This was no peppercorn

In Sunday's Milwaukee Journal Sentinel, community columnist Chuck Baynton, who is a physician and a self-described "peace activist" (normally a synonym for "left wing" activist), tries to play the lawyer's game of hypotheticals to show that Justice Michael Gableman's arrangement with Michael Best was a gift.

He plays it like a guy who went to medical school.

But, in fairness to Dr. Baynton, he's not the only one. Others ahve done the same thing, essentially arguing that Gableman should be subject to professional discipline - (and perhaps even criminal charges under chapter 19) - because the deal that he cut with Michael Best was "too good." The firm didn't, in the view of these two, get "enough" for its services to be something other than a gift.

Think about that for a minute. The argument is that people's careers should be ruined because of a subjective after the fact determination that the deal was just wasn't good enough for the firm.
Dr. Baynton supports this with the reductio ad absurdum suggesting that we'd call it a gift if Michael Best worked for a dollar or a Megabucks ticket. Maybe we would.

Although there is a presumption in the law against requiring that consideration necessary to support a contract to be more than illusory (hence the famous reference to a "peppercorn" being sufficient), we might want to interpret the Judicial Code and Chapter 19 a bit differently. (In fact, I suggested that in one of the first posts I wrote about this.) Perhaps there are some forms of consideration too obviously insubstantial to support the provision of services to a judge or other public official. Maybe a dollar or a Megabucks ticket would fall into that category.

But that's not this case.

This case involved a contingency arrangement in which a lawyer agreed to accept fees only if he won and, even then, only those fees that might be awarded to him on application to the state claims board.
How do we tell if that could be adequate consideration?

Well, one thing we might do is look to see if lawyers ever enter into such arrangements in other contexts where there is no suggestion of a gift. When we do that, we see arrangements that look an awful lot like this. Lawyers in civil rights and class actions cases do it all the time. They agree to accept fees only if they win and, even then, to limit themselves to whatever fees might be awarded on application to a tribunal, usually the court that decides the case.

That is this case.

In almost a month of public discussion of this matter, I have only heard two responses to this. The first is a non sequitur. It says that those arrangements are different because they almost always involve representation of a plaintiff.

But that doesn't tell us why the client's position in the caption ought to matter. These contracts are almost always with the plaintiff because the governing law generally permits - at least in the great run of cases - only plaintiffs to recover. Not true here. The governing statute expressly permits awards to prevailing respondents (the equivalent of a defendant in an ethics case).

A better - but still insufficient argument - focuses on the likelihood of fees being awarded. Note that this argument can't rest on the fact that fees are awarded only if the client (Justice Gableman) prevails. That's true of all contingency arrangements.

Instead, one must argue that it should have been clear to Justice Gableman and Michael Best that it was improbable that the state claims board would award fees even if he won.

But why would they have thought that? The statute is on the books and clearly permits the payment of fees. The fact that it has only been used - and could only have been used - one time reflects nothing more that ethics complaints against judges are rare, not that this type of arrangement is unusual or that fees were unlikely to be awarded. That they were not fully paid in the only case in which the statute has been - or could be - used doesn't tell us much about what would happen here.
The best thing that this argument has going for it is that it was likely that the legislature would have had to approve a fee award. That does make the recovery of fees improbable. Why would we assume that the state claims board and legislature would not honor the fee request of a sitting Supreme Court justice?

To be sure, there were reasons - including political reasons - for the firm and Justice Gableman not to enter into such an arrangement. If I were in the place of either, I might have chosen not to do it. But it's quite another matter to say that the arrangement was unethical or illegal.

I have yet to read an effective and thorough response that supports the claim of illegality. I have seen references to "smell tests" and "gut checks" and I respect that. But we don't send people to jail or remove elected officials from office for misconduct based on olfactory or gastrointestinal disruptions. I have seen off the cuff ipse dixits from out of state law professors (although Professor Gillers apparently agrees with me that the arrangement was not improper.). But mostly I have seen sneering and snarking - accompanied by legal analysis that is the equivalent of holding up a sign at a football game. I have seen mischaracterization of the arguments that I and others have made and a failure to engage that is more consistent with cheerleading than discourse.

Again, recusal is another matter. More to follow.