Our recent post about the reviewability of remand orders prompted a spirited off-line discussion that has morphed into today's issue.
We don't have an answer for you today; we're just launching a question into the blogosphere, and we'll see what comes back.
Here's our question.
I know that a document is multiple hearsay. I have no good faith argument as to why the document is admissible into evidence. I nonetheless offer it into evidence at trial.
Opposing counsel is asleep at the switch and doesn't object. The document is therefore admitted into evidence.
No problem, right? My conduct is not unethical and may in fact be required by the duties counsel owes to a client.
I blow the 30-day deadline in which to remove a lawsuit to federal court. I have no good faith argument as to why the case is removable.
But I figure: "Heck, I'll remove it anyway. Opposing counsel may be asleep at the switch and not file a motion to remand within 30 days. If plaintiff doesn't timely move to remand, the objection to removal is waived, and my case can be tried to judgment in federal court."
Is that ethical?
We've heard a lot of different reactions to that.
No one seems to think that counsel sins by offering inadmissible evidence at trial, hoping that opposing counsel won't object.
But people have very different reactions to removing a non-removable case, hoping that opposing counsel won't object.
Some folks have said that both types of conduct are ethical.
Some have told us that the proffer of evidence is oral, but the notice of removal is written. Rule 11 attaches only to writings and so doesn't apply to the offer of evidence.
So we changed the hypo, asking now whether the conduct is "ethical," rather than whether the conduct "violates Rule 11."
And some folks have said that they can't quite put a finger on it, but removing a non-removable case (and hoping for a waiver) is somehow more offensive than offering an inadmissible document into evidence (and hoping for a waiver).
The academic blogosphere was happy to respond when we posted about Twombly and Iqbal (here, here, and here, among other places). We'll be curious to see if that same gang (or someone else) can help us with our ethics hypo.
Have at it.