“GOTCHA!”
My legal ethics colleagues have their briefs in a bunch over a case in which an enterprising news media reporter dredged up old, old —but scintillating!—professional discipline on two lawyers taking on the defense of a much-hated defendant in a sensational and heinous crime.
One had been suspended for taking client money, but was eventually reinstated. The other had been reprimanded for having a sexual relationship with a client. The idea, of course, was to make the lawyers look bad. The issue is whether this is a fair use of attorney discipline, especially in the latter case.
The episode is similar to the Hader Gotcha, which we have discussed here several times, in which deep social media divers look for embarrassing youthful social media posts from the past, even from teen years, to use to turn the public against the individual, or at least to force the target to grovel an apology. It is also similar to the Brett Kavanaugh hit from Dr. Blasey-Ford, though I doubt this would occur to my overwhelmingly “woke” legal ethicist friends.
The lawyer raising the issue represents attorneys faced with disciplinary complaints, and asks why this is happening, feels that it is unfair, since the discipline wasn’t recent and had nothing to do with the current case, and thinks it is wrong that the reporter didn’t bother to talk to the bar association or the lawyers themselves to get proper context. He also asks whether anything can be done about it, including, perhaps, not publicizing some varieties of lawyer discipline.
The lawyer also asks,
Do I need to warn my clients that a collateral consequence of discipline is that if they ever take a high-profile case, the press might dredge up old dirt when covering the case?
This is too easy:
- Welcome to the internet age! No, there is absolutely nothing that can be done about this, except to create a more ethical culture of journ…sorry, I couldn’t get that out without laughing.
- The legal profession has never been able to explain to the public, and apparently not to journalists either, though they should be less ignorant, that representing accused criminals and guaranteeing even guilty citizens their rights isn’t an adverse reflection on a lawyers’ character. As a result, someone will always think it’s fun, justified and fair to look for dirt in a defense lawyer’s personal or professional past. Thanks to the web, it’s easier than ever.
- Yes, you need to warn your clients. I’m surprised you weren’t doing so already.
- And it’s not just legal discipline. Anything potentially embarrassing that can be found on the web, including social media posts [Lawyers: Don’t use Twitter!] can and will be dug up and weaponized.
- As a result, past discipline, and any other potentially embarrassing information about a lawyer now falls into Rule 1.4 territory, information the client has a right to know and must be informed about in order to participate in his or her own case.
- No, all lawyer discipline should be reported. The public has a right to know.
Ethics Alarms 
You cannot imagine how grateful I am that my Facebook account, rarely used, is no more than 5-6 years old. And I’m not even a lawyer. There is no Twitter account.
Never use social media.
Not all lawyer discipline should be public and in my state, some forms are not (private admonitions).
If the goal of discipline is to protect the public AND instill in the lawyer a renewed diligence in adherence to the rules, a private form of discipline can accomplish both goals.
I am preparing to make my second ever complaint against a judge. He is relatively new, but has an acute case of robitis. His mistakes, some of which are theoretically serious, all derive from the fact that he lost his impartiality. He may not be a bad judge (I doubt I will ever appear in front of him again), but right now is the time when he needs a stern warning that he has to do better. As much as he has berated me in open court, a private warning to him would probably do more good than a public reprimand (precisely because the masses do not have the sophistication to appreciate the ethical considerations involved).
On a related note, a friend and classmate had his legal career derailed by a 60-day suspension that was public. Stupid mistake; thought he was smarter than he was, and was too proud to talk to a number of lawyers around him about his issues. These are not unique human failings; they are practically universal.
He messed up. He was suspended. He threw in the towel. If the judge I am reporting reports me and I am publicly disciplined, I might do the same. I am fine if someone says I screwed up; I am fine if I lose a case (somebody has to), but to be unjustly accused of misconduct in open court can make you question whether it is worth it.
I think the judge did not know who he was talking to. He will find out. Misconduct? In the ethical ring, those are fighting words.
Rant over.
-Jut
Great rant. Isn’t it odd not to real the least serious discipline, that is also the most easily excused? Why hide it? And how many admonitions does a lawyer get without disclosure? An infinite number?
Not necessarily. My friend, a criminal defense lawyer, got called for jury duty. He did not clearly answer questions about a criminal case in which he was the defendant (he pled; no conviction; dismissed; expunged (a confusing enough area for non-lawyer (had a juror recently mess up here too on voir dire)).
He should have come to me. The next day, the prosecutor had his record and lured him in to his deception (everyone around him would have said come clean (I would have asked to answer in private from the outset, but that is me)). Judge and prosecutor both reported him, I think. First offense; public suspension; career over. He’s teaching scuba diving in Honduras as we speak.
Wait a minute….
-Jut
I should clarify a bit to respond to your question, Jack.
The Supreme Court in my friend’s case holds the position that dishonesty in a court proceeding, even if you are in the position of a non-lawyer (a juror), reflects in your fitness to practice law (I don’t recall if this is an 8.4 violation, but might have been).
They also say that any misappropriation of funds of a client (even $1.00) is serious enough to warrant disbarment. I don’t disagree, but even good people can be lazy, sloppy, or careless enough to think $1.00 is no big deal. And, it is no big deal, UNLESS it is your job to make sure that dollar gets back to its rightful owner.
Of course, most of the time, it is more than $1.00, and it is not accidental.
-Jut
You get to ask to answer voir dire questions in private? I had no idea. Does that count in federal court too?
Bottom line: If you have ever made a controversial post on the Internet (and you know it if you have) you must abase yourself before the public, your professional peers, and attach the equivalent of a Surgeon General’s warning to your shingle. In other words, you are damaged goods, and that bell cannot be unrung.
Good luck, lawyers. You are now a victim of your own success.
Success? What are you talking about. I am still faking it in the hope of making it.
-Jut
Funny.