I led two legal ethics seminars for the Oregon State Bar yesterday. For some reason the issue of “using a shield as a sword ” kept coming up.
“Using a shield as a sword” is when lawyers game the ethics rules. Many local bar associations include a pledge within their creeds promising not to intentionally use the ethics rules as a tactical weapon; still, it’s not an enforceable promise. Examples are limited only by a lawyer’s devious ingenuity, but they usual involve one side creating a conflict of interest for the opposing firm or lawyer that will force the lawyer to withdraw from the case. One ploy: a lawyer recruits a key expert witness specifically because she was once a client of the the lawyer on the other side, making it impossible for her to be impeached on the witness stand by that lawyer because he would have confidential information about her that he would be bound to keep secret, even while being required to represent his current client by ripping her credibility to shreds.
What does this have to do with Yankee centerfielder Jacoby Ellsbury? Well, Ellsbury is in the process of shattering an obscure baseball record: number of times reached base on catcher’s interference during a season. Catcher’s interference refers to instances in which a catcher makes any contact with a batter or his bat during a pitch. Usually, this involves the batter’s bat hitting the catcher’s glove, as in the photo above. When that happens, a player is awarded first base. The rule is based on fairness and designed to protect the batter, but apparently Ellsbury has perfected the weird practice of using it as an offensive weapon.
Jacoby Ellsbury became the single-season record holder in catcher’s interference calls in July with his ninth instance getting rewarded for it. The record was formerly held by Roberto Kelly, who did this eight times in 1992. Since breaking the record, Ellsbury has gotten catcher’s interference called three more times, for a current total of 11 with almost a month left to the season. He is also second all-time in catcher’s interference with 23. The career record belongs to Pete Rose with 29; since Rose is baseball’s all-time leader in games played and career at bats, we would expect him to hold this record. No one else in baseball history has more than 18. Ellsbury is only five catcher’s interferences shy of Rose’s mark, and has done it in less than a third of the at bats.
When a participant in an activity governed by rules finds a way to manipulate them to her or his benefit like this, the arbiters of that activity, be it a sport or a profession like law, have to make adjustments. Another baseball shield used as a sword is the hit-by-pitch rule, where a pitcher is punished when his thrown ball hits a batter by sending the batter to first base. Some batters, however, are adept at intentionally allowing themselves to be hit. Once it was clear that this was becoming common, a rule was added allowing the umpire to refuse to allow a batter to take first base when he thinks the batter didn’t make any effort not to get hit. (The rule is almost never enforced.)
The law has done this with some ethics rules that started being used a swords. For example, there is a rule that prohibits a lawyer from representing a client in a case where the lawyer might have to be a witness. (It has been suggested in jest that this was to prevent a spectacle like those in Woody Allen’s “Bananas,” or in Tim Burton’s “Big Eyes,” where someone examines himself in a trial by asking himself questions and running back and forth from the witness chair.) Once litigants started using that prohibition to demand that lawyers be excluded from cases, judges began enforcing the rule more leniently. Typically, a judge will table the objection and see what happens. Maybe the lawyer won’t have to be a witness. Sword blunted.
Ellsbury’s sword has to be blunted too. All that is needed is a slight rule change allowing an umpire, in his discretion, to refuse to give Ellsbury (or any batter)a cheap base when his bat hits the catcher’s glove on a swing, on the grounds that he was trying to do that. Like the similar rule on hit batters, the rule will almost never be used, maybe never used. Still, it will send an important ethics message.
It’s not nice, or ethical, to use shields as swords. That’s not what they are made for.