Judges and prosecutors get used to defense attorneys freely telling them the substance of communications with their clients, regarding when they appeared in court, whether the attorney told them to appear in court, and their client’s criminal history, and may not know what to do when a lawyer says no. The problem is that the court is trying to balance the lawyer’s duty to preserve confidentiality with the lawyer’s duty of candor to the court.

The line between candor and confidences really isn’t all that fine, but as Bobby notes, it’s become muddled by lawyers themselves refusing to toe it.  Lawyers cannot deceive or mislead the court, but simultaneously cannot tell the court of the communications that took place between lawyer and client. 

In Webb’s case, he refused to respond to a question about whether his client was, or was not, in court on a particular date.  It’s not quite clear to me why this fact question, reflecting nothing about a communication between lawyer and client, implicated the privilege, but then there is almost always far more nuance involved than appears from the media reports.  Under the circumstances, I will assume that the dropped charges, and order of acquittal, happened for a good reason.

The real problem arises when the judge becomes infuriated with the lawyer who holds to his duty to his client, and informs the judge that he cannot answer his question.  If all the other lawyers tell, what makes this lawyer think he’s special?  Lawyers find themselves caught between disclosing privileged communications and angering the judge with their recalcitrance.  When they deem the nature of the privileged communication to be “not too big a deal,” they talk rather than fight.  That becomes the norm of ordinary injustice.

Over the past couple of weeks, a number of instances of “foot in mouth” disease have crossed my path.  While the disclosure of privileged communications carries separate ethical considerations, these instances involved lawyers angering judges for no good reason whatsoever.  Heck, if you’re going to piss them off, make it worthwhile.

One instance involved a lawyer doing a tap dance in open court for the benefit of his client, to show him what a brilliant lawyer he was and how hard he was working for the defendant’s benefit.  The court appearance was routine, with the attorney handing over a discovery demand letter to the prosecution.  Normally, one would state on the record that he has done so, but not this lawyer.  He made a five minute dissertation (only a slight exaggeration) about the nature of the letter, the statutory bases (included the numeric citations) of the discovery and bill of particulars statutes, and then the caselaw relevant to the prosecutor’s constitutional duties to disclose.  The content of his dissertation was as basic as it gets.

We all stood there silently.  He’s entitled to make his record.  When he was done, the judge asked the attorneys to approach the bench, where he looked the attorney in the eye and thanked him for taking five minutes out of his busy day to explain how discovery works, since he might not be fully aware of this basic procedure after his 25 years on the bench.

Dumb move?  It got worse.  The lawyer then asked the judge, whose arm was in a sling, if he hurt his arm, appearing sincerely concerned for the judge’s physical well-being.  The judge asked he was a PI lawyer too.  Ouch.  Did I mention that the lawyer’s client was no criminal court virgin, and was also familiar with basic discovery?  He wasn’t impressed either.

In fairness, the lawyer is a good lawyer, whose mouth got a few steps ahead of his brain.  Once he started down the pedantic path, he couldn’t figure out how to stop.  Next time he appears before this judge, I trust he will save his breath for something more substantive.  After all, you only get one chance to make a second impression.

In another instance, the lawyer found himself being told by the judge that his written submission was contemptuous.  He was shocked at this, not recognizing why his argument, contained within a footnote, would offend the judge.  The footnote related how the judge employed language from an unpublished decision, which was improper, but that he would not do so.  This, the lawyer explained, was offered as merely the fact.

That a judge may indulge in some impropriety isn’t exactly shocking when viewed from the defense table, but there are two things you shouldn’t do unless you plan to go to the mattresses.  First, don’t directly accuse the judge of facial impropriety unless you want to go to war.  Second, don’t rub his nose in it by pointing out that you won’t engage in similar impropriety, even though the judge did.

This lawyer truly didn’t believe that his statement was offensive, or would be taken as offensive.  He had no intention of going to war over it, and thought quite well of the judge.  But he failed to consider how it would be read by the guy on the big bench.  There’s a certain sensitivity on the part of people whose position demands that they not engage in unethical or improper behavior.  They’re funny that way.  The off-hand note by the lawyer, that just happens to implicate impropriety by the judge, is almost always going to evoke a bad reaction. 

A buddy of mine who used to serve in the Kings County District Attorney’s office loves to tell a story about a judge who asked him, following a snide comment on the record, whether he was being contemptuous.  He responded, “Not at this time, Your Honor.”  There are times when we must take a stand and refuse to comply with the demand of the judge, though every criminal defense lawyer should have a few handy expressions in his pocket designed to both maintain client privilege while deflecting the anger of the court. 

At the same time, we need to exercise sufficient discretion to know when the sound emanating from our mouths, just noise really, suggests that the person to whom it’s directed is so ignorant that he requires us to explain in excruciating detail the most obvious and basic aspects of his job. 

And finally, we need to know the difference.  If you’re going to anger the judge, make sure it’s for a good reason.