The instantly infamous Atlanta personal injury lawyer Andrew H. Speaker has caused a lot of well-warranted tongue-clucking across the nation and within the legal profession over the past couple of days. See: “Tuberculosis Patient an Atlanta Lawyer,” 11Alive/AP (May 31, 2007); find extensive coverage and links at the Above The Law weblog. After being told that he has the worst form of tuberculosis (called “extensively drug-resistant” or XDR-TB), Speaker slipped out of his hotel, took a transoceanic commercial flight from Italy, and then snuck across the Canadian border by car back into the United States. ”Border Agent Allowed TB Patient in U.S.,” AP/MyWay (May 31, 2007). According to the Seattle Times, Speaker ”thought he was stuck in Italy” and decided to sneak home because he feared he would die without treatment in the United States. “I thought to myself: ‘You’re nuts.’ I wasn’t going to do that’.” He reportedly told the Atlanta Journal-Constitution on Tuesday that he thought the security was excessive.
“I’m a very well-educated, successful, intelligent person,” he told the paper. “This is insane to me that I have an armed guard outside my door when I’ve cooperated with everything other than the whole solitary-confinement-in-Italy thing.”
Lawyer-Patient Speaker told Diane Sawyer this morning he never thought others were at risk for catching his deadly disease. In the ABCNews interview, “Exclusive: TB Patient Asks Forgiveness but Defends Travel” (June 1, 2007) Speaker told Sawyer:
“I’m very sorry for any grief or pain that I have caused anyone . . . I think if people look at my life, that’s not & not how I live my life.”
Officials from CDC disagree with his factual assertions, but have said that Speaker has not broken any criminal laws. (We might need to know more facts relevant to his border crossings to know for sure). According to an Associated Press story on May 31, 2007, “Health law experts said Speaker could be sued if others contract TB.” The article continues:
“There are a number of cases that say a person who negligently transmits an infectious disease could be held liable,” said Lawrence Gostin, a public health law expert at Georgetown University. “So long as he knew it was infectious, and knew about the appropriate behavior but failed to comply, he could be held liable.”
I’ll let others analyze the national security issues raised by this affair and discuss how to finally update our nation’s ability to deal with infectious diseases in an era when international travel is commonplace. I’m wondering what the Bar should do about Lawyer Andrew Speaker, if it becomes clear that he was indeed told by the CDC not to travel by commercial airlines or mingle with other people, when they contacted him in Italy, due to a risk of spreading his XDR-TB, but he nevertheless chose to jeopardize the safety of others by flying to Canada and driving into the United States.
Andrew H. Speaker is 31-years and graduated from the University of Georgia Law School. He practices law in Atlanta, Georgia, with his father in a firm that focuses on family/divorce law and personal injury matters, and bills himself as a personal injury lawyer. The Speaker Law Firm‘s “poweradvocates” website has been swamped and inaccessible the past couple of days, but (as of Friday afternoon) you can still view its homepage via this google cache.
In order to be admitted to the bar, a lawyer must pass a Good Character and Fitness Review by an officially designated board or committee. We’ve discussed types of conduct that should be considered in determining an applicant’s “fitness” several times at this weblog (for example here and there on bankruptcy, and here on substance abuse). Some people — especially younger members of the bar, it seems – seem to believe that the scope of conduct deemed relevant should be rather small. Here is how an FAQ posted by the Georgia Office of Bar Admission explains the good character requirement:
4. WHAT DO THE GOOD CHARACTER AND FITNESS STANDARDS REQUIRE? The good character and fitness standards require that an applicant to the bar be one whose record of conduct justifies the trust of clients, adversaries, courts and others. The hallmark of such a person is honesty, especially in connection with the application for admission to the bar. Persons with a record showing a deficiency in honesty, trustworthiness, diligence, or reliability might not be recommended for admission.
