Jacoby Ellsbury, Catcher’s Interference, And The Perplexing Ethics Problem Of “Using A Shield As A Sword”


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.




Filed under Professions, Sports

9 responses to “Jacoby Ellsbury, Catcher’s Interference, And The Perplexing Ethics Problem Of “Using A Shield As A Sword”

  1. Really interesting commentary. For whatever reason, it puts me in mind of a phrase that I often employ in my professional practice, in trying to decide whether the evidence shows that a local elected official or civil servant seems to have committed a minor [or non-minor] breach of conflict of interests laws: “I never questioned an umpire’s integrity … his eyesight, yes.” The Lip was onto something profound there.

  2. Rick M.

    At the discretion of the umpire. Really? They are consistently incapable of defining the strike zone and now they must determine intent? Ellsbury has long stood deep in the box and that is not unusual. His positioning and his swing – especially since he is left handed (a major factor). Kelly was that rare right handed hitter who had a talent for lunging at the ball. Both have developed a “talent” for remaining in their assigned areas – yet manageing just enough backward thrust to get the occasional call.

    To me the catchers are well aware of this. The batter is in his “legal” position so the onus is on the catcher. Of course if you go back into baseball history – deep into baseball history – shenanigans like this – even though legal – would result in significant chin music. That whole “unwritten rule” stuff.

    Here is another obscure record I found, Jack – if it is even a record. I was writing an article on double plays and found that Jackie Jensen is the only player ever to lead the league in grounding into double plays and steals in the same season (1954). Want more? He also led the league in sacrifice flies.

    • Rick M

      Looking at my post I probably should have been clearer on Kelly. His style was unusual for getting those calls. I remember him from the late 80s and it seems strange. Any ideas on that, Jack?

  3. Phlinn

    This seems like a special case of the dress code effect, which prompted me to go try to find the original post again. https://ethicsalarms.com/2013/10/15/annals-of-the-ethics-incompleteness-theorem-the-snuggle-house-and-the-dress-code-effect/

  4. Another example of using a shield as a sword are safe spaces. Campus goers that want a safe space to protect them from exterior nastiness have a consistent habit of setting those safe spaces in public areas that people that they seek protection from would commonly use. You want to have your snuggle fest with puppies and colouring books in your dorm room, or petition the school for a classroom or multipurpose space so all your buddies can suck their thumbs with you? Go hard. You want to set up on the quad and eject everyone you don’t like? That’s not seeking a safe space, that’s stealing someone else’s space.

  5. luckyesteeyoreman

    Today in the U.S., this seems to relate well to “playing the race card,” too.

  6. Wayne B

    Only in combat is it proper to use whatever is necessary to maim or kill an enemy combatant unless it is prohibited by the Geneva Convention. Examples of this are choking an enemy with his helmet strap, banging him on the head with an entrenching tool (ala ww1, 2 and the Korean War), or using his rifle butt to dispatch him/her.

  7. Isaac

    “It’s not nice, or ethical, to use shields as swords. That’s not what they are made for.”

    What do you have against Captain America?

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