In April, Jonathan Adler blogged briefly about a lawyer's subpoena against blogger Kathleen Seidel. Last week, and two months after the subpoena was quashed, the Magistrate Judge issued an opinion harshly condemning the lawyer:
Clifford Shoemaker, Esq. was counsel to the plaintiff in the underlying case. In the underlying case the claim was that the plaintiff-child developed neuro-developmental disorders from high mercury exposure as a result of exposure to defendant’s medicine in utero. Shoemaker is a 1973 law school graduate who indicates on his website that he has focused his attention on an alleged mercury-created autism epidemic. He claims to have “tried cases in federal district courts all over the country.”
Ms. Seidel was a non-party to the Sykes’ suit. Ms. Seidel maintains a website, www.neurodiversity.com, on which she posts articles she and others have written about the controversy about whether mercury has or has not created an autism epidemic. Shortly after posting an article on several fees Mr. Shoemaker obtained in various Vaccine Injury Compensation Program claims, Shoemaker served Ms. Seidel with the subpoena at issue.
The subpoena, as Ms. Seidel correctly summarizes:
commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” — including but not limited to material mentioning the plaintiffs - and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”
... I quashed the subpoena and ordered Mr. Shoemaker to show cause why he should not be sanctioned under Fed. R. Civ. P. 11....
The subpoena which I have attached to this order is breathtakingly broad. Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating ... these endeavors.” The documentation sought is exhaustive.
Shoemaker seeks to justify the subpoena by allegations that Seidel is not “a mere mother of an autistic child and housewife,” but a co-conspirator under 42 U.S.C. §1985 with her husband or “the defendant (Bayer) or by some organization dedicated to harassing this plaintiff (Ms. Sykes) and her witness ...” Shoemaker’s claim that Ms. Seidel was the “leader of a conspiracy to obstruct justice ...” is unsupported by any facts. It is clear that she has openly and extensively exercised her First Amendment right to speak out on the issue. Shoemaker certainly has the right to disagree with her, but he has no right to misuse the process to abuse her.
Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....
I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia’s Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.
The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker’s conduct and so that those authorities may take whatever action they deem appropriate.
As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.
The order doesn't explain why no attorney fees were awarded against the sanctioned lawyer; I'm not expert enough on Rule 11 to be sure of the reason, but I take it that this is because Ms. Seidel may have been represented pro bono by Public Citizen Litigation Group in part of the litigation and represent herself in another part.
Just goes to show: Don't mess with librarians.
sanctions are very rare, and hence one would like to see them do something when they are issued if they are to create any deterrence at all.
a CLE program? i bet this guy competes the program by skimming online materials and filling out a form, consisting of about 1/100 of the amount of time and energy he caused the Ms. Seidel.
Decisions like this merely embolden those who would blatantly abuse the legal system to harass other parties without justification.
Seriously, though, although the sanctions were not severe, the court did send the file to the bar association, which impose further penalties.
Plus, the judge referred him to the state bar. The state bar takes judicial referrals very seriously.
He's in a world of hurt and humiliation, and it ain't over yet. A cash sanction would be insignificant in comparison to these consequences.
One has to admire the subtler aspects of Mr. Shoemaker's technique, though. Demanding that she reveal communications with religious groups "Muslim or otherwise" is a new refinement on the old "and when did you stop beating your wife?" tactic.
I doubt the judge saw the attendance at a CLE program as a serious imposition. I don't know Virginia's bar rules, but an ethics course is required by a number of states on an annual or semi-annual basis (New York and Illinois, among others). I thought the CLE requirement was more pointed commentary on his ethics/skills than an attempt to impose some large substantive burden.
Second, the opinion is a little unclear, but it looks like the Rule 11 violation wasn't for the actual subpoena -- which was not submitted to the court, a requirement for Rule 11 -- but for "later advocating" it, i.e. opposing the motion to quash. So he "doubled down," in effect, on his Rule 45(c)(1) violation, and lost.
As for the requirement of CLE, that may be no imposition at all. Virginia mandates annual CLE for everyone admitted there, so it may be that the sanction will only mean that he satisfies the state bar requirement this way rather than in some other. (Maybe the "attend" part will mean that he will have to show up somewhere rather listen to a CD and mail in the answers.)
