Amsted Rails Against Law Professor's Arguments Against Alleged Ethical Violations at CIT
Antidumping duty petitioners' "notice of supplemental authority" in a case over whether Amsted Rail Co.'s former counsel violated ethical rules in an injury proceeding is neither supplemental nor an authority, plaintiffs in the matter, led by ARC, argued in a Nov. 3 reply brief. The supplemental authority, which included a declaration from Georgetown University Law Center ethics professor Michael Frisch and accused the plaintiffs of abusing the litigation system, could have been filed "contemporaneous with the [petitioner's] motion to vacate the temporary restraining order," and it is not an authority since "it is not a statute, regulation, or decisional law," the motion said (Amsted Rail v. ITC , CIT #22-00307).
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The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of freight rail couplers, and originally employed the Wiley law firm, where Daniel Pickard was a partner at the time, to represent it. Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway & Torley (M&T) to start the prior injury investigation. ARC then withdrew from the petition, leaving Pickard to continue the case with M&T and a labor union that replaced ARC. The ITC issued an administrative protective order (APO).
In that investigation, the ITC unanimously voted that the U.S. industry was not materially harmed. During the inquiry, Pickard moved from Wiley to Buchanan Ingersoll. The injury determination was issued in June, when the APO covered only Pickard and two non-attorneys at Wiley. After the determination, in July, Buchanan filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan.
Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time including Mexican imports as well as Chinese ones, with M&T and the union standing as the two petitioners. Pickard, who represented ARC, included Mexican imports in the petition, knowing that the only Mexican imports came from ARC's affiliate ASF-K, a maquiladora factory and fellow plaintiff in the court action. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and dismissed from the APO (see 2210120062). The company filed suit at the Court of International Trade to argue that the ITC's decision to give business proprietary information access to Buchanan violated the Administrative Procedure Act and its 5th Amendment rights (see 2210170084).
Pickard, now solely representing the petitioners, dubbed the Coalition of Freight Rail Producers, moved to add various supplemental authorities to the case (see 2211030029). The first outside source concerns Frisch's declaration. Replying to the professor's comments, the plaintiffs said that Frisch does not deny the coalition and ARC are materially adverse, showing "his unfamiliarity with the Current investigations, along with antidumping and countervailing investigations generally." The professor said any remedy would benefit U.S. producers, though this doesn't mean the coalition and ARC are aligned, especially since ARC is also an importer, the plaintiffs said.
Frisch also does not deny that D.C. Bar Ethics Opinion 309, issued in 2001, outright bans advance waivers of conflict "where two matters are substantially related to one another." The plaintiffs told the court that "[a]stonishingly, Mr. Frisch nowhere even acknowledges this categorical prohibition." The plaintiffs further said the only legal authority Frisch relied on, the Restatement of the Law Governing Lawyers Section 75, excludes the issue of representation of multiple clients with conflicts of interest.
"In short, the white space in the Frisch Declaration speaks louder than its printed text," the brief said. "Plaintiffs’ efforts to disqualify the Attorney and his Firm based on the Attorney’s brazen betrayal, therefore, are not 'an abuse of the litigation process.' Unfortunately, the same cannot be said about the submission of this 'Supplemental Authority.'"