After reading Sleazy in Seattle (click to access), please comment here to each of the following ques

  

After reading Sleazy in Seattle (click to access), please comment here to each of the following questions:How does the behavior of the attorneys at Bogle and Gates raise concerns about legal ethics in this case? Include specific examples from the discovery process.What do you think of the attorney’s duty to “zealously advocate” for their clients in this case? Do you agree with the experts that the behavior of the law firm was appropriate and responsible, or do you agree with Washington State Supreme Court’s interpretation, and why?Reflect on your course UCOR 2910: “Ethical Reasoning in Business,” or any other ethics course you took in the UCOR. Depending on when you took it, and who your professor was, you may have used different terms or a different framework to think about ethical values. But you likely can at least appreciate these five values:Autonomy: a person’s ability to govern herself and to order her own life (as the ethicists say, to be an ‘end in herself’) implies that she must not be used as a means to an end that she did not choose (most closely associated with deontology)Non-pain/Pleasure: an person’s capacity to experience pain or pleasure implies that I must not cause him pain unnecessarily (most closely associated with utilitarianism)Equality: a person must not be regarded or treated as inferior to or superior to other personsCooperation: when people cooperate, they form trust, and living in a high- trust environment makes possible many of the things we associate with a good life (most closely associated with contractarianism)Character Excellence: I should want to be the kind of person who enjoys doing ethical things and doesn’t enjoy doing unethical things. If so, I am a person with an excellent or virtuous character, and this is widely regarded as a source of personal well-being. However, by doing unethical things, I may harm or corrupt my own character (most closely associated with virtue ethics)Which values would you focus on if you were a manager at Fisons, the pharmaceutical company in the case? What course of action would you have taken if you were the manager and you were aware of the case specifics regarding drug testing and what the company knew about the effects of taking the drug?
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1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Sleazy In Seattle
by Stuart Taylor, Jr
D
iscovery is the bread and butter of most
big-firm litigators. But the most
important and ethically sensitive
decisions the make-choosing when and how to
avoid disclosing damming evidence to
adversaries-are almost always veiled in secrecy.
Now an anonymous whistle-blower in a case near
Seattle has helped give as a revealing glimpse into
how litigators reconcile their duties to be zealous
advocates with their duties not to be whores. It’s
not a pretty picture and it involves one of Seattle’s
largest and most prestigious firms.
The covered-up corporate document that the whistle-blower
leaked in March 1990 led to an agreement this January by
Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp.
to pay $325000 in sactions for discovery abuse, one of the
largest such awards ever. By misleading its adversaries to
avoid producing damning documents in its client’s files, Bogle
provided a textbox example of the need for discovery reforms
even more far-reaching than those that were adopted last year
by the federal judiciary-reforms that are still under attack in
Congress. (On which more below.)
What prompted the settlement was a unanimous Washington
Supreme Court decision last September 16, and the prospect
of an evidentiary hearing on remand that would have made
Bogle’s conduct look even worse than it looks in the court’s
sternly worded opinion.

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Sleazy In Seattle | Stuart Taylor, Jr.
The seven justices held that Bogle & Gates and its client, a
British-owned pharmaceutical company with U.S.
headquarters near Rochester, had used “misleading” discovery
responses to hide two I “smoking gun documents” from
lawyers for a 3-year-old girl who suffered permanent brain
damage as a result of taking a i Fisons asthma drug in 1986, as
well as from lawyers for the girl’s pediatrician, who had filed a
cross-claim against Fisons.
Since the decision, Bogle has been forced to admit for the first
time that it had had the smoking gun documents since l 1987
and had advised Fisons to withhold them-while at the same
time, in the supreme court’s words, making statements to
opposing counsel “that all relevant documents had been
produced.” These statements were accompanied by artfully
worded discovery responses that Bogle later claimed (in a
rationale rejected by the court) should have put its adversaries
on notice that relevant documents would be produced only if
found in a particular : Fisons product file
What makes the case important is not so much that one big
law firm was capable of engaging in conduct that stunk so
badly but that it was able to find 14 leading liti gation experts
to swear that this conduct smelled just fine to them, and to
persuade a special master and two superior court judges that
this is the way the adversary system is supposed to work.
It’s also remarkable that the Washington State Bar Association
is not, it con firms, even investigating the conduct of Guy
Michelson and Kevin Baumgardner, the two Bogle partners
who stand accused by opposing counsel of having made
representations (under oath, in one case) to their
representation (under oath in one case) to their adversaries
and the superior court that were “deliberately or recklessly
false and intended to deceive.” The court record bears out the
accusations.
The expert flotilla included $500-an-hour Yale Law professor

