A high degree of integrity must go into every decision we make. Our conduct must be beyond reproach. We must all think and behave like private attorney generals.
The Corporate Observer spends a great deal of time assessing accountability. The tanning industry, Wall Street, corporate America, government regulators, banks—nobody is immune. That includes lawyers. And that is why – despite what appear to be noble motives – I must chastise attorney James B. Gottstein for his recent actions. Let me explain.
On August 12 a federal appeals court ruled that Gottstein knowingly used “sham subpoenas”in order to circumvent a protective order. Protective orders are typically filed in sophisticated commercial litigation cases to protect confidential and/or sensitive business documents from competitors (that’s the theory at least; often they are used instead to burden the process and make it more difficult to obtain the truth).
In this particular case, plaintiffs had brought suit against Eli Lilly, the manufacturer of the anti-schizophrenic drug Zyprexa for marketing the drug “off label” to minors (for more on the Big Pharma probe, click here and here). Serving as an expert witness in the case, Doctor David Egilman reviewed documents designated as confidential that were subject to a protective order. Egilman saw “much to dislike” in the documents about the effects of Zyprexa—enough to ignore his vow of confidentiality and seek to expose the information.
Egilman approached Gottstein, an attorney, in hopes that Gottstein would be willing to acquire access to the documents outside the protective order (through some legal chicanery). Egilman trusted that Gottstein’s personal beliefs as a “mental health advocate” would outweigh his feeling of professional responsibility. He was right. The contents of the documents alarmed Gottstein; enough so that his conscience trumped his sense of duty. He improperly subpoenaed the documents in association with a different, unrelated case. Immediately upon receipt he and Egilman released the documents to the New York Times; the next day Eli Lilly and Zyprexa were on the front page.
The court immediately issued an injunction forbidding further dissemination of the information. Much of the bad light intended for Eli Lilly quickly shifted to Gottstein and his rogue attorney work. To be sure, Gottstein’s goal was to reveal the ugly truth about Zyprexa and Eli Lilly’s aggressive marketing tactics. But to do so Gottstein completely ignored his professional and legal responsibilities. And significantly, failed to anticipate the lasting effect of his actions.
In its spring edition, the American Association for Justice’s Class Action Litigation Newsletter published an article of mine which comments on the declining reputation of class action attorneys in today’s world. Despite the admirable job that most attorneys do as crucial cogs in the American justice system, it only takes a few bad apples to sour the public. James Gottstein is not a bad apple, but it takes a contemplative eye to see that; many will view his actions as reprehensible and outside his power. The rules exist for a reason and apply to everyone. If one day Mr. Gottstein cries foul and a judge ignores him he’ll have no one to blame but himself.
To whom much is given, much is required. We’ve all heard the line, but when is it more poignant? Few professions are given as much responsibility and authority as those in the legal realm. Just bringing a lawsuit can change lives. For that reason a high degree of integrity must go into every decision we make. Our conduct must be beyond reproach. We must all think and behave like private attorney generals. And for that reason I find Mr. Gottstein’s actions understandable, but far from commendable.
Assisted by David Martin