Eric Brittain: A Lawyer Too Zealous

After making the decision to take on the Milwaukee Police Department in the Ronald Carter case, where the police were caught dirty by destroying evidence — a car, no less — in a cop shooting, one would think they would throw a parade for Eric Brittain. Hell, they did for the district attorney, so why not a good guy?

Instead, Milwaukee turned on him. The cops. The judges. The system.  No criminal defense lawyer was going to embarrass the polka capital of Wisonsin and get away with it, and so they did everything possible to make Brittain’s life miserable.  Including Brittain being held in contempt four times.

Four?  Well, that’s something, right?  Under the Nancy Grace school of culpability, where there’s smoke, there’s fire, which certainly means that Brittain must deserve it or it wouldn’t have happened.  After all, it couldn’t be just because his calling out the Milwaukee cops and system for wrongdoing made the yokels angry. That would be improper.

Rather than spin wheels, Brittain decided to change the scenary, and headed for rainier pastures, seeking admission to the state bar of Washington.  Naturally, the four contempts came back to bite him, but he had no more fear addressing them than he did calling out dirty cops.

From the findings of the Washington State Character & Fitness Committee, there was a finding of contempt for not letting Judge DiMotto run roughshod over him during trial by requesting recusal. If that’s not outrageous enough, the third was for calling his client by his first name when the judge ordered him not to, which the judge called “disrespecting him in ways [Judge Dallet] had never seen.”

But if Brittain’s contumacious conduct hadn’t been bad enough yet, then his final contempt finding sealed the deal. He accused a prosecutor of withholding Brady, which Judge Martens found “argumentative” and a personal attack on the prosecutor.

Then there was the time Brittain was fired by the Public Defenders office for overstepping his advocacy by challenging the shackling of juveniles, which apparently was cool with everybody else. And then there was the TSA affair:

In August 2011, Mr. Brittain was cited for failure to adhere to airport security directions in accordance with municipal code. In his bar application, Mr. Brittain explained that he declined a scan and requested a pat down from airport security. He felt the pat down and search violated his Fourth amendment rights, and implied that his complaints that the procedure was unnecessarily intrusive led to the citation. The citing authority stated Mr. Brittain failed to comply with TSA screening, refused to listen to screening procedures, and refused to present his identification Mr. Brittain paid a $220.50 fine for this citation.

While it may well be that Brittain’s handling of any or all of these problems could have been done more smoothly, more gently perhaps, so as to avoid the outcome while achieving the goal of zealously defending his clients and his sense of propriety, but the underlying harm here was that Eric Brittain was prepared to take whatever punch the system would give for his clients.

Apparently, the Washington State Board of Character and Fitness saw through the façade of Wisconsin’s retaliation for Brittain being a bit too zealous, and concluded that he should be admitted:

Mr. Brittain has provided a valuable service to his clients and the Milwaukee community as a whole. He is present today because of his self-described insecurity and likely a little arrogance. The Board does not believe this rises to the level of a finding that he lacks good moral character. Mr. Brittain has established by clear and convincing evidence that he is of good moral character and has the requisite fitness to practice law.

Great news?  Not so fast.  Without any explanation whatsoever, the Washington State Supreme Court rejected the Board’s conclusion.

This matter came before the Court on its November 6, 2014, En Banc Conference. The Court considered the Findings of Fact Conclusions of Law and Recommendation that Eric Brittain be admitted to practice law in the State of Washington. The Court has determined by a majority that the following Order should be entered;

Now, therefore, it is hereby


That the Recommendation for Admission is denied.

Boom.  Was it the first name thing, because calling defendants by their first name is intolerable in Washington?  Maybe it was the TSA thing, because they don’t want the terrorists to win?  Or perhaps it was that Eric Brittain, unlike so many lawyers whose services grease the wheels of justice so they grind smoothly as they crush the soul of defendants being run through the system, was one of those lawyers who was ready to take a hit when it came to standing up for his clients?

Can’t have that in Milwaukee. Can’t have that in Washington State either apparently.  So be a good lawyer, smile politely as your shackled client gets led to a cell and bow obsequiously when the judge tells you to.  And then, maybe, the Supreme Court of Washington State will find you the sort of lawyer they want around those parts.