"...an ethics course is required by a number of states on an annual or semi-annual basis (New York and Illinois, among others)." That doesn't sound right. Such a requirement for those newly admitted, but after one has satisfied the initial requirements, moreover on an annual or semi-annual basis?!
My question: is this the last word the judge can give on this? Or can more hurt from the bench still be coming?
An ethics course is required in my state (3 hours annually).
By the way, welcome back.
For those of us outside the system, these penalties don't look remotely compensatory for trying to drag one of us into your system. Shoemaker should be called out and horsewhipped, then disbarred.
Lawyers have their hands on the levers of a machine that can seriously bugger up the lives of us non-participants. When they abuse that machine they should be disbarred, no half-measures. The already lame argument that this might dampen the zeal of lawyers seeking justice looks worse than ever, so I guess I could thank Mr. Shoemaker for exposing it.
I'd be interested to know if any of the commenters thus far are litigators (I am) and whether they have seen subpoenas as broad or broader go unquashed and unpunished. Anyone who has been trying cases for more than a few months is bount to answer yes to both questions.
I don't have any problem with the quashing, but I do have a problem with the sanctioning when similar--in fact, substantially more egregious--conduct is almost never sanctioned in other cases.
Incidentally, as "everyone else is doing it" is no excuse, I have no sympathy for those whom lightening strikes for doing it.
That's a silly argument. It's like saying that because O.J. wasn't convicted, we shouldn't bother trying people who only murder one person at a time.
Don't hold your breath waiting for a State Bar to actually take seriously charges of unethical conduct by a lawyer. Maybe, just maybe, the Virginia State Bar is different. And maybe it will view the charges, coming from a Federal Judge, more seriously. But my experience with Texas has made me highly cynical about the grievance procedure; sure, the State Bar here will come down hard on a lawyer who actually steals money from a client, but if the breach of the ethics rules falls short of that, especially if the breach involves going over the line (even WAY over the line) in prosecuting a claim, like say directly contacting a represented party without advising the party's lawyer, or trying to get confidential information from the other side's expert witness outside of the discovery process, or even cutting a client loose in order to take on more profitable work while ignoring direct conflicts of interest, I've seen the State Bar of Texas just look the other way and pretend that no breach of the rules occurred. The Texas Bar requires 3 hours of ethics CLE every year to remain in good standing, but in my view that is largely a matter of PR - the State Bar wants the public to belive that law is an ethical profession, but, for anything short of actually stealing money from clients, it doesn't really want to actually enforce the rules.
And for those of you that think the bad press will hurt this lawyer's ability to attract clients, you forget that a vast majority of clients are much more concerned with the question of "Can this lawyer win my case?" than with the question of "Is this lawyer ethical?" If Dickie Scruggs is ever readmitted to the Bar - after serving his 6 year sentence for attempting to bribe a judge -- I'd bet that he'll have plenty of clients willing to hire him just because "He'll do ANYTHING to win for me."
The only way to hurt a guy like this is to deprive him of his ability to practice law and/or make him pay a big fine. Making him spend a day listening to a canned lecture at a cost of (at most) $1500 is laughably inadequate. As for the shame, he'll get over it before he's finished filling out the registration form.
FWIW, in response to neurodoc -- I am not going to get into the issue of who is right and who is wrong about implants, but we took this case NOT because of our position on the scientific dispute, but because we were concerned about the breadth of the subpoena and its possible chilling effect. We wanted to be sure that Seidel was fully protected as well as sending a message to other lawyers tempted to pull what Shoemaker did here. And our representation of Seidel is quite consistent with our long history of defending free speech online in a variety of contexts, as perusal of the "Internet Free Speech" section of our web site will reveal. We have, for example, done much to develop the standards for protecting against discovery to identify anonymous Internet speakers. This is as much a part of our broader consumer protection mission as was the development of the First Amendment doctrine protecting commercial speech (which originated with our Virginia State Board of Pharmacy case in 1976).
