Category Archives: Rules of Professional Conduct

State v. Lindsay: When Attorneys Act Unprofessionally

VERY interesting opinion from the WA Supreme Court discusses the issue of attorneys having bad manners in court.

In short, the WA Supremes reversed a defendant’s conviction because the lawyers “engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.”

http://www.courts.wa.gov/opinions/pdf/884374.pdf

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper. A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle. Nevertheless, section 3.2 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems

Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.

http://www.abajournal.com/news/too_much_information_blogging_lawyers_face_ethical_and_legal_problems/

My opinion?  I’ve blogged for some time now.  Early on, I discovered that my ethical duties under the Rules of Professional Conduct (RPC’s) clearly prohibit me from discussing certain things.  This is ESPECIALLY true in matters involving judges and clients.

For example, RPC 8.2 prohibits lawyers from making making statements against judges that ” . . . the lawyer knows is false or with reckless disregard as to its truth concerning the qualifications, integrity, or record of the judge.”  Indeed, the rule goes on to say that lawyers take an active role in quelching “bad talk” about judges: ” Lawyers . . . should support and continue traditional efforts to defend judges and courts from unjust criticism.”

Additionally, RPC 1.6 — which addresses client confidences/secrets — holds that a lawyer SHALL NOT reveal confidences or secrets relating to the representation of a client unless the client consents after consultation.

Lawyers, be careful.  Treat clients and judges like gold.  The internet doesn’t exist in a vacuum . . .