Once again I have to say “I don’t understand this story at all.“
If you recall “My Cousin Vinny,” as almost all lawyers do (and fondly), Joe Pesci’s fish-out-of-water defense lawyer annoyed imposing Southern judge Fred Gwynn by first appearing in court wearing a leather jacket, and then showing up in the suit above because it was the only one he could acquire at short notice.
At least he tried.
While Ethics Alarms has taken the unalterable position that when children are forced to attend school via Zoom, what may appear in their homes are not, in fact, “in school,” a lawyer who appears before a judge via Zoom is still, in fact, “in court” and before a judge. Why? Because the judge says so, that’s why. And as Vinnie soon learned, when a judge says “Jump!” the only responsible response is “How high, Your Honor?”
Perhaps a Delaware lawyer named Weisbrot has never seen the movie. He complained to Delaware Vice Chancellor Joseph R. Slights III i ex parte “that [the court] would not consider an application from him because he “was not wearing a tie.” The Vice Chancellor responded, “That is true, as the record reflects.” BUT…
What the record also reflects is that Mr. Weisbrot appeared in court for trial (via Zoom) on Tuesday in either a printed tee-shirt or pajamas (it was difficult to discern).
In other words, “It’s true you weren’t wearing a tie, but a greater problem is THAT YOU WERE WEARING FREAKING PAJAMAS!”
Mr. Wiesbrot responded by channeling his inner (and outer) Vinnie by, in his next appearance via Zoom before the same judge, in something less than the kind of attire he had to know the judge expected:
Mr. Weisbrot ignored that direction; he appeared in a sport coat and open-collared shirt; I refused to hear his “application” and then directed that he go off camera. He then refused the Court’s direction.
As I said at the beginning, I don’t understand this at all. Judges have nearly total power to dictate that a lawyer (or a party) appear and comport themselves according to that judge’s whims. If a judge ordered me to talk like Donald Duck, I would do it. What’s the big deal about wearing a tie? Why would it ever be competent and responsible to fight a judge about that? In the end, it’s the client who is likely to be harmed, and that is a breach of a lawyer’s ethical duty.
It gets worse, believe it or not. Weisbrot claims that a “medical condition” prevents him from wearing a tie. Right. Would it prevent him from wearing a tie with his collar unbuttoned? Since my mind is on Danny Kaye today, as I am preparing the 2020 version of the Ethics Guide to “White Christmas,” i recall that New York actor and good friend Brian Childers went on stage as Danny while suffering a painful shingles attack. Danny Kaye always wore a sports jacket and black tie, and Brian did too, though the fabric touching his neck was excruciating. That’s because he was and is a professional.
The judge was both dubious and unimpressed with Mr. Weisbrot’s excuse:
Finally, Mr. Weisbrot reports for the first time in his ex parte email that a medical condition prevents him from wearing a tie. He states that “he had hoped to explain this but was not given a chance.” That is inaccurate. If the condition existed as of the pretrial conference (held a week before trial), Mr. Weisbrot could have raised it then. He did not. If it existed at the start of trial, he could have raised it then, particularly when the Court inquired of counsel whether there were any “housekeeping matters” to address. He did not. Most importantly, he could have raised his medical condition at the start of yesterday’s trial session in response to the Court’s admonition to counsel the night before to be properly attired for Court. Or he could have raised it in response to the numerous instances during the course of yesterday’s trial session where the Court inquired of counsel whether there were “housekeeping matters” to address. Again, silence. Instead, as noted, Mr. Weisbrot chose to activate his camera (and thereby appear in the trial) at the end of the trial day, interrupting a witness’ examination so he could make “an application.” He was dressed in a sport coat and open collared shirt. I reminded him of my admonition and advised him he could not participate in the trial. I then directed that he go off camera. He refused. All the while he said nothing of a medical condition.
The lawyer was granted a medical exemption from the court’s rules pending the submission under seal of proof of his condition.
I can’t wait to learn what he comes up with.
Pointer and Facts: Above the Law