As for Eric Brittain, the lesson is clear. Do what you believe you are obligated to do, ethically and legally, even at your own personal risk, on behalf of your client and watch your future, your career, crushed by the word “denied” without the court being bothered to offer a reason.

There is a price to be paid for making the system miserable by calling it out when necessary.  This isn’t to suggest that Brittain’s manner might not have been better, but as the Washington State Character & Fitness Board noted, Brittain did so not because he wanted to be difficult, but because he wanted to provide his clients with their constitutional right to counsel in its most meaningful sense.

And for this, the Washington Supreme Court told him to get lost.

9 thoughts on “Eric Brittain: A Lawyer Too Zealous

  1. Piedmont

    I wish more defense attorneys would do this. It’s a sickening feeling when you watch as a defense attorney does a spectacularly terrible job in a rape or murder trial, but it’s more soul-crushing to be able to count the pretrial motions you see each year on one hand.

  2. A Wisconsin Lawyer

    I don’t agree with the Washington Bar’s decision. And when the OLR decision in Wisconsin came out against Eric, I was among the people on the Wisconsin Association of Criminal Defense Lawyers listserv defending him. I wouldn’t say I was particularly close to him, but the Milwaukee legal community is a tight-knit one, and I was in court often with him, and I always enjoyed watching him work. And, really, while I like the judges who criticized Eric, I’ve been in the exact situations he was in and been condemned equally for it, and it annoyed me too.

    Here’s the only nagging problem I have with this approach to criminal defense: does antagonizing the judiciary really result in better treatment for our clients? I’m not talking about not filing motions or objections or appeals. But anyone who practices in front of those judges — and several others in those areas — knows that getting into an argument on the record with them results in increases in bail or punitive sentencing for our clients. And we can (and should) file ethics complaints against these judges, but what good does that do our clients who sit in prison while we go mano-a-mano with them or wait for the appellate attorneys to file post-conviction motions on excessive sentences and appellate courts to remand the cases?

    I just don’t know that bickering and hostility accomplishes anything as well as tailoring your approach to the individual judges. It can’t just be arguing that gets the job done, because I’ve seen brilliant defense attorneys win case after case in these courts without letting the judges get under their skin like Eric did.

    1. SHG Post author

      You’re tactically correct. Zeal is not a substitute for sound tactics and smart lawyering, and Eric should be faulted if his handling was ineffective, particularly since it was done for the sake of his clients. If his desire was there, but his tactics poor, then this would have been a great opportunity for someone he respected to pull Eric aside and have a talk with him.

      That said, it fails to explain why contempt was a proper reaction, or why he was denied admission in Washington. He may have been rough in his handling, but there was nothing there that warranted any of this.

  3. Stephen Heath

    Nice coverage.

    I invite all readers of SJ to join me in using the word ‘contumacious’ (properly, mind you) in a sentence at least three times this month.

  4. John Barleycorn

    WTF? Anyway one could find out who the majority votes were upon the WA Star Chamber regarding this matter?

    Your corner of the guild ought to ship them a forty foot container of rotting Wally Wally onions and some hand mirrors or something.

    I roll through Olympia now and then and if I ever run into one of these votes I just might be inclined to drop my pants and show them my hairy exit hole and inquire as whether or not it is too hairy for them?

  5. JLS

    “Under the Nancy Grace school of culpability, where there’s smoke, there’s fire, which certainly means that Brittain must deserve it or it wouldn’t have happened.”

    literally lol’ed.

  6. JLS

    “Can’t have that in Milwaukee. Can’t have that in Washington State either apparently. So be a good lawyer, smile politely as your shackled client gets led to a cell and bow obsequiously when the judge tells you to. And then, maybe, the Supreme Court of Washington State will find you the sort of lawyer they want around those parts.”

    Clearly he wasn’t a “good German” which is what they want.

  7. Not Jim Ardis

    I want to move to where ever Brittain ends up practicing law, because he sounds like exactly the kind of lawyer I would want waging legalese war on my behalf.

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