Don't let focus on victory blur ethical obligations

Issue January/February 2017 By Richard P. Campbell and Suzanne Elovecky

In many respects, trial practice is like professional athletics. Talented, highly compensated and driven individuals compete against each other with the knowledge that victory or defeat is the ultimate outcome of the contest. Sometimes the competitor operates singularly; more often, however, the competitor is part of a team of like minded and equally talented individuals.

As in professional sports, trial practice is played out in conformity with established rules and against a time clock that inexorably runs its course and terminates the contest. But, unlike professional athletes, trial lawyers are officers of the court and hearken to a higher calling than pursuit of victory alone. The integrity of the court and its processes and, indeed, the search for truth, are core values imparted to all lawyers who practice in this field.

In the first paragraph of the preamble to the Rules of Professional Conduct, we are instructed that "a lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice." Rule 3.3 mandates candor toward the Court, prohibiting false statements of material fact or law and failure to disclose material facts. Rule 3.4 requires fairness to the opposing party and counsel and prohibits obstruction of access to evidence or the unlawful alteration, destruction, or concealment of "a document or other material having potential evidentiary value."

When trial lawyers focus only on victory and lose sight of their primary role as officers of the court and public citizens with special duties for the quality of justice, trouble follows. The risks are great; the fall from prominence to ignominy is swift, particularly for the high and mighty.

Donovan Leisure Newton & Irvine was a white-shoe, Wall Street law firm founded in 1929 by General William "Wild Bill" Donovan, often called the "Father of the CIA." In the late 1970s, it was one of the top five or six law firms in New York City with upwards of 200 lawyers in its employ. It was well known and highly regarded for its defense of antitrust cases and became infamous for its handling of Berkey Photo, Inc. v. Eastman Kodak. Donovan Leisure's lead trial counsel on the Berkey Photo antitrust case was John Doar, the former counsel for the House Judiciary Committee during President Nixon's impeachment.

Mahlon F. Perkins, Jr., a 59 year old patrician and senior partner was one of the 30 lawyers assisting Mr. Doar. Mr. Perkins, the son of a United States diplomat, attended Phillips Exeter Academy, Harvard College, and Harvard Law School (where he was an editor of its Law Review). He lived most of his adult life in the rarified borough of Greenwich, Connecticut.

In the course of discovery, Berkey's lawyers demanded production of specific documents including correspondence by a key Kodak witness. Mr. Perkins filed an affidavit in response averring that that the documents as been destroyed. In fact, he still had possession of them in his Manhattan office.

Days before final argument, Mr. Doar announced in open court that an entire suitcase of documents had not been destroyed as Mr. Perkins had testified. In his closing, counsel for Berkey described the events as a "sordid spectacle of dissembling, evasiveness, deception and concealment that disgraces the dignity of this court, this proceeding, and you jurors." The jury's trebled award totaled $112.8 million. Kodak fired Donovan Leisure. Some observers believe that the Kodak case ultimately led to the failure of the law firm in 1998. Donovan Leisure separated its ties with its senior partner. More importantly, however, Mr. Perkins was charged and convicted of contempt of court and sentenced by a federal judge (and classmate) to a month in jail.

Mahlon Perkins somehow successfully defended disbarment proceedings. But he never worked at a Wall Street law firm again.

In a great story of redemption and revival, Mr. Perkins spent the balance of his career working part time at the Center for Constitutional Rights and for a small Manhattan law firm, and volunteering in Greenwich for the symphony orchestra, the library, the United Way, the National Association for the Advancement of Colored People, the Audubon Society. See D. Margolick, LAW; The Long Road Back for a Disgraced Patrician, NY Times, January 19, 1990.

Richard P. Campbell is a fellow of the American College of Trial Lawyers and a past president of the Massachusetts Bar Association. He founded Campbell Campbell Edwards & Conroy, P.C., a firm with a national practice, in 1983.

Suzanne Elovecky practices at Todd & Weld LLP, where she enjoys a diverse complex commercial litigation practice representing individuals and corporations in contract disputes, employment disputes, automobile dealership matters, shareholder disputes, and trademark, trade secret and copyright disputes.  Suzanne is a member of the Women's Bar Association, the Boston Bar Association, and the Massachusetts Bar Association (Complex Commercial Litigation Committee; Professional Ethics Committee).

Other Articles in this Issue: