Lawyers For Thomas Cooley Law School Skirt Legal & Ethical Questions In Uncovering Anonymous Blogger They're Suing

from the maybe-they-don't-teach-ethics-at-thomas-cooley-law-school dept

Remember the Thomas M. Cooley law school? The school, generally considered a 4th tier bottom of the barrel law school, made some news last month by suing some anonymous critics, who appeared to be unhappy former students blogging about the school. The school has also been sued for apparent misleading employment stats. Of course, somewhat related to all of this is the ridiculously laughable attempt by Thomas Cooley to hide its poor reputation by creating its own ranking system that puts itself as the number 2 law school in the country. Of course, its ranking methodology leaves a lot to be desired, using things like "total law school square footage," and "total volumes in library," and giving them equal rank to things like "bar passage rate" and "employment upon graduation."

Anyway, the lawyer representing Cooley, Michael Coakley, who attended the (according to Cooley itself) far inferior law school of the University of Michigan, apparently decided to take some questionable steps in identifying one of the bloggers in question. Initially, he had filed a subpoena on the ISP via the Michigan state court where the case is pending, demanding identifying info. The blogger's lawyer, John Hermann, filed a motion to quash the subpoena. While the court was still considering that, Coakley went and had another subpoena for info served via California. While the ISP (more on that in another post) had promised Hermann that it would not divulge the info while the motion to quash was being considered, and then told him it wouldn't do anything before August 22nd, it apparently handed over the info on August 17th.

Coakley then sent Hermann a letter saying that since the ISP had already identified the blogger from the second subpoena, Hermann's motion to quash the original subpoena was moot, and threatened to ask for sanctions against Hermann if he didn't drop it. He also threatened to reveal the blogger's name in a public court filing, if Hermann and the blogger did not agree to certain conditions and provide certain info.

Of course, all of this is of dubious ethics and legality. As Paul Alan Levy explains via the link above:
In fact, because Coakley knew that he had obtained this information in the face of a pending motion to quash the subpoena asserting that the Doe had a First Amendment privilege to speak anonymously, he not only had no right to obtain had no right to use the information against Doe, but he had an obligation to return the information pending a resolution of the discovery dispute.  That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege.  In Michigan, Rule 2.302(B)(7) provides that

  •     If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.  A receiving party may promptly present the information to the court under seal for a determination of the claim.  If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it.  The producing party must preserve the information until the claim is resolved.


Because Coakley is the head of the litigation department at a prominent Detroit law firm, he must have been aware of this rule.  In fact, his letter could be read as expressing some defensiveness about his obligations, because he began by emphasizing that the disclosure really wasn’t his fault: the disclosure had occurred, he said, “without direction from us (other than the subpoena itself).”  But the California subpoena was served after the motion to quash was filed in Michigan, and the threat to use the privileged information to exact concessions from Doe, and the subsequent filing of an amended complaint and other papers prominently displaying Doe’s name, seem to have been deliberate violations of the rule.  Coakley has not responded to my requests for information and for comment on my concerns.

Given how marginal his client's defamation claims against the Doe are, Coakley may have felt he had no choice but to skirt the ethical edge by violating this rule.  (The linked complaint, which was a draft attached to Coakley's demand letter, reflects a false name; by the time it filed the amended complaint, it had used the disclosure to identify the Doe and put that name in the complaint).  Coakley markets himself to potential clients by proclaiming his reputation as “a scrapper in protecting their  interests.”   As I see it, Coakley’s scrappiness took him a few steps too far in this case.

Thankfully, the court seems to recognize this somewhat questionable activity on the part of Coakley, and has ruled that the disclosed information should be sequestered, and the papers filed in the case naming the blogger should be stricken from the record. Still, even if this lawyer isn't a Cooley grad, these actions certainly don't reflect well on Cooley as a law school.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Josh in CharlotteNC (profile), Sep 13th, 2011 @ 12:53pm

    Irony

    Google ad displayed along with this story:

    Cooley Law School
    Knowledge, Skills, Ethics. Unmatched in Size, Scope and Beauty.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    Rikuo (profile), Sep 13th, 2011 @ 1:05pm

    Someone said something nasty about us! Gotta sue them...just gotta make sure to hire a graduate from a different school, can't just any of our own!

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Rikuo (profile), Sep 13th, 2011 @ 1:06pm

    Re:

    *Correction - "can't trust", not "can't just"
    Mike, any news on that Edit comment feature? Would come in handy...

