A Baseball Ethics Meets Legal Ethics Spectacular!

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You can imagine how happy this ethics mash-up makes me.

In legal ethics, a perpetual controversy involved what a law yer should do when another lawyer inadvertently sends him or her confidential information intended for the adversary lawyer’s client, and the information is a smoking gun that could win the receiving lawyer’s case. In the old days, when this involved some clerk in a law firm sending a load of documents to the opposition by mistake, the rule was simple. It was called “the Wigmore Rule,” after the famous law professor, John Henry Wigmore (above) who coined the phrase, “You snooze, you lose.”

In brief, the convention was that if a lawyer was careless enough to let this happen, he or she was at fault, and the lawyer getting the confidential documents could use them to benefit his or her client. The advent of faxes, and later the internet, and after that metadata, however, through what was largely settled law and ethics into a tangle that has yet to be settled. Technology made such errors much more common and also easier to make, and the American Bar Association’s opinions on the matter bounced back and forth like ping-pong balls, first saying that a Golden Rule approach should apply, with lawyers sending the material back to the technologically-challenged lawyer without looking it over, then concluding that lawyers should know how to use essential technology (back to the Wigmore Rule!), until the newest technological developments made them sympathetic again to lawyers who don’t get confidential metadata out of their emails. Last I checked, the state bars still don’t agree, but many are drifting back to the Wigmore Rule once again…as they should.

Now, you might well ask, how does this relate to baseball ethics?

Well, with the advent of sophisticated computer-gathered data and analytics, teams use scouting information that is dizzyingly complicated to determine such matters as how to position fielders and how to pitch when a particular player is at bat. Players can’t remember all of it, of course, and baseball doesn’t allow electronic communications to players on the field (as in, yecchh, football). Thus they all carry little cheat cards in their hats, wastebands or pockets, and glance at them during the game. (This drives my wife crazy.)

Two days ago, Tampa Bay Rays outfielder Kevin Kiermaier was thrown out at home on a play at the plate during a game with the Toronto Blue Jays. A cheat cardwith scouting report information fell out of the wristband of Blue Jays catcher Alejandro Kirk, and Kiermaier scooped it up. He then handed the card to the Rays’ clubhouse manager in the dugout. Yesterday, as the Rays led Toronto 7-1 in the bottom of the 8th inning, Kiermaier received a fastball in the back. It seemed obviously intentional, so the benches cleared as hostilities were threatened. Rays pitcher Ryan Borucki was ejected. The beaning is generally accepted to have been motivated by Kiermaier breaking a brand new “unwritten rule” holding that it is unethical to look at the other team’s cheat cards if the opportunity arises.

It isn’t helpful that Kiermaeir lied his head off, and badly too, claiming he hadn’t done what he obviously had, saying,

“We’re making this way too complex . . . I saw a few words on it, just knowing it wasn’t mine I didn’t look at it, still haven’t looked at it. Don’t even know what the heck is on it . . . A couple seconds after, I realized it wasn’t ours and at that point, I’m not giving it back. I’m not going to walk to the other dugout or find another way. They can think whatever they want over there, they’re entitled to an opinion. I’m over it, though.”

When asked if he did anything wrong, Kiermaier replied: “No.” I agree, even though he was obviously lying about what he did. If baseball wants to wade into the morass of when teams can use information that other teams negligently allow them to see, fine. Right now, however, I think the Wigmore Rule applies.

_____________________________

Pointer: Craig Calcaterra

Facts: SB nation

6 thoughts on “A Baseball Ethics Meets Legal Ethics Spectacular!

  1. I’m trying to figure out the advantage to the Rays or the disadvantage to the Jays in Kiermaier’s actions. What’s on that card? I’m guessing it’s most likely something like “Joe Bloggs will chase a curveball in the dirt if he’s behind in the count,” “never throw an inside fastball to John Smith,” or “Jimmy Jones likes to try to steal on a 2-1 count.” Like the Rays don’t already know that? They’ve got analytics, too. Or the Jays don’t have that information readily available on a laptop in the clubhouse?
    What am I missing?

    • As usual, nothing. This was discussed on “Baseball Tonight!” last night. Harold Reynolds said, “These teams have played each other 19 times this season! What could possibly be on that card that the Rays didn’t already know?” But that’s a “No harm, no foul” argument.

  2. Departing off your boring topic of baseball ethics and returning to the exciting topic of legal ethics, my understanding of my state’s view is that “inadvertent disclosure” must be disclosed (“hey, you screwed up”), but whether privilege or confidentiality has been waived is an open question. It does not have to be destroyed, but you still might not be able to use it.

    Like you said, though, views seem to fluctuate between the Golden Rule and Strict Liability.

    Not sure how that would play out in baseball, though.

    -Jut

    • All jurisdictions agree that you have to inform the lawyer who sent the stuff, though in most case they know already. Then the lawyer will try to get you excluded. This used to work before some Chicago lawyers realized that intentionally unintentionally faxing confide trial material to the adversary was a good way to get although lawyer kicked out of the case.

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