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2/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Geoffrey Hazard Jr., perhaps the nation’s most prominent
legal ethics expert [see “Hazardous Duty Pays,” page 60], and
leading Washington State litigators including ten fellows of
the prestigious American College of Trial Lawyers, of whom
two are also past presidents of the Washington State Bar
Association.
All 14 experts said that Bogle’s conduct had been nondeceptive
and ethically proper; most suggested that such conduct was
standard operating procedure in the adversary system; and
three suggested that Bogle’s conduct had been required by the
lawyers’ “ethical obligation to zealously represent their client,”
in the words of Payton Smith, chairman of the litigation
department of Davis Wright Tremaine, Seattle’s largest law
firm.
You be the judge of whether Bogle’s conduct was honest,
whether such practices are the norm, and-if they are- whether
they ought to be.
Bogle and Fisons were initially exonerated of discovery abuse
by the special master overseeing discovery in the case and by
two successive superior court judges, including Judge Stuart
French of Snohomish County Superior Court (north of
Seattle), who presided over the 1990 trial of the underlying
tort case. Judge French rejected a motion for sanctions and
signed an opinion (drafted by lawyers for Bogle and Fisons)
finding that all of the discovery responses had been
“reasonable and proper,” and that “the conduct of Fisons and
its counsel…was consistent with the customary and accepted
litigation practices in the bar of this community and this state”
Customery or not, “the conduct in this case sinks. “in the
words of Stephen Saltzburg, a George Washington University
law professor who pressed the pediatrician’s claim that Fisons
and Bogle should be sanctioned and won it on appeal. “The
conduct of Fisons and Bogle explains why so many ordinary
people have losaith in the litigation system and the adversary

Sleazy In Seattle


3/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
process, and believe that lawyers are untrust worthy,” as
Saltzburg argued in one legal brief.
BUSINESS AS USUAL?
But Bogle’s experts may have been right, I fear, insofar as they
suggested that many and perhaps even most litigators engage
under cover of darkness in the kind of conduct that is
fortuitously brought to light in this case. If so, then the
discovery process has been clogged by a culture of evasion and
deceit that accounts for much of its grotesque wastefulness,
and the adversary system has been perverted from an engine
of truth into a license for lawyerly lies.
Asked for Bogle’s comment on the case, Richard Wallis, the
managing partner, says: “It is our view that the Supreme
Court’s decision is a ‘course correction’ for the entire legal
profession…Bogle & Gates-like other firms in this state-will
now pursue discovery on behalf of our clients in a manner
consistent with this ruling. It is our position that Bogle &
Gates was, in this case, operating in good faith within the
standards of practice followed by attorneys in this state at the
time these discovery responses were made.”
Wallis stresses a speech last November in which Washington
Supreme Court justice Robert Utter characterized the decision
as “revolutionary” and said that “in fairness, it should be
noted that defense counsel…did not have the benefit of
advance notice about the court’s expansive interpretation” of
counsel’s obligations in discovery.
No such words in mitigation of Bogle’s conduct appear in the
court’s opinion.
Asked for Fisons’s comment, associate general counsel Barry
Berger said: “I have a high personal and professional regard
for Bogle & Gates, but as the documents we and they filed in
the case indicate, we essentially relied on advice of counsel…I

Sleazy In Seattle


4/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
think Bogle & Gates gave the advice in good faith and it was
relied on in good faith.”
Bogle and Fisons blame Joel Cunningham of Seattle’s
Williams, Kastner & Gibbs (who brought the pediatrician’s
cross-claim against Fisons) and the injured child’s lawyers
(including Paul Lu-vera, the top plaintiffs lawyer in the state)
for the decisions by Bogle and Fisons no to hand over the
smoking gun documents.
Cunningham “had only himself to blame,” William Helsell of
Seattle’s Helsell, Fetterman, Martin, Todd & Hokanson, who
represented Bogle & Gates and Fisons in the sanctions
proceeding, told the state supreme court. Helsell, a muchadmired leader of the Seattle bar and Bogle’s litigation experts
claimed that Cunningham and the injured child’s lawyers
failed to ask the right questions or to press their adversaries
hard enough for responsive answers.
Did they? Read on
THE UNDERLYING FACTS
In January 1986, 3-year-old Jennifer Pollock, a child with
multiple health problems, suffered seizures and permanent
brain damage as a result of being treated with Fison’s
Somophyllin Oral Liquid for her serve lung disease (including
asthma) at a time when she also had a viral infection. The
product’s main active ingredient is a generic drug called
theophylline. The cause of Jennifer’s brian damages was (the
litigation established) that the theophylline in her blood
soared to toxic levels as a result of ther viral infection.
Jennifer’s parent filed a products liability suit against Fisons
along with a malpractice suit against Dr. James Klicpera, the
Everett, Washington, Pediatrician who had prescribed the
drug. He and his insurer cross-claimed against Fisons,
alleging that the company had known, and had failed to warn

