Founder of legal ethics knew unpublished opinions were dubious, saying they often cover up opinions that falsify facts or make "disingenuous use" of case law

Monroe H. Freedman
(From hofstra.edu)

How bad are "Do Not Publish" opinions, which is what many litigants receive when they receive a bad result at the trial-court level (district court) and seek an appeal in a federal circuit court? I believe they are a conduit for unlawful opinions that must be covered up, lest they be included in official reporters and wreak havoc with actual precedential law. It turns out I was in some mighty fine company when I voiced that opinion here at Legal Schnauzer; a giant in the field of legal ethics agreed with me.

Hofstra University law professor Monroe H. Freedman, who died in January 2015 at age 86, was considered the founder of legal ethics as an academic field. "He invented legal ethics as a serious academic subject,” famed Harvard Law professor Alan M. Dershowitz told The New York Times. “Prior to Freedman, legal ethics was usually a lecture given by the dean of the law school, which resembled chapel: ‘Thou shalt not steal. Thou shalt not be lazy.’ But Monroe brought to the academy the realistic complexity of what lawyers actually face. . . .

"He was on my speed dial for everything I ever did involving legal ethics. And I brought him to my classes every single year: A legal education without Monroe Freedman was incomplete.”

Now, we will use Freedman to help educate the public at large. That's because the death last year of U.S. Supreme Court Justice Antonin Scalia raises ethical questions about unpublished opinions -- such as the favorable one Scalia friend John B. Poindexter received in an employment discrimination case.

Freedman was a brassy, provocative type, and he didn't mind taking on the legal establishment. Unpublished opinions in federal courts bothered him -- and that means he likely would have been appalled by my experience in the U.S. Eleventh Circuit Court of Appeals (which covers Alabama, Georgia, and Florida). He also probably would have known that unpublished opinions short-change many litigants, across the country. Freedman's words from a 1989 speech indicate he knew that too many court rulings amounted to fraud -- with unpublished opinions providing cover:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

How refreshing to see an eminent scholar admit that "Do Not Publish" opinions are a pox on our justice system. It's likely the situation only has gotten worse in the 28 years since Freedman spoke those words. I know from first-hand experience that unpublished opinions, indeed, are a fraud -- a mechanism to favor certain parties by producing unlawful rulings that do not foul the body of actual law that is recorded in various reporters.

I've had three cases on appeal before the Eleventh Circuit, and each time the trial court's unlawful findings were upheld -- and the opinion was stamped "Do Not Publish" in the upper right-hand corner. (See Shuler v. Ingram & Associates, Shuler v. Swatek, and Shuler v. Board of Trustees.) Why was that stamp there? It's because the opinions were so contrary to black-letter law that reporting them would have created havoc in a field that supposedly is grounded in the consistency of legal precedent.

As for the case involving Scalia's pal, John B. Poindexter, this is from a March 2016 Legal Schnauzer post:

Multiple news outlets have reported that John B. Poindexter, owner of Cibolo Creek Ranch and the Houston-based manufacturing firm J.B. Poindexter and Co., received a favorable outcome when the U.S. Supreme Court refused to hear an appeal on an employment-discrimination case involving one of his subsidiaries. According to news reports, Scalia's expenses-paid hunting trip to Poindexter's ranch was a "gift."

Was it a possible kickback for court-related favors the justice had provided? The answer to that question is not clear, but it is clear that Poindexter's favorable treatment in the discrimination case (James Hinga v. MIC Group) started long before SCOTUS refused to hear the case.

How? The U.S. Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) upheld a trial court's dismissal of Hinga's discrimination claim on summary judgment. Here is the alarming part: The Fifth Circuit issued an unpublished opinion in Hinga. Based on our experience and research, that can be a sign a ruling is suspect.

We aren't the only ones who hold that opinion of unpublished opinions. A scholar who was considered the "father of modern legal ethics" also had a low opinion of unpublished opinions.

That scholar, of course, was Monroe Freedman. If I had gone to law school, he's the kind of professor I would hope to have. If I were a law professor, he's the kind I would hope to be.

We will provide details about our experiences with "Do Not Publish" opinions in an upcoming post. The subject hits close to home at the moment because we have two pending appeals in the Eleventh Circuit now -- one in our "Jail Case" and one in our "House Case."

If you ever have a case go before a federal appellate court -- in the Southeast or anywhere else -- you could wind up getting a "Do Not Publish" opinion. You likely will not find it pleasant, I assure you.


(To be continued)