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Brady Center's Attorneys Withdraw from Case Under Cloud of Ethical Lapses

Saturday, April 18, 2015

Brady Center's Attorneys Withdraw from Case Under Cloud of Ethical Lapses

Earlier this week, the Brady Center's Legal Action Project attorneys Jonathan Lowy and Alla Lefkowitz withdrew from a Wisconsin lawsuit after inadmissible evidence was published on Brady’s website in violation of Wisconsin’s rules of professional conduct concerning trial publicity.

According to an article on the Journal Sentinel's website, Milwaukee County Judge Jeffrey Conen may have given Lowy and Lefkowitz the benefit of the doubt when he said, “I don't how things are practiced in Washington, D.C., or New York or anywhere else, but out here in the Midwest we have certain rules.”  Judge Conen’s reference to Washington, D.C. and New York was likely due to those being the jurisdictions of Lowy’s and Lefkowitz’s bar membership, respectively. 

While it wasn’t unreasonable for Judge Conen to suppose that the Brady attorneys may have been unfamiliar with Wisconsin legal ethics and rules of conduct, all attorneys are charged with understanding ethical rules in the jurisdiction in which they’re licensed. In this case, the Wisconsin rules Lowy and Lefkowitz transgressed mirror similar rules in their own states of licensure, rules with which they are presumably familiar. 

"I don't how things are practiced in Washington, D.C., or New York or anywhere else, but out here in the Midwest we have certain rules." - Milwaukee County Judge Jeffrey Conen

Wisconsin's rule concerning trial publicity in part provides that “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  This rule is identical to the American Bar Association’s model rule of professional conduct on the same topic: Rule 3.6.  To clear up any potential ambiguity, both the Wisconsin rule and the ABA model rule specifically mention publication of inadmissible evidence as a potential grounds for violation of the rules.  Both New York and Washington, D.C. have substantially similar rules concerning trial publicity.

The Brady attorneys’ behavior is typical of a general apathy shared by many anti-gun activists toward legal rules or principles they find objectionable or inconvenient.  In fact, the Wisconsin case that the Brady attorneys withdrew from is an attempt to punish a Federal Firearms Licensee for the criminal acts of a third party, which is exactly the type of case that Congress meant to stop through passage of the Protection of Lawful Commerce in Arms Act ("PLCAA"). 

The PLCAA was itself a response to anti-gun litigators' attempts to get courts to break a centuries old common law tort rule that prevented holding an individual liable for the criminal acts of a third party.  While often portrayed as a special interest immunity to protect the gun industry, the PLCAA did nothing more than ensure even application of this common law rule throughout the United States. This in turn protects firearms dealers, manufacturers and importers, many of which businesses could be forced to close by the mere threat of costly litigation, from frivolous lawsuits brought by unscrupulous anti-gun litigators who put their hatred of guns above their oaths to uphold the law. 

Unfortunately, the withdrawal of Brady’s attorneys does not necessarily signal the end of the suit … or the end of Brady's freewheeling anti-gun tactics.

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