f/k/a . . . the archives

June 1, 2007

should they disbar TuberculEsq?

Filed under: Haiku or Senryu,viewpoint — David Giacalone @ 4:15 pm

 noyabutsNS   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.

 SpeakerAndrew   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. 

checkedBoxS 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.

pointerDudeNeg   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

 

 

the rooster’s
first five syllables . . .
all he’s got 

 ………………………… by John Stevenson – The Heron’s Nest, Vol. IX:2, June 2007

THNLogoG 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:

 

deep autumn
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

lucky bamboo
a single leaf
tipped with sun

longer days  spotlightS 
a nameless bug
on my bicycle

 ………………. by Yu Chang

8 Comments

  1. Mr. Speaker is NOT a Naval Academy grad. He left after two years.

    http://www.navytimes.com/news/2007/06/navy_tbguy_070601w/

    Comment by molly — June 1, 2007 @ 6:40 pm

  2. “Should they disbar TuberculEsq?”…

    David Giacalone has some thoughts on now-notorious Atlanta personal injury lawyer Andrew J. Speaker, who doesn’t seem to have lived up very well to the Lakoff-prescribed billing of “public protection attorney” (Jun. 1)…….

    Comment by Overlawyered — June 1, 2007 @ 11:03 pm

  3. Thanks for the information, Molly. I just corrected the posting above. According to the article that you cited, “Andrew Speaker, 31, entered the academy in 1993 with the class of 1997, but he left before the 1995 fall semester, said academy spokeswoman Judy Campbell. She would not give a reason for his early departure. Midshipmen are permitted to leave with no penalties before their junior year.” Navy Times , “TB patient attended Naval Academy for two years,” June 1, 2007.

    Comment by David Giacalone — June 1, 2007 @ 11:16 pm

  4. Thanks, David. I have linked to this via Legal Profession Blog at http://lawprofessors.typepad.com/legal_profession/2007/06/bar_discipline_.html, though I am calling him Typhoid Perry Mason or, in the alternative, Typhoid Marry. –Alan

    Comment by Alan Childress — June 4, 2007 @ 9:15 am

  5. Over at Legal Profession Blog, Bill Fritsch points out that Georgia’s Rule 8.4 “is radically narrower in its scope than the parallel ABA Model Rule. Model Rule 8.4 (c) makes it a violation to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and subsection (b) covers “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    Comment by David Giacalone — June 4, 2007 @ 4:18 pm

  6. Seems like a supercillious question. Who did he injure? His wife is TB negative and his afb smears were negative so he was deemed non-contagious. Why didn’t infectious disease experts make a big deal out of it when it was discovered on xray last January? Seems like the CDC is a day late and a dollar short here, and the media is unable to discern this. It is very unlikely he infected anyone else, and I think kicking this man when he is down is really deplorable.

    Comment by E.McSorley — June 5, 2007 @ 5:22 pm

  7. Why not claims for Negligent/Reckless Infliction of Emotional Distress – I am sure some of those people on that plane have experienced diagnosed depression, panic attacks, etc – while waiting for the results of their tests. If any turn out to be infected, how about negligent/reckless assault, if someone ultimately dies from infection, wrongful death, negligent homicide,man 2?

    What a little prick. He should invoke an “interests of justice” clause of his own – and resign his bar number.

    Comment by P. Bolland — June 13, 2007 @ 2:00 pm

  8. I think it’s not that simple when ones health is taken into account. People can do crazy and reckless things sometimes.

    Comment by Alfred Finkle — February 12, 2008 @ 2:01 pm

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