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1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
him, that theophylline posed a serious risk of nervous system
damage when used to treat children with viral infections.
Fisons defended on the grounds that (among other things) it
had disclosed all known risks, and that Dr. Klicpera had
caused Jennifer’s injuries by negligently failing to monitor her
theophylline levels and prescribing an overdose.
In October 1986 Cunningham, Dr. Klicpera’s counsel, served
Fisons with four brief requests for production of documents,
including this: “Produce genuine copies of any letters sent by
your company to physicians concerning theophylline toxicity
in children.”
SMOKING GUN NO. 1
This fit one of the smoking gun documents like a glove: a June
1981 letter sent by Fisons’s manager of marketing and medical
communications, Cedric Grigg, to a select group of 2,000
physicians around the country (not inducing Dr. Klicpera).
Addressed “Dear Doctor,” and entitled “Re: Theophylline and
Viral Infections,” the letter warned that it “can be a capricious
drug,” Grigg stressed a published study showing “lifethreatening theophylline toxicity when pediatric asthmatics
on previously well tolerated doses of heophylline contract viral
infections.” The letter, which was approved by high-level
Fisons executives, promoted another Fisons product for
treatment of asthma, called Intal, as safer than competing
drugs based on theophylline.
The document certainly sounded like it came within the
discovery request. And here is how Fisons’s November 1986
discovery response, prepared by Bogle lawyers, read: “Such
letters, if any, regarding Somophyllin Oral Liquid will be
produced at a reasonable time and place convenient to Fisons
and its counsel of record.” (Emphasis in original.) So you
might think the letter would be produced.

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1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
But in fact, Fisons and Bogle-which says it first learned in
March 1987 about the 1981 Grigg smoking gun letter-decided
not to produce it, then or ever. And later, they argued that
they had acted properly because they had had no obligation to
produce it. (See if you can guess the Fisons-Bogle rationale;
then look under the “Rationales for Concealment” subhead
below to see if you were right.)
Cunningham, the pediatrician’s lawyer, says (as did Jennifer
Pollock’s lawyers) that Fisons and Bogle misled him into
believing that there were no documents responsive to his
request.
“I expected that I would get an honest answer to an honest
question,” he recalls. But he did not get the 1981 Grigg letter
until March 15, 1990-some 40 months after his request, and
three years after Bogle got the letter-when the anonymous
whistle-blower sent it to Cunningham via U.S. mail. By that
time, Bogle and Fisons had parried many more discovery
requests, and Dr. Klicpera had settled the brain-damaged
child’s malpractice suit for what amounted (after various
contingencies) to a $500,000 payment by his insurer.
The leak of the 1981 Grigg letter prompted the courtappointed special master in charge of discovery in the case,
Peter Byrnes, to demand on March 28, 1990, that Bogle and
Fisons stop playing games and hand over-the next day-any
other theophylline-related documents of which they had
copies at hand. (Byrnes, a former Bogle & Gates partner, was
chosen with Cunningham’s assent.)
Byrnes said that Fisons’s “nonresponse” to Cunningham’s
request was “troubling,” but that “the plaintiff was not witho…
Discovery is the bread and butter of most big-firm litigators.
But the most important and ethically sensitive decisions the
make-choosing when and how to avoid disclosing damming
evidence to adversaries-are almost always veiled in secrecy.

Sleazy In Seattle


7/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Now an anonymous whistle-blower in a case near Seattle has
helped give as a revealing glimpse into how litigators reconcile
their duties to be zealous advocates with their duties not to be
whores. It’s not a pretty picture and it involves one of Seattle’s
largest and most prestigious firms.
The covered-up corporate document that the whistle-blower
leaked in March 1990 led to an agreement this January by
Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp.
to pay $325000 in sactions for discovery abuse, one of the
largest such awards ever. By misleading its adversaries to
avoid producing damning documents in its client’s files, Bogle
provided a textbox example of the need for discovery reforms
even more far-reaching than those that were adopted last year
by the federal judiciary-reforms that are still under attack in
Congress. (On which more below.)
What prompted the settlement was a unanimous Washington
Supreme Court decision last September 16, and the prospect
of an evidentiary hearing on remand that would have made
Bogle’s conduct look even worse than it looks in the court’s
sternly worded opinion.
The seven justices held that Bogle & Gates and its client, a
British-owned pharmaceutical company with U.S.
headquarters near Rochester, had used “misleading” discovery
responses to hide two I “smoking gun documents” from
lawyers for a 3-year-old girl who suffered permanent brain
damage as a result of taking a i Fisons asthma drug in 1986, as
well as from lawyers for the girl’s pediatrician, who had filed a
cross-claim against Fisons.
Since the decision, Bogle has been forced to admit for the first
time that it had had the smoking gun documents since l 1987
and had advised Fisons to withhold them-while at the same
time, in the supreme court’s words, making statements to
opposing counsel “that all relevant documents had been
produced.” These statements were accompanied by artfully

