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Saturday, September 21, 2019

Legally Speaking: Lawyers Behaving Badly-Part Three

By John G. Browning | Apr 9, 2008

I had originally intended my "Lawyers Behaving Badly" series to be a two-parter. But these darn lawyers just keep on getting into trouble, and that trouble keeps on making news.

As with the attorneys discussed in the previous two columns, the ethical lapses of these lawyers only contribute to the public's poor perception of the profession.

So my remedial lesson in Legal Ethics 101 continues with Rule Number 12 – "Don't Make an Obscene Gesture in Court."

Adam Reposa, a solo criminal defense practitioner in Austin, was representing a client charged with driving while intoxicated this March in Travis County Court-at-Law No. 6. During a review of a plea bargain that was offered to Reposa's client, the prosecutor objected to what the State considered Reposa's interference with the court's inquiring into the plea.

According to a judgment signed by Judge Jan Breland, Reposa's response to the objection was to make "a simulated masturbatory gesture with his hand while making eye contact with the Court."

The prosecutor moved for Reposa to be held in contempt, and the judge agreed, finding the defense lawyer guilty of criminal contempt of court for what the court described as "intentional and contumacious conduct." Reposa was scheduled to have his own day in court in April before a different judge. Let's hope he remembers to keep his hands at his sides this time.

My next courtroom tale also involves what football referees might describe as an illegal use of the hands, or what hockey referees might just refer to as a typical Saturday night.

Rule Number 13 for pugnacious barristers out there is don't get into a fistfight at the courthouse. David Lawrence and Aaron Matusick of Portland, Oregon, recently took the adversarial process to a new level after leaving a court hearing in Multnomah County on a landlord-tenant case.

Although it remains unclear what actually prompted the scuffle, witnesses (including several sheriff's deputies) reported that one of the lawyers slapped the other, and the attorney retaliated with a punch to the head. After the fight was broken up, both lawyers were called into the chambers of Judge Pro Tem Lewis Lawrence for a stern talking-to.

Judge Lawrence decided the two were equally to blame, ordered them to apologize, and threatened to ban them from his courtroom if there were any future altercations. However, the judge stopped short of issuing criminal charges or reporting the two attorneys to the state bar, saying that "Isolated incidents are not a good gauge of who someone is."

There is no truth to the rumor that pay-per-view rights for a rematch, tentatively titled "The Brawl in the Courthouse Hall," are currently being negotiated.

One would think that Rule Number 14 – don't be a racist – would be especially easy for a judge, and an African-American judge at that, to follow. Evidently, Judge Marvin Arrington of Atlanta, Ga., missed that day of judicial training.

Judge Arrington looked out over his courtroom one day in late March, and observed that the defendants were "about 99.9 percent Afro-Americans." Tired of seeing black defendants there and wanting to impart a message about "What in the world are you doing with your lives?" according to the jurist, Judge Arrington decided to have a heart-to-heart chat with the accused parties without any white lawyers present.

Feeling his message would have more impact with a black-only audience, Judge Arrington ordered all white lawyers to leave the courtroom. Called on the carpet for this controversial move, Judge Arrington later admitted to CNN that "in retrospect, it was a mistake."

Surprisingly, this decision has not generated as much controversy or career repercussions for Judge Arrington as I would have thought, leading me to wonder if the media itself is guilty of a double standard.

After all, how many white judges who expelled all black lawyers from their courtrooms (even temporarily) would still be on the bench after such an episode?

Rule Number 15 is probably good advice for everybody, not just lawyers: Be careful about the practical jokes you play. Washington, D.C., lawyer J. Peter Segall is learning that lesson right now.

Segall took out a fake "in memoriam" ad in the Washington Post on April 1, 2008, as an April Fool's prank on his best friend, international business consultant and former U.S. ambassador to Mexico Edward M. Gabriel. Despite the day it was running, and the over-the-top nature of the ad (in part, the tribute quoted from the movie "Brokeback Mountain" in saying "Though I no longer have you as my partner, this day will always be OUR anniversary…I could never quit you"), the venerable Washington Post was fooled completely.

So were a number of readers, including one woman who spent hours crying over Gabriel's "death" before calling him.

Segall later apologized profusely for the hoax, stating "I engaged in a very stupid and ultimately cruel April Fool's joke against a man that has been my best friend for 30 years, and I deeply, deeply regret it."

In addition to paying for the $322.20 ad, Segall also paid for a retraction, contritely noting that he was "a mature man who made an immature mistake."

As for the very much alive Mr. Gabriel, he seems to be taking it all in stride. Gabriel says that Segall is "a good friend who went a little too far. He's apologized profusely, and I've accepted it, but not without being a little hurt. I think – I know – he had no ill intent."

Finally, we come to Rule Number 16, a rule that some lawyers really need to take to heart – be careful what you say in demand letters. If you've ever received a letter from an attorney demanding money, and felt like you'd been on the receiving end of legalized extortion, then take heart because the state of New Hampshire feels your pain.

In March 2008, a New Hampshire jury convicted 27-year-old lawyer Daniel Hynes of Manchester of theft by extortion for sending letters threatening to sue at least 19 hair salons in the state for pricing their haircuts differently for men and women.

Hynes, a 2006 graduate of Western New England School of Law in Springfield, Mass., who's been practicing in New Hampshire since November 2006, claimed in his letters that prices should be based on how long a haircut takes or on how long the hair is rather than gender.

In one letter sent in December 2006 (just weeks after he began practicing) he demanded payment of $1,000 from salon owner Claudia Lambert as the price for avoiding litigation. Lambert's husband, Ben Nardi, contacted the attorney general's office. When Hynes showed up to collect a $500 "settlement," the police arrested him.

The neophyte lawyer, who was represented by a public defender, twice unsuccessfully asked for the charges to be dismissed. After being convicted (the misdemeanor theft charge carries a maximum sentence of one year in jail), Hynes stated that he planned to appeal, maintaining that the conviction "goes against the First Amendment. People have a right to petition the courts."

Assistant Attorney General Elizabeth Baker stands by the outcome, describing Hynes' tactics as "an effort by an attorney to use his position as an attorney to demand money that he was not legally entitled to and to make threats of a bogus lawsuit."

Hynes also faces possible action by the professional conduct committee of the New Hampshire Supreme Court, which can review cases where a lawyer has been convicted of a crime to determine whether the lawyer's trustworthiness is in question and whether a lawyer has engaged in deceit or fraud. Richard Uchida, a former president of the New Hampshire Bar Association who has also served on the professional conduct committee, says that "In instances like this, there is, at the very least, a substantial suspension, if not a disbarment."

By virtue of their position in society, lawyers have power. Even if you're a lawyer who paid little attention in the required ethics course, anyone who's ever seen the blockbuster movie "Spider-Man" has heard that with great power comes great responsibility.

The work we do and the words we choose can literally mean the difference between life and death for someone in a capital murder case, or the economic survival of a company. A lawyer's work can achieve sweeping reforms of governmental agencies, and can result in safer products for people everywhere. With a flick of their pens, lawyers can protect the innovations of inventors and can preserve individual liberties.

Yet this very power makes it more critical than ever for the legal profession to police itself effectively and to reinforce the ethical lessons learned while in law school. Like any field, the legal profession has its share of bad apples. But a few rotten apples doesn't render the entire profession rotten to the core.

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