A couple of weeks ago, I read a little about two instances of lawyers, both involving murder cases, getting in a bit of a pinch based on what was portrayed as bad behavior in the courtroom. One lawyer ended up being escorted from the courtroom for attempting to make a citizen’s arrest of someone. I think we all ought to be able to agree that attempting a citizen’s arrest of anyone in a courtroom is a bad idea. I guess the backstory might matter, but here it doesn’t help justify the unjustifiable. The lawyer in question was part of a team of lawyers representing a California lawyer who is facing murder charges. One of the investigators working for the prosecution was carrying a firearm in the courtroom (presumably in a holster) and a lawyer from the defense team claimed that the investigator shouldn’t be armed, said he was engaging in a citizen’s arrest, and tried to get bailiffs to assist but ended up simply getting himself escorted from the courtroom. It’s not the exercise of good judgment, but, fortunately for the lawyer involved, I don’t think it likely gets to anything prohibited by any ethics rules.
The second incident received a bit more publicity, as does seemingly everything that has a social media component, but I don’t find myself having any problem with the lawyer’s conduct. The Wisconsin lawyer at the center of the story, after successfully obtaining a not guilty verdict for a client in a first-degree murder case, took a “selfie” with his happy client to post to social media to publicize the victory in the courtroom. The fact that the photo was taken inside the courtroom was the reason for the brouhaha but the photo was taken after the judge had left the bench. (It wasn’t something that was done in the middle of the proceedings or even in the presence of the judge like you might expect to see played for laughs in a show like The Grinder, for example.).
Now, assuming the Wisconsin lawyer had his client’s permission to post the photo on social media and, in so doing, comment publicly on the outcome (and it appears the client was a willing participant and presumably knew why it was being taken and what would be done with it), I don’t have any problem with the lawyer’s conduct at all. I have represented media entities in the past on matters involving access to court proceedings. So, I can recall off the top of my head quite old case law that makes the point that what happens in the courtroom is the public’s business. (I’m almost 90% certain the quote is something like “what transpires in the court room is public property.”) (Disclaimer: I have not gone to look at Wisconsin’s lawyer advertising rules at all to see if the lawyer might have been subject to scrutiny under some overly strict approach to preventing lawyer’s from making statements about past results.)
As the story indicates, the judge that had presided over the jury trial, however, did not share my reaction. When learning about the incident, the judge called the lawyer and demanded he return to court and explain himself. The article indicates that the judge said his concern was that jurors might have been included in the photo (which they weren’t and anyone looking at the photo could tell that) but also the stated concern that the victim’s family might see the photo. I’m not sure I’m capable of articulating this next point in the clearest fashion possible, but there’s an unspoken premise behind that concern of the judge’s — presumably they would either be upset because the prosecution went after the wrong person and the person who murdered their family member still is free or they would be upset because they think the justice system failed them by acquitting a murderer — that the family would react poorly and that unspoken premise would seem to be a much bigger problem to address than upbraiding the lawyer for taking the selfie.
It’s too bad that this lawyer was called on the carpet by the court over this, but, as the end result was that the lawyer deleted the photo from his social media account, and the judge dropped the matter, if it happens again somewhere I wouldn’t be surprised if it plays out much the same way.