By RICHARD MEEHAN
The Cool Justice Report
May 5, 2008
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
Roger Clemens took several high and tight fastballs under the chin when the New York Daily News broke a story that the embattled pitcher had a decade long affair with country singer Mindy McCready.
McCready has not denied the allegations in the News story, saying: "I cannot refute anything in the story."
Following the revelation, Clemens' lawyer, Rusty Hardin, issued a denial, once again placing Clemens' credibility in doubt.
Hardin launched the media attacks on Clemens' former trainer, and steroid accuser, Brian McNamee. It was Hardin who stood by and allowed the Rocket to testify under oath before Congress. Now the FBI is investigating whether Clemens perjured himself in his sworn denials of the McNamee allegations.
Hardin brought a defamation of character lawsuit on behalf of Clemens against McNamee in Houston federal court. The essence of the suit is a claim that the Rocket's reputation has been sullied by the allegations of steroid use. Clemens' reputation and, more importantly, his credibility are the central focus of this lawsuit.
April was a particularly tough month on the former major leaguer, tougher than any adversity he ever faced during his storied career. Reports have now surfaced linking Roger to a Manhattan barmaid as well as the former wife of a PGA golf pro.
In addition to the McCready controversy, lawyers for Brian McNamee have now fired back at Clemens' counsel Hardin, seeking his disqualification in the Rocket's defamation lawsuit against McNamee. In a motion filed in Houston federal court last month, McNamee's legal team pointed to Hardin's brief representation of Yankee pitcher Andy Pettitte as having created a potential conflict of interest under Texas Disciplinary Rules of Professional Conduct.
McNamee attorney Richard Emery claims that in the time around the release of the Mitchell Report on performance enhancing drug use in baseball, Hardin met with Pettitte and Clemens together. Both retained Hardin, who immediately sent two investigators to interview McNamee on behalf of both players.
In legal arguments before Houston District Court Judge Keith Ellison, Richard Emery argued that Pettitte is a likely witness for the defense of his client in the civil suit. Citing provisions of the legal canons of ethics, Emery argued that, although brief, Hardin's involvement with Pettitte prohibits the lawyer from cross-examining the Yankee ace when McNamee calls Pettitte to the witness stand.
In contrast, Hardin's associate argued that the representation was never formalized and did not include any revelations by Pettitte to Hardin that had not been a matter of public statements later made by the pitcher. He argued, as well, that Clemens is entitled to counsel of his own choosing, and that he would be greatly disadvantaged if Hardin was forced to withdraw. Clemens' team has offered the suggestion that another lawyer can be appointed for the limited purpose of questioning Pettitte, a practice that has some support in other cases.
Hardin's associate noted that the disqualification of Hardin would cause Clemens great harm because Hardin's team has done so much on the case. One wonders if Hardin's approach to the case hasn't done Clemens more harm.
Judge Ellison was reportedly conflicted, considering what the legal precedent requires in such a case, citing case law going both ways. On the one hand the judge must balance Clemens' right to have the lawyer of his own choice and the rules governing lawyer conflicts and duties of loyalty to all clients.
At the heart of the issue is the duty owed by a lawyer to each client. That duty includes maintaining client confidences. Once an attorney is retained it is presumed that the relationship is a confidential one. Trust between lawyer and client is the cornerstone of such a relationship. In a controversy of this magnitude it can be presumed that Pettitte had confidential communications with his counsel. Facing that same lawyer as an adversary in a later trial offends a number of the Rules of Professional Conduct. Law students are taught that jointly representing two parties in a controversy is fraught with ethical landmines. When Hardin agreed to the joint representation he took a risk that the interests of the two clients could become adverse. Wasn't there enough money and notoriety in handling just Roger Clemens? What good did this lawyer's joint representation do for either man?
Pettitte since has retained separate counsel and also admitted to a brief use of HGH (human growth hormone) to aid healing of an injury. That admission has been cited as corroboration of McNamee's story. While controversy continues to mushroom around Clemens, Pettitte has gone back to work, with most of the storm behind him. Would he have received the same sage advice if he remained with Hardin?
Hardin, on his website, boasts: ""I worship at the shrine of juries and love the challenge of persuading a group of strangers to see my client's point of view."
Mr. Hardin, it's time to do penance and withdraw from this case. Perhaps the Texas rules of ethics should contain the same preamble found in the Hippocratic oath taken by doctors, "First do no harm…"
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com