After William McCormick III was accused of rape by a fellow student, his first lawyer represented and advised him in the Brown disciplinary process at the same time the lawyer's firm was representing the University in another matter, court records show.
Walter Stone did not inform McCormick of the ties between his firm — Providence-based Adler Pollock & Sheehan — and the University, while representing McCormick when he was accused of rape in 2006, according to J. Scott Kilpatrick, McCormick's present attorney.
Rhode Island's rules of professional conduct for lawyers prohibit lawyers and law firms from representing two clients if the representation of one is "directly adverse" to the interests of the other.
E-mails released during discovery indicate that several University administrators, including lawyers in the Office of the Vice President and General Counsel, were aware of Stone's representation of McCormick.
"In terms of conflicts of interest, it would be incumbent upon the attorney to disclose any potential conflicts to his client," said Marisa Quinn, vice president for public affairs and University relations. "Brown neither recommended nor participated in the engagement of Mr. Stone as counsel to Mr. McCormick."
McCormick, a former member of the class of 2010, brought suit last fall against the University following a 2006 accusation of rape made against him by a female member of the class of 2010 and his subsequent withdrawal from Brown.
McCormick maintains that the accusation was made falsely and that, partly because the female student's father is a major fundraiser and donor to Brown, the University failed to properly investigate the claim and actively interfered with his ability to exonerate himself.
A lawyer for the female alum and her father — also defendants in the suit — maintains that his client was in fact raped.
The University has denied any wrongdoing in the matter.
The Herald is withholding the name of the female alum because she may have been the victim of a sex crime.
According to court records, two lawyers from Stone's firm represented the University in Touret, et al. v. National Aeronautics and Space Administration, et al., in which it was named as a defendant. The suit was before the court from 2004 to 2007. Stone represented McCormick in the fall of 2006.
In a January 2009 article in the National Law Journal, Brown's general counsel, Beverly Ledbetter, named Adler Pollock & Sheehan among four law firms the University typically turns to for outside legal work.
Stone — who estimated he has represented 15 to 20 Brown students in disciplinary hearings over the past 25 years — said he was "not aware" that his firm was representing the University in the case at the time he represented McCormick. He said he did not list the University as an adverse party when checking for conflicts of interest.
According to David Grossman, a Harvard Law School professor who teaches ethics, Stone should have disclosed the conflict of interest created by representing both Brown and McCormick under the American Bar Association's model rules for professional conduct. The Rhode Island rules are the same as the bar association's model rules in the area of conflicts of interest.
"The lawyer shouldn't represent the client if it would be directly adverse to another client," Grossman said.
Rhode Island rules allow lawyers to represent two clients who may present a conflict of interest only after getting both parties' written permission and only when their interests are not "fundamentally antagonistic." But McCormick never gave this permission, said Kilpatrick, McCormick's current lawyer.
According to Michael Burch, a former assistant wrestling coach who acted as McCormick's adviser in the disciplinary process, Stone directed his efforts towards negotiating an agreement with the female alum's lawyer rather than preparing for a Brown disciplinary hearing.
Burch said Stone "would scream and raise his voice at me about getting the McCormicks to sign the agreement."
Stone said attorney-client privilege prevents him from discussing the details of his work for McCormick.
Grossman said Brown would have had an interest in the negotiations even if they were performed directly with the female alum. For example, McCormick's withdrawal from Brown relieved the University of the onus of adjudicating a contentious rape allegation.
In an October 2006 e-mail revealed in the current case's discovery process, the female alum's father wrote to President Ruth Simmons, "Ruth … I am working to resolve the matter with the student who attacked (the female alum) — the goal is to have him withdraw from Brown and not have a University hearing."
During negotiations of the agreement that led to McCormick's withdrawal, the female alum's attorney wrote to Stone, "To have (McCormick) decide not to follow the course that you and I have been discussing for a week is unfair and unreasonable," after McCormick signalled reluctance to withdraw and release his accuser of any legal liability. "I can only hope that you are able to persuade him and his family of what a mistake this is."
In response, Stone wrote, "I don't think anyone is more upset than me. I acted in good faith, as did you. My gut reaction tells me that someone else is giving this family very bad advice."
Stone said that McCormick never signed a release barring him from legal action against the University, despite University efforts to compel him to do so. "If anything, I was working against Brown," he said.