I am looking forward to the opportunity tomorrow to speak at a seminar put on for, and sponsored by, the young lawyer’s division of the Tennessee Bar Association. I will get to speak about ethics issues that can arise when dealing with difficult counsel. I’m hoping I haven’t been invited in order to be the example for the crowd of what constitutes a difficult lawyer to deal with.
With luck, I’ll manage to spend a some time exploring the persistence of variations of the “golden rule” as guidance in almost all cultures, remind folks about the restrictions a variety of ethics rules (including RPC 3.5(e)) can impose on conduct in discovery, and let those in attendance walk away with a list of six practical ideas to keep in mind at all times when dealing with the kind of opposing counsel that makes this job more stressful than it has to be.
In the meantime, if in reading this you think you might be one of those difficult-counsel types, this recent news article offers an object lesson of how your conduct can not only make the underlying case more difficult to deal with but can spawn further unpleasant litigation (and negative publicity) down the road.
It is not every day that a contempt case against a Tennessee lawyer gets some national coverage, but it also is not every day that a celebrity former television judge and former candidate for District Attorney has a criminal contempt ruling and sentence of 5 days in jail against him affirmed on appeal.
The appellate ruling is a relatively straightforward one released yesterday. (Coincidentally, almost exactly 1 year to the day of the incident in question.) My fellow Memphians will likely recall that the in-court exchange in question took place during the 2014 campaign season.
Were it not for the celebrity status of the lawyer involved, the ruling would likely not be worthy of much note. It does stand as another pretty good example, despite the effort to argue otherwise on appeal, of a lawyer who loses sight of when they stopped being engaged in zealous advocacy for a client and started engaging in conduct that really has nothing to do with advancing their client’s interests.
Pointing out exactly where that line was crossed can be something of an art form, but here it looks like it can be pinpointed to somewhere around the time where the lawyer started trying to hand two $10 bills to the judge.
Tennessee’s ethics rules get implicated by acts of criminal contempt in a number of facets. RPC 3.5(e) prohibits lawyers from engaging in conduct intended to disrupt the court; RPC 8.4(b) prohibits certain criminal acts, including ones that can reflect adversely on fitness as a lawyer; RPC 8.4(d) prohibits conduct prejudicial to the administration of justice; Typically, lawyers in Tennessee who are found in contempt of court end up also finding themselves hit with discipline, more often than not in the form of a public censure, so this is likely not the last wave of publicity regarding this story.
To clarify about that forthcoming revision to the comment to RPC 3.5(c) w/r/t restrictions on communicating with discharged jurors after trial: it impacts only the ability of trial court’s to enter routine orders — such as standing orders or local rule provision — that would place jurors off-limits from lawyers after discharge. It will not change the fact that such contact is unethical if the lawyer’s “communication involves misrepresentation, coercion, duress, or harassment.”
Why does this seem like a point worth making? Well, because of things like this remarkable public censure out of New York, that demonstrates (1) the long memories of certain lawyers, (2) how much lawyers hate to lose, and (3) the double-edged sword that is the ability to send email to anyone at any time you want.
After putting proposals out for public comment in 2014, the Tennessee Supreme Court in the span of a week in February 2015 ordered changes to Tennessee’s lawyer ethics rules that will each take effect on May 1, 2015. For those lawyers who favor a robust view of lawyer speech rights, the two orders present a mixed bag.
First, on February 12, 2015, the Court adopted a revision to RPC 7.3(b)(3) that will extend the 30-day prohibition on targeted written solicitations that currently seek to protect victims of disasters and certain types of personal injury cases to apply in divorce and legal separation cases. The Court adopted this amendment in the face of strong opposition from the Tennessee Bar Association. The TBA filed a comment that articulated the serious First Amendment concerns but also pointed out that the existing 30-day prohibition seeks to protect the recipients of written solicitation letters whereas this change is not at all concerned with protection of the individual who would receive the solicitation letter. Whether a family law practitioner will challenge this rule on First Amendment grounds remains to be seen. You can find a copy of the Court’s order here.
Second, on February 19, 2015, the Court has clarified, via a revision to RPC 3.5(c), cmt. , that Tennessee lawyers remain permitted generally to ask questions of jurors after they have rendered their verdict and been discharged from service. This clarification became necessary because revisions to our ethics rules in 2011 — designed to track the language of the ABA Model Rules on this point, created questions over whether trial courts could now routinely put post-verdict questioning of jurors off-limits through local rules or standing orders. Recognizing, among other things, that post-discharge questioning of jurors can be the only viable way for lawyers to unearth juror misconduct, the Court added new language in Comment  reiterating that treatment of this issue should remain consistent with the approach articulated by a 1991 decision of the Tennessee Supreme Court. A copy of this order can be found here.