Ethics Dunces: The Sensitive Lawyers

From the Washington Post:

The last thing Fred Guttenberg told his 14-year-old daughter was that it was time for her to go, that she was going to be late. Hours after rushing his two children to school that Valentine’s Day morning in 2018, a shooter unleashed a barrage of gunfire inside a Parkland, Fla., high school — killing 17 people, including Jaime Guttenberg.

During Tuesday’s sentencing proceedings for the convicted shooter, Nikolas Cruz, Guttenberg’s voice broke while he talked of the imagined future he had for Jaime, one that never came to be. But his were not the only tears falling in court — members of Cruz’s defense team were also crying, videos show.

“I cannot recall if I actually ever did tell Jaime that day how much I loved her. I never knew that I would lose the chance to say it over and over and over again,” Guttenberg said as public defender Nawal Najet Bashiman dabbed her eyes with a tissue. Two others on Cruz’s team also shed tears during testimony Tuesday.

That is Assistant public defender Tamara Curtis wiping her eyes in the photo above.

I’m going to be blunt and merciless here. She’s in the wrong profession, and so are the other defense lawyers who couldn’t control their “feelz” when the parents of their client’s victims were pulling the court’s heartstrings. Their conduct is a betrayal, a stunning demonstration of incompetence and lack of professionalism, and they should not get off lightly: they should all be disciplined by the Florida Bar, and hard.

But I’m sure they won’t

If he’s punished with death, Cruz, now 23, would be one of the youngest people to receive that sentence in recent decades.

Cruz’s defense attorneys had offerd a guilty plea in exchange for a life sentence, but the offer was rejected. Now Cruz faces the real possibility of the death sentence. In his defense, his lawyers tried to paint a picture of a troubled young man who has shown signs of remorse after struggling with mental health issues and a difficult childhood, yadayadayada. They have to make that argument, but in a case like this, it’s probably not going to work. It is especially unlikely to work if Cruz’s lawyers are seen by the jury weeping as the consequences of their own client’s crimes are described. What kind of monster is so horrible that his lawyers break down in court just hearing about his deeds?

The inexcusable display prejudices Cruz. It could, and should, be grounds for appeal.

Wait: what if the lawyers deliberately wept crocodile tears so their client could force an appeal? If that could be proven, it would be such an egregious attempt to disrupt the proceedings (Rule 3.5) and conduct so prejudicial to the administration of justice that it would fully warrant disbarment.

27 thoughts on “Ethics Dunces: The Sensitive Lawyers

  1. I’m glad his lawyers are human. Their duty is to present their best case to the judge and jury, within the bounds of the law. Not to be unfeeling robots.

    • Where’s Jack? He must have fallen asleep, or maybe he’s had more dental work. I can’t help but expect him to be all over this comment. Although I may not feel as strongly about Jack’s impeccable reasoning, I sure can’t say “I’m glad the defense lawyers cried in court”. If they had been stone-faced, as they should have, would they then not be human in the eyes of Mr. oid? Must be one messy sock drawer.

      • It is a difficult balance.

        You can’t be insensitive to the fact that people died and others are suffering.

        But, you must be adamant that pain and suffering does not equate to a finding of guilt.

        It is not a matter of not being a robot. It is a matter of being an effective advocate.


        • What, that it shows an inability to maintain your professional detachment? If you can’t maintain that, then you are in the wrong profession. Some of these cases are hard to deal with, and murdered children are probably the hardest of all, but even a monster like Cruz is entitled to competent, dispassionate representation. An attorney who weeps openly at the other side’s case is neither of those things. There are times crying is appropriate, like weddings and funerals, but trial isn’t one of them.

    • Bah.

      Jack is right — defense lawyers weeping for the prosecution’s case is malpractice, and should be actionable and grounds for an appeal if not an outright mistrial.

      Look, you don’t have to be a robot to comply with this ideal — all you have to be is professional. It is manifestly inappropriate to prejudice and undermine the case you have sworn to defend with zeal and professionalism. This conduct does both, and it suggests to the jury that the lawyer(s) in question are only reluctantly defending Cruz and is a professional faux pas that only an ignoramus would be unaware of.

      These lawyer(s) should be ashamed — not of their emotions, which I am sure were honestly felt, but for their display in open court which undermined any defense they may intend to offer and harmed their client. I can’t believe the judge tolerated this in his courtroom.

      Cruz may be a monster — in fact, I believe he is the textbook definition of one. But this is America, and our legal system demands even monsters be competently and zealously defended. This is a violation of our foundational legal principles. It is revolting.

