by Wilton H. Strickland

People often face a great deal of pressure to conform, and this is even more true for young attorneys who strive to gain the approval of partners and peers. There comes a time, though, when you face an important choice of either pleasing everyone else or staying true to yourself. On one such occasion as a young attorney I chose the second option. Although it created problems for me, it opened doors and helped me in ways I could not have imagined back then.

When I was an associate at a Florida firm, one of the partners asked me to help him put together a defense to a lawsuit against one of the firm’s bigger clients, a waste-collection company. The lawsuit alleged that the company was violating a municipal contract that granted a competing company the exclusive right to gather all waste in that city. Among the various possible defenses to this claim, the partner wanted me to zero in on one in particular, one stemming from the U.S. Constitution: the “dormant” commerce clause.

Article I, Section 8 of the U.S. Constitution sets forth the enumerated powers that Congress may exercise, and one of these is “To regulate Commerce . . . among the several States[.]” The goal of this power is to prevent economic protectionism and allow for the “regular” flow of commerce within the Union. Ordinarily, this power becomes relevant when Congress passes a specific law, in which case a conflicting State law will be stricken down if challenged. In many other cases, though, Congress has not spoken on a particular type of commerce and leaves a void for the States to fill. If a State goes too far and passes laws that obstruct interstate commerce, courts might still strike down those laws even though they do not conflict with a specific federal law, since the State is treading on Congress’s general prerogative to regulate interstate commerce. This notion of a “dormant” commerce clause is fascinating because it allows Congress to pass a simple statute that blesses a State’s law and makes it constitutional, even though this normally requires a full-blown constitutional amendment. This also is one of the remaining examples of federal common law, which contrary to popular opinion has not gone extinct.

Anyhow, I started researching and found a recent decision by the Eleventh Circuit Court of Appeals. The decision was directly on point because it discussed whether an exclusive contract to gather waste in a particular city violates the “dormant” commerce clause. Unfortunately, the decision emphatically held that there is no violation and that this type of contract is valid, so long as the bidding process is fair and open. I knew this wasn’t what the partner wanted to hear, especially because I had learned that the client was planning to go on offense and challenge many other such contracts throughout Florida. This had the potential to be very lucrative for the firm, so I tried my best to find any competing decisions or points of distinction that might support an argument. There was no plausible argument, at least not in my view, so I wrote an email to the partner explaining that the client would most likely have to rely on other (less sweeping) arguments.

That did not go over very well, and it created a great deal of tension that built up over time and eventually forced me and the firm to part ways. I felt upset at first, but later I found my way to a wonderful new life in Montana, where the only thing I answer to is my own conscience.

While enjoying this new life I received a frantic call one day from none other than the partner, who was staring down the barrel of a malpractice lawsuit from the waste-collection company. Apparently, the partner and his co-counsel had disregarded my advice and pushed the commerce-clause argument to support a new lawsuit, one that ended with a massive sanction from an irate judge who practically quoted my email and the authority I had cited. The partner was contacting me because the malpractice attorney had found my email and wanted to talk to me about it, since it was an important arrow in his quiver. This was too rich, and I couldn’t help but let out a hearty laugh when I hung up the phone.

I don’t know what eventually happened with that malpractice lawsuit. What I do know is that it confirms the value of sticking to your guns even when doing so upsets the people around you. This might create short-term problems, but it allows you to look in the mirror every day without doubts or regrets, and it might just save your hide from far bigger problems later (I can only imagine what would have happened if I had written a dishonest and ingratiating email).