Being in between stops for the Roadshow until next week, but still having two more to do (Wednesday in Chattanooga and Thursday in Knoxville), this will again be a bit more of a short(ish), punchy offering.
A few months ago I wrote a post about things not to do in court that discussed two incidents. One of the incidents was the lawyer who took a selfie with his client in court after a successful jury verdict and posted it to social media. I explained by belief that it seemed wrong for the lawyer to have been scolded at all by the court for the incident given the age-old notion that courtrooms – unless sealed via a proper protective order – are supposed to be public, open proceedings, since they are where public business gets accomplished. I happen to think the routine imposition of such restrictions by judges is antithetical to the First Amendment right of access to court proceedings and to the ideal that what happens in the courtroom is public property. I certainly understand that some of the rules that are in place that seek to prohibit broadcasting are premised on the notion that traditional media reporting and video broadcasting can be disruptive or a distraction to the proceedings, but in 2015 when anyone with a smart phone can unobstrusively take photos and disseminate information to the public in real time about what is going on in their courtrooms (and could even use an app like Periscope to live-stream proceedings without actually being at all disruptive) should merit revisiting a lot of the rules in place in federal courts that chill public dissemination of information about court proceedings.
I had been avoiding writing anything about this more recent Illinois federal court incident where a partner with a prominent law firm was facing a show cause order over having taken photos of evidence, and tweeting about that evidence, during a criminal trial in which he was just acting as a spectator in the courtroom. Because the obvious ethics and lawyering angle didn’t immediately dawn on me.
But, there is at least one ethics rule worth mentioning for discussion so, with this week’s development that the lawyer in question sort of proposed his own sanction for his conduct in the form of making a charitable donation and performing some additional CLE and the court essentially agreed with it yesterday although it quintupled the amount of the proposed donation to $5,000 — I’m reversing course and writing just a few words about this.
Under the ethics rules in many jurisdictions, including the version of RPC 3.4(c) adopted in Tennessee and in Illinois, it is not unethical for a lawyer to “knowingly disobey an obligation under the rules of a tribunal,” if done through “an open refusal based on an assertion that no valid obligation exists.” (And, strictly speaking, although that rule does not say it is limited to a lawyer representing a client, given its title as “Fairness to Opposing Party and Counsel,” that kind of limitation is pretty strongly implied.) Of course, this lawyer was never going to be in a position to do that because he first quickly stated he hadn’t seen the sign and then relatively quickly apologized for and tried to mitigate the repercussions of the conduct. The Show Cause order lays out all the various levels of court rule that were involved here, starting with Federal Rule of Criminal Procedure 53 and working all the way down to the posted sign. So there would be quite a few rules that a lawyer wanting to make such a challenge would have to claim to be openly defying. The only other rule it seems like could be used to come after a lawyer for this kind of conduct in their role as a citizen would be RPC 8.4(d), but it seems to me the policies that impose these kind of restrictions are more prejudicial to the administration of justice than what this lawyer did.
I do wish that one of these days there will be an appropriately high-profile vehicle that serves to spur a conversation about why our profession doesn’t do more to challenge these kind of restrictions in federal courts. Of course, that it is easy for me to say sitting here on my laptop and not in this lawyer’s shoes. And, it’s especially easy for me to say when I’m likely to merely comply with the same sort of rules here in the federal district courts in which I practice rather than attempting to personally make any such waves.