Commentary

Would Clemens be better off without Rusty Hardin?

Originally Published: April 14, 2008
By Lester Munson | ESPN.com

As part of a vigorous response to being named in baseball's Mitchell report, Roger Clemens filed a lawsuit against his former personal trainer, Brian McNamee, on a Sunday evening in January. In it, Clemens claimed McNamee had lied about him and his use of steroids and HGH. That same night, Clemens appeared on "60 Minutes," and the next day, Monday, Jan. 7, Clemens continued his assault on McNamee and the Mitchell report at a nationally televised news conference. The Clemens counter-attack continued with a series of lobbying meetings on Capitol Hill just before his February testimony in front of a congressional committee.

Some of his public relations maneuvers seem to have backfired on Clemens. He is now the subject of an FBI investigation.

But the lawsuit remains pending in federal court in Houston and could soon become yet another problem for Clemens. Last week, McNamee's attorneys were in court, offering powerful arguments that Clemens' attorney, Rusty Hardin, should be disqualified from participation in the preparation and the trial of the lawsuit. The maneuvers raise questions about the validity of the lawsuit and Hardin's work for Clemens. Here, after a close look at the documents submitted as part of last week's hearing, are some of the questions and their answers:

What makes McNamee and his lawyers think that they can drive Hardin, one of the most successful lawyers in Texas, out of a case he filed?

[+] EnlargeRoger Clemens
AP Photo/David J. PhillipIt might not be the worst thing for Roger Clemens if Rusty Hardin can't represent him in his defamation suit against Brian McNamee.
In the days just before and after the release of the Mitchell report, Hardin was representing both Clemens and Andy Pettitte. When Pettitte admitted that McNamee was telling the truth about Pettitte's use of HGH, Hardin ended his work for Pettitte and concentrated his efforts on Clemens. McNamee's lawyer now suggests, with considerable justification and impressive legal precedents on his side, that Hardin cannot represent Clemens in a lawsuit in which Pettitte, Hardin's former client, will be a witness against Clemens, his current client. Clemens claims that McNamee was lying and that the lies destroyed Clemens' reputation. If McNamee was telling the truth, then McNamee wins the lawsuit. Pettitte says McNamee did tell the truth about his use of HGH, and that will be the centerpiece of McNamee's defense against the Clemens lawsuit. Pettitte not only said McNamee was truthful, he also said Clemens admitted his own HGH use to him. As Richard Emery, McNamee's attorney, points out, "It cannot be the case that both Clemens and Pettitte are truthful." How, asks Emery, can Hardin now cross-examine and attack the veracity of a former client? The rules of ethics that govern Texas lawyers are clear -- "a lawyer who has formerly represented a client [Pettitte] … shall not thereafter represent another person [Clemens] in a matter adverse to the former client [Pettitte]."

How does Hardin respond? What makes him think he can do something that appears to be prohibited by the rules of ethics?

Hardin wants to continue to represent Clemens, but seems to be stuck for an answer to the questions raised by McNamee and Emery. In legal briefs, Hardin offers a tortured rationale that Pettitte and Clemens somehow agree on things. Clemens says McNamee is lying, and Pettitte says McNamee is telling the truth. But the two erstwhile buddies are somehow not "adverse," Hardin asserts. Hardin and one of his own lawyers, Joe Roden, also suggest that changing lawyers would be a hardship for Clemens. Roden argued about the "time and money" already invested. That's Hardin's time and Clemens' money. The real hardship, of course, would be on Hardin, who would lose a famous client with unlimited funds. The arguments for Hardin staying in the case don't amount to much. However, they might work. There is no doubt that Hardin is a formidable presence among lawyers in Texas and a local hero in Houston. Only a judge with considerable fortitude would throw him out of a case in Houston.

Would, in fact, Hardin's departure from the lawsuit be a major hardship for Clemens?

Probably not. Clemens might actually be better off without Hardin on his team, and he might be better off without the lawsuit, too. Although Hardin has enjoyed an extraordinary career, his work for Clemens -- so far, at least -- will never make a Rusty Hardin highlight reel. They've tried everything, and almost none of it has worked. The Jan. 7 news conference that featured a secretly taped telephone conversation with McNamee started a process that has been going downhill for Clemens ever since. Clemens' testimony before the House committee, at which Hardin shouted at Chairman Henry Waxman until he was gaveled into silence, resulted in a bipartisan recommendation to the U.S. Department of Justice that its prosecutors investigate Clemens for perjury. The best thing that has happened to Pettitte, meanwhile, is that Hardin ended his work for him. Since Pettitte hired a new lawyer, Pettitte has (apparently) told the truth to investigators, was excused from testifying on Capitol Hill, and has begun the new Major League Baseball season with his popularity and reputation more or less intact.

[+] EnlargeRusty Hardin
AP Photo/Pat SullivanWithout Rusty Hardin to push it, would it make sense for Roger Clemens to continue the defamation suit?
If Hardin is disqualified from the lawsuit against McNamee, Clemens might want to look hard at the idea of abandoning the case. It was always more a tract than a legal writ, anyway -- more polemic than legal pleading. Most of it was a tribute to Clemens' success as a pitcher. It included a story about his single mother working several jobs and a description of a tough season when the Astros provided him "low run support." First, Clemens might want to dismiss the case before McNamee files his own countersuit against Clemens. If McNamee countersues, it will result in additional legal fees to Clemens and expose him to the possibility of yet another humiliating outcome. And second, even if you assume Clemens' defamation suit is solid based on the facts and the law (a wild assumption), Clemens at best would win a judgment and then be left with no way to collect from McNamee, a man of limited assets. If Clemens somehow prevailed at trial, he would have spent more on Hardin or a replacement lawyer than he would ever collect from McNamee.

Under investigation for perjury himself, Clemens has more significant legal problems than any claim he might have against McNamee.

So what's next?

U.S. District Court Judge Keith P. Ellison has the case "under advisement." He is working on a decision and might write an opinion. He must decide whether the apparently irreconcilable stories from Clemens and Pettitte are legally "adverse." He must decide whether Hardin can solve the problem by letting another lawyer handle the cross-examination of Pettitte. And he must decide whether he is willing to rule against Clemens and Hardin, two of Houston's most illustrious citizens. He could also avoid answering any of these questions by transferring the case to New York City, where McNamee made the supposedly defamatory statements about Clemens.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.