Did you watch Lance Armstrong and Oprah last week? By now, you’ve certainly heard that the disgraced cyclist has admitted to the talk show queen that he doped his way through his seven Tour de France wins.
His lawyers advised against the interview, The Wall Street Journal reports.
Armstrong has had plenty of experience with lawyers over the years. (You don’t amass a $125 million fortune and worldwide fame without a few attorneys negotiating the terms along the way.) Aside from the standard business dealings that come with being an elite athlete, Armstrong’s legal team spent time in court defending his once-good name against doping accusations through libel suits. Armstrong conceded in the interview, “To be honest, Oprah, we sued so many people.”
And he prevailed. In 2006, The Sunday Times settled a libel lawsuit with Armstrong for $500,000, which is now suing to get the money (plus fees) back, ESPN reports.
Clearly, no lawyer would want to file a libel suit on Armstrong's behalf these days, but what about one year ago? If Armstrong -- or any other prominent athlete -- had walked into your office in 2012 and said, "Represent me in this lawsuit," would you have taken the case? Would you have taken his word that he didn't use performance enhancing drugs (PEDs)?
Now that we know that Lance was lying, we also have to wonder about the ethical implications for his lawyers.
ABA Model Rule for Professional Conduct 3.1 provides: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. Since Armstrong is based in Austin, Texas, and his lawyers have filed in Texas in the past, we turned to the Texas Rules of Professional Conduct for a closer look at a lawyer's obligations in pleadings in the Lone Star State. No surprise -- Texas Rule 3.01 closely tracks the ABA language regarding false pleadings.
The notes to the Texas rule explain that a filing or contention is frivolous if it contains knowingly false statements of fact. If Armstrong's lawyers knew the truth all along, they could be in trouble.
So far, there's no evidence to suggest that Armstrong's attorneys acted unethically. But how will Lance Armstrong's revelation affect future sports libel lawsuits? Consider the number of doping cases in cycling. With the prevalence of PEDs throughout the sport, should any lawyer advance a defamation or libel case on a cyclist's behalf without evidence of the athlete's innocence? Should we apply the same level of skepticism to baseball?
Last year, Seventh Circuit Judge Richard Posner made headlines when he compared an attorney to an ostrich, noting that the "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless." Clearly, there's a difference between ignoring precedent and ignoring speculation about a prospective civil litigant, but have we reached the point at which vehemently claiming that an athlete didn't use PEDs requires sticking our heads in the sand to avoid the glaring evidence of rampant drug use in sports?