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. Legal ethics

Verbal attacks on judges – “possibly” the worst approach to advocacy

I have written in the past on this blog, and in other publications, about instances of lawyers getting into disciplinary trouble over their treatment of judges presiding over their clients’ cases.  To the extent bullying and insulting a judge is a purposeful approach to advocacy for a client, it’s a flawed approach.  This behavior isn’t unique to lawyers, of course, but tends to be something that you otherwise only see in the world of sports where coaches and players can think that chewing out or belittling a referee will somehow help them get better calls in the future.

To the extent this kind of conduct isn’t really a thought out approach but a natural extension of a particular lawyer’s way of dealing with stress or people in general, it tends to be reflective of significant personal flaws in need of remedy.  Even then, it still isn’t an effective form of advocacy.  Nevertheless, the approach ends up being implemented consciously or unconsciously by a surprisingly high number of lawyers.

The most recent example I’ve come across in my reading pile is an Indiana lawyer who has been suspended for no fewer than 60 days over his conduct in a paternity and custody case.  The published order makes clear that reinstatement after the 60 days is not a given, but will depend on the lawyer’s ability to demonstrate “remorse, rehabilitation, and fitness to practice law.”  The Indiana lawyer’s beef with the judge turned on a ruling against his client’s motion for change of venue.  As the suspension order explains, the lawyer, in a filing seeking to convince the trial court to reconsider its ruling on venue, criticized the judge for a “stubbornly injudicious attitude” and for “taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.”

Counterproductive criticism hurled at the judge was not the only (and actually not even the worst) conduct for which the suspension was imposed, however.  The order also makes clear that the Indiana lawyer treated opposing counsel even more harshly than the court — threatening to file a disciplinary complaint unless opposing counsel agreed to the change of venue request and accusing opposing counsel of arranging venue in the first instance through fraud and trickery.  The Indiana lawyer also demonstrated his ability to be a triple threat by accusing opposing counsel’s clients of using the court system to further an agenda that was “possibly homophobic, racist, [and] sexist.”

The order went down last week.  Thus week the Indiana lawyer demonstrated, quite superbly, why sometimes lawyers should not speak to the media beyond just declining to comment on a story.  Today’s ABA Journal online story indicates that the lawyer in question explained that “he didn’t actually accuse opposing counsel of fraud, deceit and trickery, for example, because he is careful to use the word ‘possibly’ before making allegations….”   Giving that statement to the media was “possibly” an ill advised move.   His final quote reported by the ABA though is “possibly” much, much worse:

As far as I’m concerned I’m suspended for the rest of my life because I’m not going to have genuine remorse.

A classic violation of the first rule of holes.