People often think of lawyers and judges differently. And, to a large extent, they should. In almost every situation, someone cannot become a judge without having been a lawyer first. But once a lawyer transforms into a judge, their role in the judicial system becomes radically different and they now have a new set of ethics rules to which they have to comply.
Yet, lawyers who become judges are still human beings and lawyers who become judges can be plagued by some of the same flawed aspects of being human as lawyers who never become judges.
This post for your Friday wants to offer up 4 very recent examples – 2 involving lawyers and 2 involving judges – of human beings all demonstrating the same variation of a common flaw: Not knowing when to simply not say stupid things out loud (or in digital format).
On back-to-back days earlier this week, The ABA Journal online had stories about two different lawyers (who likely would have hit it off if they knew each other) getting in trouble for communications to or about clients that were roughly equally ill-advised although they involved the use of two different means of electronic communication.
The first was a New Jersey lawyer who has now been publicly censured over a text communication to a criminal defense client. The client in question had ceased paying the lawyer and the lawyer had tried on two occasions to be granted leave to withdraw but was unsuccessful as the court denied the withdrawal motions. Despite being stuck with having to pursue the representation (or perhaps because of it), the lawyer sent a text to his client that the ABA Journal described as follows:
In a text, Terry told the client he wouldn’t prepare in the weekend before the trial without getting paid first. Then he wrote, in all capital letters: “HAVE FUN IN PRISON.”
That text ultimately did manage to get the lawyer out of the case as the client showed it to the judge and the judge then removed the lawyer as counsel. But it also resulted in the public censure. At core, the ethics rule the lawyer was deemed to have violated was a conflict of interest rule by placing his own personal interest in getting paid ahead of his obligation to diligently represent the client.
The second was an Iowa lawyer who allowed himself to get too worked up on Facebook — enough to publicly disparage a client. While, as things currently stand, the lawyer has only been the subject of negative publicity, it remains a real possibility that a disciplinary proceeding could be part of the lawyer’s future. The ABA Journal treatment of the core of what happened is pretty succinct so I’ll just offer it up for your reading:
In the post, Frese told of a meeting to help prepare a client for trial on federal drug and gun charges. The client told Frese he would have a hard time connecting with blue-collar jurors because he hadn’t “had to work for anything in your life.”
Frese wrote that he was “flabbergasted” by the comment because anyone who knows him is aware of his modest background. Frese wrote that the man is an “idiot and a terrible criminal.”
“He needed to shut his mouth because he was the dumbest person in the conversation by 100 times,” Frese wrote. “You wonder why we need jails huh?”
The lawyer deleted the post in question after he was contacted by the Associated Press about it. The article points out that the AP was able to piece together from what was written exactly who the lawyer was talking about even though the lawyer didn’t use the name of the client in the post. The Iowa lawyer’s story highlights one of many reasons why lawyers shouldn’t be writing about their client’s matters without express and clear consent from their client. Of course, technically, the lawyer made the situation even worse by what it is reported that he said to the AP when contacted:
Frese told AP that he told the client he was in jail because he was terrible at what he did, and they left the meeting on good terms. He didn’t immediately respond to a voicemail from the ABA Journal seeking comment.
On the judicial front, Law360 had two examples reported on the same day of judges demonstrating problems with communications as well. One of the judges in question also hails from New Jersey. That judge, as Law360 explained, was censured for inappropriately making certain when communicating to court staff about his own personal child support case to emphasize his status as a judge. This came across as an obvious attempt to use his judicial office to achieve special treatment. The other judge highlighted in Law360 this week ended up later engaging in actual conduct that was much worse than the original communications but still also managed to allow the ready access of text messaging to start him down the bad path. As with most Law360 articles, you will need a subscription to read the full article, but you can get a strong sense of the Jeopardy category of wrongdoing from the opening blurb which explains the circumstances for which he was now offering an apology to a state ethics body in an attempt to avoid discipline:
An ex-Pennsylvania judge facing discipline for exchanging sexually explicit text messages and eventually sleeping with the girlfriend of a man participating in a court-mandated rehab program he oversaw ….
These are, unfortunately, not earth-shattering examples of “new” problems in the human condition. They do though tend to highlight how much easier modern technology makes it for well-educated professionals to somehow make really poor judgment calls when technology makes it easy to do so and to do so rapidly.