5. WHAT KINDS OF CONDUCT MIGHT SHOW A DEFICIENCY IN THE NECESSARY QUALITIES OF HONESTY, TRUST-WORTHINESS, DILIGENCE, OR RELIABILITY? Any of the following will be considered by the Fitness Board to be a basis for further inquiry before recommending admission:
- unlawful conduct
- academic misconduct
- making of false statement, including omission of relevant facts
- misconduct in employment
- acts involving dishonesty, fraud, deceit or misrepresentation
- abuse of legal process
- neglect of financial responsibilities, especially failure to repay student loans
- neglect of professional obligations
- violation of an order of a court, especially failure to pay child support
- evidence of mental or emotional instability
- evidence of drug or alcohol dependency
- denial of admission to the bar in another jurisdiction on character and fitness grounds
- disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction
Regardless of any criminally or civilly liability under the law, I would hope that Speaker’s reckless, clandestine actions would have barred him from membership in the Georgia bar, had they occurred prior to his admission. As alleged, they surely show a great deficit in the area of trustworthiness and reliability. Of course, Andrew is already a member of the bar. Therefore, if he is to be disciplined for his conduct the past couple of weeks, it must be scrutinized under the Georgia Code of Professional Conduct. The relevant section is Rule 8.4, which states:
RULE 8.4 MISCONDUCT
(a) It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:
(1) violate or attempt to violate the Georgia Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(2) be convicted of a felony;
(3) be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law;
(4) engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;
As you can see, the Rule is written to cover conduct that results in a felony conviction, or in a misdemeanor violation that both involves moral turpitude and “relates to the lawyer’s fitness to practice law.” As a Comment to Rule 8.4 states, not just any kind of criminal conduct comes within the rule. To be “professionally answerable,” a lawyer’s conduct must “indicate lack of those characteristics relevant to law practice.” Otherwise, “dishonesty, fraud, deceit or misrepresentation” must be “professional conduct” to be covered by the Rules.
Thus, using its self-regulatory status, the legal profession protects its members from discipline for non-criminal and “non-professional” conduct, no matter how notorious and outrageously untrustworthy it might be. While our image-conscious elders and watchdogs fret over which animals and slogans are sufficiently dignified for lawyers to utilize in their marketing, they have decided that all sorts of despicable conduct – no matter how public or embarrassing to the profession – can be committed with impugnity, after admission to the bar, so long as criminal laws are not broken.
Would you like Andrew Speaker to face bar disciplinary action for his behavior this week? If his conduct is as alleged above, I wish he would be disciplined (perhaps even disbarred). However, we’re going to have to wait to see whether any laws were broken — perhaps some form of interference with the administration of justice when dealing with the immigration authorities, or the flaunting of a foreign law — before we can hope for action by the Georgia Bar’s Disciplinary Board. Failing that, e-shaming and the general media spotlight has certainly harmed his reputation and will very likely make Mr. Speaker a far less attractive choice for one’s personal injury or divorce lawyers. But, I believe the leaders of Georgia Bar should speak out on this situation and that practicing attorneys should remember the XDR-TB Incident before referring any business to the Speaker Law Firm.
Prof. Steve Bainbridge analyzed Andy Speaker’s potential for civil liability for FWI (flying while infected), in a posting entitled “Flying TB Infected Lawyer’s Liabilities” (May 31, 2007; via Elefant at LegalBlogWatch). Steve noted that, without a convictin, ”Georgia doesn’t appear to have a legal ethics [rule] under which Speaker could get in trouble.” [update: see "The Legal Questions Behind the TB Case: Incident highlights evolving government powers to prevent epidemics," Fulton County [GA] Daily Report/Law.com, June 8, 2007]
spring morning —
the hand of a student who
may know the answer
first five syllables . . .
all he’s got
………………………… by John Stevenson – The Heron’s Nest, Vol. IX:2, June 2007
Haikumania can be contagious, but it’s never dangerous to be exposed to The Heron’s Nest‘s fine compilations of poetry. The newest edition of THN was posted online today. As usual, f/k/a’s Honored Guests were well-represented. Here are a few of their haiku from The Heron’s Nest, Vol. IX:2, June 2007:
the gleam of his wedding band
as he tends the fire
a squirrel’s leap
from fence to tree —
the certainty of her love
(in mem. Kay Anderson)
…………… by Carolyn Hall
childless . . .
I stand with the others
by the river
………………………… by paul m
more gray in my hair —
a faint scent of mimosa
sweetens the breeze
……………………………… by Billie Wilson
a single leaf
tipped with sun
a nameless bug
on my bicycle
………………. by Yu Chang