Coal Tattoo

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Regular readers of Coal Tattoo will certainly recall the incident in July when coal industry lawyers from the firm Crowell & Moring tried to blame the increased rate of birth defects among residents near Appalachian surface mining sites on inbreeding.

Remember what they said (without even being able to spell the word correctly)?

The study failed to account for consanquinity [sic], one of the most prominent sources of birth defects.

Crowell and Moring removed the material from its firm website and a spokeswoman issued an apology … But it appears the lawyers involved haven’t heard the last of this.

Earlier this week, a former West Virginia lawyer who now teaches at the Charlotte School of Law in North Carolina filed a formal ethics complaint against attorneys Clifford J. Zatz, William L. Anderson, Kirsten L. Nathanson, and Monica M. Welt over the matter.

Assistant law professor Jason Huber alleged that the four Crowell & Moring lawyers violated the Washington, D.C., Rules of Professional Conduct for lawyers because their web post “contained a materially misleading statement in an attempt to solicit business from the coal mining industry.”  Huber wrote:

The advertisement perpetuates and exploits the empirically debunked notion that inbreeding is regularly practiced by the Appalachian People.  Despite the firm’s frequently flaunted ‘ample’ and ‘significant’ experience in birth defect litigation, the authors failed to recognize the lack of scientific evidence to support their attempt to mislead the reader into believing that Appalachian incest, not mountaintop removal mining, caused the observed birth defects.

I’ve posted a copy of the ethics complaint and related materials here. Nicole Quigley, a spokeswoman for Crowell & Moring, issued this statement in response to my inquiry:

We again express our regret for any offense that might have been taken with the client alert, as it was meant only to relay a possible flaw with a scientific study. However, the complaint is without merit.

The complaint cited rules 7.1(a) and 8.4(c) of the D.C. Bar’s rules. Under those rules:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:  Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading…

The complaint said:

The ill-conceived assertion that ‘the study failed to account for consanquinity [sic] one of the most prominent sources of birth defects’ was materially misleading for two reasons.

First, the authors’ assertion is based on the patently false premise that higher rates of inbreeding occur in Appalachian communities where mountaintop removal mining is most prevalent.

… Second, the advertisement misleads the reader into discrediting the study by implying that consanguinity is usually accounted for in similar studies.

The complaint concluded:

Appalachian stereotypes have been scientifically disproven, and yet they persist in popular culture precisely because of statements like the one published on Crowell & Moring’s website. Capitalizing on such inaccurate stereotypes in attorney advertising is extraordinarily unprofessional, misleading and prejudicial to the people lawyers serve and to the public in general.

This is especially true in light of the firm’s ties to the mining industry and the preexisting tension between the industry and the Appalachian people It is sound policy for the Bar to punish the use of misleading stereotypes in attorney advertising. The authors of the advertisement neglected their duties and violated the mandate that ‘the rules do not  … exhaust the moral and ethical consideration that should inform a lawyer.”