There was certainly a lot of angst and criticism around the blawgosphere over Roger the Rocket’s testimony before Congress. People who ought to know better were busy claiming he perjured himself (like you know), picking sides in the steroid scandal, and blaming his lawyer, Rusty, for the biggest screw-up since Wachtel Lipton told Martha Stewart, “just go in there and talk to them…”
Now, the New York Lawyer has an interview of Rusty Hardin with Paul Braverman, where Rusty explains himself:
H: What is a public person to do if he’s falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he’s wrong?
B: You don’t think much of your critics?
H: I expect second-guessing. But these people on TV, they talk about whether I should “allow” a client to testify, whether I should “allow” him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?
B: It seems like he was asking for trouble.
H: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He’s a grown-up.
B: Even if that decision sends him to jail?
H: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.
You can’t argue with Rusty’s position. Clemens knew the risks and chose to talk. There’s a limit to what a lawyer can do.
But this interview does beg one question: Rusty, what are you doing telling the advice you gave your client out of school to cover your own butt? Salute Clemens all you want, but keep your privileged communications to yourself.
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My critism of Rusty is not for the advice he provided, but for his upfront, camera hogging, in your face, gonna kick your butt demeanor that can’t help but hurt his client. That might intimidate a young misdemeanor prosecutor, but he did it in the national media in the wrong forum and amongst politicians who won’t be upstaged. He set Roger up for the fall. If Roger wants to do it himself, fine, but Rusty did it for him and deserves the critism.
Yeah, he was a wee bit disingenuous in that regard, though I doubt that his silence would have changed anything for Clemens.
Really, that is appalling. He’s willing to breach the attorney client privilege just because some folks criticize his tactics.
There oughta be an ethics rules about that. Oh wait…
Wrongly maligned? I think they deserve each other. They’re both media whores.
How do you know Mr. Hardin did not obtain Clemens’ consent to disclose this info?
Well, I suppose that’s possible. Some pigs can fly, right?
Can You Know That The Attorney Client Privilege Was Broken?
So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:Hardin: What is a public person to do if he’s falsely accused? Why do lawyers think that the safest…
Didn’t even see this part of the comment thread before my post, but I don’t think it’s as unlikely as you insist.
It’s not that it’s the best strategy, but I’d still say you don’t know it’s not part of an overall plan.
And if the client insists on ignoring your initial advise – i.e., shut up – this may be the way to go. Paint your client as demanding to tell his story of innocence.
It’s possible. though I heard from a little bird that it’s not the case. On the other hand, if it were the case, it would be very high risk but bordering on brilliant strategy.
Of course, Rusty can always let me know otherwise and I would be happy to change my tune. Rusty?
Sure, it’s high risk, but that’s the point.
If the client insists on not taking the safe route (mums the word) – and that’s his prerogative, then he is the one insisting on that level of risk.
I suspect Clemens felt his HOF credentials – estimated at slamdunk to surefire, other than this – were at risk as well, and that’s why he chose the broadcast your story to the world, even under oath route.
Once that decision is made, as you say, possibly brilliant.
Why Clemens put everything on the line to save his reputation is easily understood. That Rusty was part of the plan with this interview, long after the media circus had died down, where he gave a planned interview to “spill the beans” and thereby bolster Clemens’ bravery of going public against all odds, I’m not buying at all.
Beyond what I was told about it, it’s too risky in that Rusty can’t control what someone writes about an interview, meaning that it could have come out completely different than intended (if it was intended) and anybody who regularly deals with the media knows that there’s no guarantee, even with friendlies, of making such a contingent strategy work.
Besides, does anybody have anything to suggest that Clemens has waived privilege?
Let me start with the part I agree with:
I think it’s likely that Hardin did not actually have permission to give this interview. I don’t know that he did. I’m not sure it’s the best ‘strategy’ anyway, even if it was all planned.
Now for the “But”:
The plan doesn’t work if it looks like Hardin is still Clemens’ spokesperson. Why, if it were planned, would anyone send you the documents showing you that this was all part of Clemens’ intentional PR plan, instead of letting you and everyone else apparently think that this was all off the cuff?
The proof you demand that Hardin had permission is also the proof that this all a PR stunt. Wouldn’t do much good to give it to you, would it?
I like that argument. Totally circular.