Tuesday, May 22, 2007

What is the New York Times Rule?

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 51052rageagainstthemachinepostersstated, 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?

* Poster courtesy of AllPosters.com.  Click on it for ordering information.


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I appreicate the correction by Jeff but I do not understand his point. Is that people do not observe the version of the rule attributed to me or that I have simply misstated the rule. If it is the latter, what does this have to do with how people behave?

Some specifics:

1. My use of the term the "NYTs rule" referred to a precise statement -- not mine -- of a colleage's policy -- do not write it down unless you would want to see it on the front of the New York Times. Moreover, it was absolutely presented as source of "cover-up and evasion." I believe it is a policy followed by many law professors, administrators, and attorneys. I have observed it in all three contexts. Perhaps Jeff's beef is that it is not the "official" rule which has a more positive message but that hardly gets to the point. The important issue is whether people live by the rule as stated by my colleague.

2. I am not sure what Jeff means when he says he has not met anyone who "uses" the form of the rule attributed to me. This could mean he does not know anyone who follows the rule of only writing down those things for which he or she would will willing to give up deniability. That seems impossible. Or, he could mean no one ever states the rule in that way in which case it's nice to have things clarified but it hardly touches the substance.

3. The Rule as stated to me was as I quoted it. It is not my recasting or interpretation. One good reason for writing things down is that what was said can be confirmed.

4. Yes, writing is more formal but the rule, as I understand it, does not require one to write anything down. All is says is do not say it unless you would be willing to be held accountable. In other words, don't be slimly just because you might get away with it.

3. Big law firm. I guess I hit a nerve here so much so that it was lost on Jeff that "big law firm" was included in a list of possible sources. I have seen it, however, followed in big law firms as I suspect it is followed in many contexts in which people learn that it is to their benefit to be slippery.

Posted by: Jeff Harrison | May 22, 2007 10:46:06 AM

Yes, Jeff H. raises a couple of good points. I really just wanted to point out the nuances of the oral versus written question, not argue the substantive point about whether people can be slippery. Obviously they can.

It's the reported version of the NYT rule to which I object. And it's the reported version, not Jeff, that has apparently corrupted the usage from ethical adage to evasion device.

And I can't speak for to the circumstance; no doubt some people follow the corrupt version of the rule. I'm just not as quick to condemn a hesitation about putting things in writing. Yes, the refusal can be a denial of accountability. But sometimes the refusal to put something in writing is really a way of backing off a point that was too strong, or wrong (although the refuser should say so). And committing something to writing DOES mean it is permanently on the record, so it is entitled to more thought and consideration in the creation.

One of our officers once asked me for a legal view on a subject. The call was one of art, not science, and was mixed law and fact. I said, "You give me the facts, and I'll give you my best view on the subject." I came to a conclusion. Then he asked me to confirm it in an e-mail. I told him to get stuffed. I said, "This is a decision we just made as a team, not as the formal process of seeking a law firm opinion. I don't know why you want this, but it feels like CYA to me, and I don't do CYA. Now, if you want to write out a formal request for an opinion, I scour the facts closely, do some research, and then I give all the usual disclaimers that go with a legal opinion, I suppose that would be fair, but it is a freaking waste of time. I am trusting you to give me all the facts, and you are going to have to trust me to adjudge them correctly, and if that doesn't work for you, tough." I don't think I was being slippery; I would stand by the decision any place any time. I just thought the request for a writing was both inefficient and a breach of trust.

Posted by: Jeff Lipshaw | May 22, 2007 11:35:31 AM

I wish Jeff and I had had this communication before my colleage had said he followed the New York Times rule of never writing down anything he would not want on the front page of the NYTs. I would have loved to have been able to inform him of the actual NYTs rule which he, by that time, was way of of line with.

I think there are exceptions to the rule (the bad, not the good NYTs rule) but I am not sure Jeff's is one of them nor is his a case of being slippery. I could classify the example as one in which he refused to write down something that was only part of the story, which it would have been had he written an acontextual version of the interaction.

An instance in which I obverse the rule (again the bad one) would be when the communication, if made public, could be personally hurtful without any benefit either by virtue of solving the problem or deterring future undesireable actions. Here I am think of colleague (hypothetical as far as I know) with an alcohol problem that becomes severe enough that it needs to be raised with friends or and administrator.

Posted by: Jeff Harrison | May 22, 2007 12:59:52 PM

Judge William Bauer of the United States Court of Appeals for the Seventh Circuit had his own version of the rule -- Never write anything that you wouldn't want a grand jury to read.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 22, 2007 6:57:56 PM

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