Sleazy In Seattle


8/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
worded discovery responses that Bogle later claimed (in a
rationale rejected by the court) should have put its adversaries
on notice that relevant documents would be produced only if
found in a particular : Fisons product file
What makes the case important is not so much that one big
law firm was capable of engaging in conduct that stunk so
badly but that it was able to find 14 leading liti gation experts
to swear that this conduct smelled just fine to them, and to
persuade a special master and two superior court judges that
this is the way the adversary system is supposed to work.
It’s also remarkable that the Washington State Bar Association
is not, it con firms, even investigating the conduct of Guy
Michelson and Kevin Baumgardner, the two Bogle partners
who stand accused by opposing counsel of having made
representations (under oath, in one case) to their
representation (under oath in one case) to their adversaries
and the superior court that were “deliberately or recklessly
false and intended to deceive.” The court record bears out the
accusations.
The expert flotilla included $500-an-hour Yale Law professor
Geoffrey Hazard Jr., perhaps the nation’s most prominent
legal ethics expert [see “Hazardous Duty Pays,” page 60], and
leading Washington State litigators including ten fellows of
the prestigious American College of Trial Lawyers, of whom
two are also past presidents of the Washington State Bar
Association.
All 14 experts said that Bogle’s conduct had been nondeceptive
and ethically proper; most suggested that such conduct was
standard operating procedure in the adversary system; and
three suggested that Bogle’s conduct had been required by the
lawyers’ “ethical obligation to zealously represent their client,”
in the words of Payton Smith, chairman of the litigation
department of Davis Wright Tremaine, Seattle’s largest law
firm.

Sleazy In Seattle


9/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
You be the judge of whether Bogle’s conduct was honest,
whether such practices are the norm, and-if they are- whether
they ought to be.
Bogle and Fisons were initially exonerated of discovery abuse
by the special master overseeing discovery in the case and by
two successive superior court judges, including Judge Stuart
French of Snohomish County Superior Court (north of
Seattle), who presided over the 1990 trial of the underlying
tort case. Judge French rejected a motion for sanctions and
signed an opinion (drafted by lawyers for Bogle and Fisons)
finding that all of the discovery responses had been
“reasonable and proper,” and that “the conduct of Fisons and
its counsel…was consistent with the customary and accepted
litigation practices in the bar of this community and this state”
Customery or not, “the conduct in this case sinks. “in the
words of Stephen Saltzburg, a George Washington University
law professor who pressed the pediatrician’s claim that Fisons
and Bogle should be sanctioned and won it on appeal. “The
conduct of Fisons and Bogle explains why so many ordinary
people have losaith in the litigation system and the adversary
process, and believe that lawyers are untrust worthy,” as
Saltzburg argued in one legal brief.
BUSINESS AS USUAL?
But Bogle’s experts may have been right, I fear, insofar as they
suggested that many and perhaps even most litigators engage
under cover of darkness in the kind of conduct that is
fortuitously brought to light in this case. If so, then the
discovery process has been clogged by a culture of evasion and
deceit that accounts for much of its grotesque wastefulness,
and the adversary system has been perverted from an engine
of truth into a license for lawyerly lies.
Asked for Bogle’s comment on the case, Richard Wallis, the
managing partner, says: “It is our view that the Supreme

Sleazy In Seattle


10/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Court’s decision is a ‘course correction’ for the entire legal
profession…Bogle & Gates-like other firms in this state-will
now pursue discovery on behalf of our clients in a manner
consistent with this ruling. It is our position that Bogle &
Gates was, in this case, operating in good faith within the
standards of practice followed by attorneys in this state at the
time these discovery responses were made.”
Wallis stresses a speech last November in which Washington
Supreme Court justice Robert Utter characterized the decision
as “revolutionary” and said that “in fairness, it should be
noted that defense counsel…did not have the benefit of
advance notice about the court’s expansive interpretation” of
counsel’s obligations in discovery.
No …
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