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Gumnos (profile), Sep 13th, 2011 @ 1:16pm

    Can't even make 1st-place in your own ranking system?!

    They create their own ranking system and can't even come out on top regardless of how they weight various factors? «boggle»

     

    reply to this | link to this | view in thread ]

  5.  
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    Atkray (profile), Sep 13th, 2011 @ 1:21pm

    ¿So how exactly is Michael Coakley connected to Righthaven?

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Atkray (profile), Sep 13th, 2011 @ 1:29pm

    Re: Re:

    I don't think the edit feature is going to happen, it would make it too easy for those who regularly get called out for not providing citations etc... to fix their garbage posts instead of allowing them to stand.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    New Mexico Mark, Sep 13th, 2011 @ 1:39pm

    Re: Re:

    No, no, no... a number one ranking would be too obvious. These folks are brilliant and subtle! I guess that makes them buttle (or silliant).

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Chosen Reject (profile), Sep 13th, 2011 @ 1:45pm

    Brilliant

    This is brilliant. They hire a guy from an inferior (according to them) law school and then he performs unethical actions. Now they can point out how their graduates didn't do any of this unethical stuff. Of course, their graduates couldn't have because they are yet to be hired to do anything, but let's ignore that. Just focus on the fact that a lawyer from an inferior law school did shoddy work. That's the ticket.

    Brilliant marketing move on their part.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Sep 13th, 2011 @ 1:46pm

    Re: Can't even make 1st-place in your own ranking system?!

    Sounds like a Jeff Foxworthy-style joke. "You know you're a loser if you can't win a rigged race"

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    egghead (profile), Sep 13th, 2011 @ 2:08pm

    That's what I get...

    Am I the only one who clicked on the link after skimming the title and finding "...School Skirt Legal & Ethical Questions...?" I was highly disappointed after reading the entire post.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Thomas (profile), Sep 13th, 2011 @ 2:46pm

    Ethics?

    One might expect attorneys working for a law school to know the law and have some ethics, but obviously they don't. Wonder what lesson that teaches to students at the school? Guess they learn that ethics and the law are something to find a way around or flat out ignore.

    What a generation of lawyers we have these days!

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    lucidrenegade (profile), Sep 13th, 2011 @ 3:51pm

    "from the maybe-they-don't-teach-ethics-at-thomas-cooley-law-school dept"

    Wait, when did lawyers find ethics?

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Sep 13th, 2011 @ 6:41pm

    Rules...

    "That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege."

    Perhaps it's more of a guideline. :)

     

    reply to this | link to this | view in thread ]

  14.  
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    G Thompson (profile), Sep 13th, 2011 @ 11:12pm

    You sure Michael Coakley isn't just an AKA of Evan Stone's?

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    That Anonymous Coward (profile), Sep 14th, 2011 @ 1:40am

    Re:

    I would have to see the CA request to see if it was written in crayon.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    That Anonymous Coward (profile), Sep 14th, 2011 @ 2:04am

    So Cooley ends up with what they wanted in the first place, the name of the person speaking badly about them.

    Expect them to just file a bunch of silly cases trying to discredit this graduate of their "fine" school trying to create a trail of negatives.

    Not that having Cooley on your diploma is now a major hurdle to overcome. Their actions have drawn much attention to the questionable tactics they employee.

    I think they should hand the letter with the threats to the Judge and wait to see him explode. Shame he can't force them to use Cooley grads to run the schools case.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Conscious, Nov 1st, 2011 @ 4:50pm

    This should not be something that is held against cooley seeing how the lawer was not a graduate of Cooley but of the University of Michigan and he is not in house counsel for Cooley,But a Lawyer at a major law firm in Detroit hired by Cooley. Any ethics issues should be construed against him, his firm, and his school. Not the Client.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Conscious, Nov 1st, 2011 @ 5:02pm

    Lawyer not lawer

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Johnathan Carter, May 24th, 2013 @ 11:13pm

    President Obama nominates Thomas M. Cooley Law School Graduate!

    President Obama nominated Christopher Thomas, a Cooley Law School grad and professor, to the Presidential Commission on Election Administration.

    Url: http://www.whitehouse.gov/the-press-office/2013/05/21/president-obama-announces-his-intent-appoint-i ndividuals-presidential-co

    Alumni from Thomas M. Cooley Law School who are recognized as SuperLawyers

    URL: http://www.superlawyers.com/lawschool/The-Thomas-M-Cooley-Law-School/fad6dc18-84c4-102c-aca4-000e0c6 dcf76.html

     

    reply to this | link to this | view in thread ]


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