Tuesday, May 22, 2007
Posted by Jeff Lipshaw
My MoneyLaw co-blogger Jeff Harrison has a riff on Attorney General Gonzales, but what was more interesting was his take on the New York Times rule, as well as the attribution of its source. His interpretation of it recasts what is widely considered to be a nice intuitive test of ethics as a source of cover-up and evasion. I have never run into anybody who uses Jeff's version: "don't write anything you wouldn't want published in the New York Times."
The New York Times rule (also known as the "Front Page of the Newspaper" Test) should properly be stated, in its broadest sense, as "don't do anything you wouldn't want published on the front page of the New York Times." That's a hard standard in the business world, because even there we consider some of our physical acts and speech acts to be public and some to be private. And there is a place, I think, even
in that environment for private acts that in themselves might be embarrassing or half-baked or even wrong, but which are not normatively or legally actionable as long as they are not public (I am glad there is no "YouTube" of my initial reaction, in the privacy of our office, to some events, say, like getting sued by a competitor in what I thought was a baseless, bad faith attempt to leverage us. I was certainly using words and allusions that I would not want attributed to me on the front page of a newspaper.)
Having said that, the distinction between private and public is a matter of degree, and so if you say it in a forum where you are not absolutely sure it's private (a conference of the Supreme Court justices? a meeting between lawyer and client? off the record on deep background between source and reporter? a corporate board room? an employee performance evaluation? pillow talk between husband and wife?) you are subject to the Sicilian maxim that a secret is only that which nobody else knows. So when you are in a board meeting, or an office hallway, you need to think about what you are doing, not just what you are writing. (For further evidence of this, see the Sullivan & Cromwell "gay bashing" case - an instance where the NYT rule was allegedly violated by abusive verbal words and action, not writing.)
And finally, writing conveys a sense of formality and completeness that most ordinary speech does not (but contrast highly prepared, highly public, or highly formal verbal speech). Most of us don't go through life as though every verbal comment is to be transcribed, and dissected and analyzed and read back to us by way of instrumental argumentation, particularly when we have opponents, competitors, or even enemies. (See Habermas on communicative action.) That's the danger of e-mail or blogging or chatboards, which have the effect of writing, even though they are used as verbal speech.
Finally, why "big law firms"? Is there empirical MoneyLaw-worthy evidence that big law firms are more dishonest than small law firms? Than postal employees? Than mathematics professors? Waste haulers? Than mom and pop? Do lawyers in small firms more often waive privilege on behalf of their clients? Not "woodshed" their witnesses before trial?
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