      Jack, A Man For All Seasons cries out for a voice in this one…

    • Call me callous, but I also agree with Jack. First, unless this is their VERY first case, I have a hard time believing they were that overwhelmed with emotion. They’re criminal justice attorneys, in going through law school alone they should’ve been exposed to some pretty traumatic stories. Heck, even watching the news or reading good, gripping fiction exposes one to plenty of traumatic stories. They should be used to this sort of thing. In addition to weeping in front of the jury being grounds for appeal, it indicates that the defense team may be emotionally compromised, giving the prosecutor an unfair advantage.

    • I’m glad my doctors are human and have feelings. I’m also glad they don’t faint at the sight of blood when performing life-saving operations.

      • This is a very important distinction.

        Doctors are lucky. When they lose, they are rarely to blame. Everyone dies. The best doctor can’t prevent that.

        Lawyering is different. You are always fighting other people. It can really undermine your confidence.

        I would not fault any doctor for being compassionate or empathetic. The doctor is not trying to convince death to forbear.

        Lawyers are often opposed to other lawyers, while trying to persuade others of the rectitude of their case. There will be a winner and there will be a loser.

        Doctors and lawyers are not analogous in this respect.


        • Difference between lawyers and doctors: If you’re a doctor, there’s not another lawyer in the operating room trying to kill the patient.

          I wonder whether the girls were crying crocodile tears in an effort to create the impression their client was remorseful. A bit of a stretch, perhaps, but if you’ve got a looney tune for a client and you’re trying to get a lesser sentence and the guy is incapable of showing remorse, maybe try the tears yourself? I think the act may arguably be helpful to their client. I’d sure make that argument in an ethics hearing.

          • Other Bill:

            “Difference between lawyers and doctors: If you’re a doctor, there’s not another lawyer in the operating room trying to kill the patient.”

            I have used that example myself.


            • Works for me, Jut. I was told it by a haggard adjunct downtown litigator (may have been a moot court judge) while in law school. He also advised me if I ever made a mistake, opposing counsel would “put their foot on your neck and never let up.”

          • I concur. I immediately suspected the crocodile tears were an act – not to force an appeal, but to aid their client by not appearing to be monsters defending a monster. I’d have to see the video to judge if it were excessive, but if they made the media attention about them with this act, that would be either incompetence or malpractice.

            • It is also quite possible the lawyers are a product of the touchy feely lawschools of late and literally know no better. Sigh.

        • I don’t see how it isn’t analogous. Certainly, the job they do is not the same, as you point out, but the point is–displaying emotions that are quite common in lay people can be totally inappropriate in a professional setting. If you can’t see blood without a severe negative reaction, you shouldn’t become a doctor. If you can’t listen to descriptions of horrible events without crying, you shouldn’t become a defense lawyer.

          What does the adversarial nature of law have to do with that point?

  2. Okay, I think I’m convinced.

    Let me ask a serious question:

    Bodily reactions to strong, sincere emotions aren’t always under one’s complete control.

    What should a defense attorney do, in such a situation, if they happen to feel sincere tears welling up in their ducts, despite sincere efforts to not do so? (I admit as a non-lawyer I don’t know much about courtroom etiquette, for one). Would it be possible to literally leave the room so the jury doesn’t see? Or would that be a different type of faux pas?

    • You can’t do either. You can’t weep openly and you can’t leave the room. Once the jury sees either, your client is doomed and you’ve doomed him. Maybe you should look for a different job.

    • I suspect that if you can’t listen to all kinds of horrors being related by victims in court and keep a straight face, you can’t be a criminal defense attorney. Just like people who faint at the sight of blood can’t become surgeons and people who can’t fail students who really tried but just couldn’t understand the material. It is a job requirement and if you can’t do it, you need to find another job. Nobody said life would be fair.

    • Good for you.

      As for your hypothetical: a professional has to be able to remain objective and detached, which means he or she must be prepared to handle and control all emotions. That’s why lawyers get the big bucks. There was an episode of “The Practice” in which a chld killer’s defense lawyer snapped when his client whispered to him, observing his victim’s grieving parents, “I wonder if they would feel better or worse knowing that she was already dead when I ‘did her.” The layer then attacked and beat the defendant in open court. (Uh, mistrial!). The prosecutor let him out of jail, saying that every lawyer sympathized with him and secretly was envious…but that maybe it was time to stop doing criminal defense work.

    • Existoid,

      It is a very tricky business.

      I can rant and rave all day toward judges and lawyers without an issue.

      However, I find it very difficult to address a jury sometimes.

      It is regardless if the issue. Civil or criminal. It does not matter. I suspect it is a certain respect for the jurors in their unique role.

      In all my experience, both judges and lawyers do not want to “waste” the time of the jury. As egotistical as lawyers and judges might be, they understand the important imposition jury duty is upon people.

      The jury is often my toughest audience to address, regardless of the issue.


  3. As I said, I’m not a lawyer, and I certainly doubt I could have ever become a defense attorney. But I also could likely never become a police officer, or any number of intense occupations. Although I don’t faint at the sight of blood, at least 😉

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