superior to all the others. The self-confidence of the Jews, however, became through Moses anchored in religion; it became a part of their religious belief. By the particularly close relationship to their God they acquired a part of his grandeur. And since we know that behind the God who chose the Jews and delivered them from Egypt stood the man Moses, who achieved that deed, ostensibly at God's command, I venture to say this: it was one man, the man Moses, who created the Jews. To him this people owes its tenacity in supporting life; to him, however, also much of the hostility which it has met with and is meeting still.

Gary Freedman said...

From an interview of Bob Strauss:

Were you a good student?

Robert Strauss:
Terrible. I don't think I was stupid. I never really studied much. I never had a great interest. As a matter of fact, I never had intellectual interests as I was growing up, and I was not a good student going through school and through law school.

I was always in the bottom half of the class instead of one of the stars.

I used to envy people who had intellectual interests that I didn't have and who had intellectual competence or academic competence in areas I didn't have. It wasn't until I was much older, in my twenties -- after I got my law degree and was even practicing law -- that I realized that while most of the people that I went through school with could write a better legal brief than I could write, or could draw better documents than I would prepare, but the strange thing was the clients came to me instead of them. I learned along the way that I had judgment, and that I had a certain character and integrity that attracted people. I had a warm personality. I liked people, they liked me. I learned then that instead of sitting around, envying people who had strengths I didn't have, that I ought to play to my own strengths and quit being paranoid about these other people. I used to resent the fact that they could do those things. Later, I came to realize that they had their strengths, which were certainly valuable and of great value to them, but I had strengths that seemed to attract people who not only wanted a lawyer who understood the law, but they wanted someone who had judgment, and who they could trust and who they felt had integrity. Those were my strengths, and I would play to them. So I quit worrying about others and played to my own strengths and didn't worry about my weaknesses. I have had continued success onceI came to grips with that, and was at peace with my strengths and not disturbed by my weaknesses.

Gary Freedman said...

Rich Wiedis was admonished by a federal appeals court judge for playing dumb in a judicial proceedings: