An example: the Berkey-Kodak case
One of the best-known and most painful examples of this phenomenon was the Berkey-Kodak antitrust litigation in 1977, a bitterly contested private antitrust action brought by Berkey Photo against the giant of the industry.
In the heat of adversarial combat, Mahlon Perkins, an admired senior litigator for the large New York law firm representing Kodak, snapped. For no apparent reason, he lied to his opponent to conceal documents from discovery, then perjured himself before a federal judge to cover up the lie. Eventually he owned up, resigned from his firm, and served a month in prison. Perhaps this sounds like an instance of chickens coming home to roost for a Rambo litigator. But by all accounts, Perkins was an upright and courtly man, the diametrical opposite of a Rambo litigator.[440]Joseph Fortenberry, the associate working for him, knew that Perkins was perjuring himself and whispered a warning to him; but when Perkins ignored the warning, Fortenberry did nothing further to correct his misstatements. “What happened,” recalls another associate, “was that he saw Perkins lie and really couldn’t believe it. And he just had no idea what to do. I mean, he... kept thinking there must be a reason. Besides, what do you do? The guy was his boss and a great guy!”[441]
Notice the range of explanations here. First, the appeal to hierarchy: the guy was his boss. Second, to personal loyalty: the guy was a great guy. Third, to helplessness: Fortenberry had no idea what to do. Fourth, Fortenberry couldn’t believe it. He kept thinking there must be a reason. The last is an explanation of a different sort, suggesting that Fortenberry’s own ethical judgment was undermined by the situation he found himself in.
As a matter of fact, the same may be said of Perkins. He wasn’t the lead partner in the litigation; he belonged to a team headed by a newcomer to the firm, an intense, driven, focused, and controlling lawyer, who (though he was entirely ethical) put pressure on himself and pressure on those around him.[442] In a situation of supreme stress, Perkins’s judgment simply failed him.
In Berkey-Kodak, neither Perkins nor Fortenberry received an explicit order to break the rules, but sometimes lawyers do. (And in Berkey-Kodak, Perkins’s behavior, ignoring Fortenberry’s whispered warnings, amounts to a tacit instruction to Fortenberry to say nothing.) What guidance do the ethics rules give when this happens? ABA Model Rule 5.2(a) denies the defense of superior orders to a subordinate lawyer ordered to behave unethically, but Rule 5.2(b) states that a subordinate may defer to “a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” The problem is that the pressures on subordinate lawyers may lead them to misjudge when a question of professional duty is arguable and when the supervisor’s resolution of it is reasonable. Remember that Fortenberry “kept thinking there must be a reason” when he heard Perkins perjure himself before a federal judge. This was not even close to an arguable question, and there is nothing reasonable about perjury - but the very fact that it was Fortenberry’s respected supervisor who committed it undermined his own confidence that he understood what was reasonable and what was not. When that happens, Rule 5.2(b) will seem more salient to an associate than the bright-line prohibition on wrongful obedience that the first half of the rule articulates.[443]