For those who say, Shoemaker should not be slapped because others have done far worse, I would say, we have to start somewhere. And for those who say his sanction was too low (perhaps forgetting that a compensatory sanction was not available in light of the fact that Rule 11 was invoked sua sponte), I am inclined to agree with those who commented that the sanction was just right. It was too low to make an appeal sensible (thus saving Seidel any further bother), yet the public censure will follow Shoemaker for years, and indeed when he seeks pro hac vice admission in the future he may well have to report it. It will, consequently, effectively send a message to others who are tempted to abuse the subpoena process to attack protected speech. We deliberately did not express a view in our papers about what sanctions should be imposed, only that the justifications offered for the subpoena tended to show that sanctions were called for. FWIW, I called Shoemaker's counsel before filing our papers to urge him to withdraw his accusations against Seidel, suggesting to him that they would prove counterproductive. It is too bad he paid no heed.
The fact is that these lovely games lawyers like to play impose enormous costs, and not just financial ones, on people like Seidel. A disciplinary system that doesn't come down hard - and I don't mean a "tut-tut. Don't do that again" from the judge or the bar assn, is a joke.
Despite the headline, librarian didn't "win" anything. She lost, and has no recourse against Shoemaker for her loss.
As Spongeworthy said above:
Lawyers have their hands on the levers of a machine that can seriously bugger up the lives of us non-participants. When they abuse that machine they should be disbarred, no half-measures. The already lame argument that this might dampen the zeal of lawyers seeking justice looks worse than ever, so I guess I could thank Mr. Shoemaker for exposing it.
Exactly.
Thanks to Senator Lieberman who got the National Institute of Environmental Health Sciences (NIEHS) in 2005 to go behind the CDC and analyze their study and report. Well the report is in and she had to admit point by point how useless and flawed that study was. Thats right the most referred to study to disprove the link between thimrosal/mercury and autism has now been shown by review to be bogus. Since the two Denmark studies have already been shown to be flawed as well this leaves little evidence to fall back on. The "5 large studies" that everyonly likes to quote are now back to only 2. The Swiss and UK study are the only ones left not completely discredited. Anyway this one was the main one that everyone has pointed to for years as the definitative study.
"In her letter to the House Appropriations Committee, the CDC Director responded directly to many -- though not all -- of the most important criticisms and recommendations contained in the NIEHS panel report.
For example, the NIEHS had criticized CDC for failing to account for other mercury exposures, including maternal sources from flu shots and immune globulin, as well as mercury in food and the environment.
"CDC acknowledges this concern and recognizes this limitation," the Gerberding reply says.
The NIEHS also took CDC to task for eliminating 25% of the study population for a variety of reasons, even though this represented, "a susceptible population whose removal from the analysis might unintentionally reduce the ability to detect an effect of thimerosal." This strict entry criteria likely led to an "under-ascertainment" of autism cases, the NIEHS reported.
"CDC concurs," Gerberding wrote, again noting that its study design was "not appropriate for studying this vaccine safety topic. The data are intended for administrative purposes and may not be predictive of the outcomes studied."
Another serious problem was that the HMOs changed the way they tracked and recorded autism diagnoses over time, including during the period when vaccine mercury levels were in decline. Such changes could "affect the observed rate of autism and could confound or distort trends in autism rates," the NIEHS warned.
"CDC concurs," Dr. Gerberding wrote again, "that conducting an ecologic analysis using VSD administrative data to address potential associations between thimerosal exposure and risk of ASD is not useful."
Nice. Your big influential study we have been beaten with for years turns out to be "not useful".
But on to a more salient point.
Does anyone see a certain trend here? It is becoming more apparent every day that lawyers are not receiving sufficient ethical training. Prosecutors, particularly in Southern states (note story about prosecutions in drug cases in TX where police lied), are being revealed as moral monsters (Nifong, et alia) willing to use the services of an incompetent medical examiner (see Mississippi) to win cases instead of pursuing justice.
But the lawyers will wrap themselves in the flag, and proclaim the greatness of their profession, while doing absolutely nothing to weed out the corrupt and incompetent in their own ranks (See Pennsylvania's system for disciplining lawyers).
Forgive me if this post seems rather nasty, but the noble profession of law has become something rather nasty.
It is becoming more apparent every day that lawyers are not receiving sufficient ethical training.
I don't think it's a question of training. I suspect that in most cases the offender, if taking an exam, would easily get the answer right.
The problem comes in real life, when financial gain, career advancement, political ambition, ego, or just plain nastiness and sense of entitlement take over. That's why better disciplinary systems are needed. Lawyers enjoy pretty considerable privileges, mostly probably justifiable, but there should be a pretty serious cost attached to abuse of those privileges. A scolding is not near enough.
Perhaps so for the lawyer, perhaps not so for his victim.
Generally will have to report and will find himself blocked from admission. As he has a practice built on pro hac admissions, he has basically been disbarred from appearing in cases anywhere but his home jurisdiction for several years.
L O L
You can argue that sanctions should be imposed more regularly, of course, but it isn't fair to this lawyer that the hammer comes down on him when it doesn't on others.
It's rather like a basketball game where the referees don't call fouls for minor contact, so you start bumping a little, and then you (but no one else) gets called for a foul. That's unfair, and so is this.
Like it isn't fair that some drivers get speeding tickets and other speeders don't?
Yes, anyone who does this should be sanctioned - more harshly than this - but just because most judges are overly loyal to the guild doesn't mean the guy doesn't deserve to take a hit.
"How terrible, the judge yelled at him. That's so unfair."
Isn't this the reason The Rochesterian (banned for his excellent ideas some people disagreed with) called for neuropsychological testing BEFORE anyone is given an attorney license or allowed to sit on the Bench?
Why not predict the ones who will become the future bad guys? Why leave anything to chance when there is a way to know?
ALL should be neuropsyched, according to The Rochesterian.
Because saints are few and far between.
You wrote: "How terrible, the judge yelled at him. That's so unfair."
Well if you'll check out the comments above, commenters are hoping that this guy's career is over, depending as it apparently does on pro hac admissions. That's what irks me; I don't really object to some kind of slap on the wrist, but I think bar reporting in this circumstance is unnecessarily punitive.
You also write "just because most judges are overly loyal to the guild doesn't mean the guy doesn't deserve to take a hit." When you're dealing with ethical issues, "guild" considerations are perfectly acceptable.
Maybe I'm just old fashioned, but I don't think a career should be potentially ended because of one overly broad subpoena. I suspect most of the other commentors--despite the bloodthirsty posts to the contrary--agree.
OK. Let me be clear. I don't hope the guy's career is over. (I'm not convinced it is, by the way, but admit I don't know how all this admissions business works in practice).
Still, I have had too many discussions with lawyers who did claim, in effect, that a judge's scolding was really a terrible punishment for some outrageous behavior. Read EV's headline. I could be mistaken, but he seems to think so. This is what I'm getting at with the word "guild." What lawyers seem to regard as harsh discipline looks to outsiders like no more than a finger-wag.
Lawyers have tremendous power to screw around with people. It may not look like that from the inside, but it's true. I can't go around issuing subpoenas to people who offend me. Yet the controls on that power seem inadequate, which shouldn't be all that surprising since the controls are exercised by other lawyers.
To you this was just "an overly broad subpoena." And that's the problem. It was much more. There's every reason to doubt that it should have been issued at all, so broadness, while part of the problem, is not all of it. In effect this was nothing but intimidation by law license. Seidel, if she is an average non-lawyer, has little or no contact with legal proceedings in her daily life. This kind of thing is amazingly stressful for most people; it can impose substantial emotional costs. When it's done the way Shoemaker did it it deserves a hell of a lot more than a slap on the wrist.
No, his career shouldn't end, but he should compensate Seidel. I'd say something like his hourly billing rate for eight hours a day from the time the subpoena was issued until it was quashed would be fair.
A species of equal protection? On some other planet maybe. If I rob a bank and don't get caught, will that be a defense the next time someone robs and bank and does get caught?
Describing this as an overly broad subpoena displays the moral sense of a rabid coyote.
This was not an overly broad subpoena. It was a calculated attempt to silence a critic by misusing the law, in a thuggish manner. His career should end. In ignominy.
BTW are you a lawyer?
Instead of defending her, you should all be clamoring for this woman to be charged with child abuse for spreading false information about autism. Naive parents who happen upon Seidel's misrepresntation of facts concerning Dr Geier may miss an opportunity to cure their kids of this nightmarish condition.
The way I see it, deliberately misrepresenting these facts is a violation of the first amendment when children suffer as a consequence.
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