In a brutally vague advisory opinion for the purpose of concealing pretty much everything meaningful about what happened, a judge raised a question that has both been asked and answered a million times before (thinking of the Prince of Darkness, former legal aid lawyer cum Justice “Hardass’ Harold Rothwax of “Guilty” fame), and yet is new again under a shifting progressive regime.

The judge soon learned that, in a recorded conversation between defense counsel and the defendant, the attorney had referred to the age, race, political affiliation, and gender of the court’s judges, and suggested that the court ‘should look a little bit more like the people that are in front of them.’ The attorney also suggested that the defendant would not receive a fair trial from the court’s judges, who are a different race and gender from the defendant. Finally, the attorney used a pejorative term, drawing on racial and gender stereotypes, to refer to the complainant.

It was a criminal case, and although the opinion provides no explanation, it seems likely that the recorded conversation was a telephone call from jail to the lawyer, which in itself is unlawful, which was then disclosed to the judge, likely ex parte, which is also unlawful, But such petty matters don’t even get a nod and a wink when there are heinous problems to face.

…the attorney had referred to the age, race, political affiliation, and gender of the court’s judges, and suggested that the court ‘should look a little bit more like the people that are in front of them.’

In the sphere of progressive lawyering, this has become a mantra, that judges should look like the people in front of them as opposed to be fair, knowledgeable and competent. After all, what defendant doesn’t feel better being sentenced to 25 to life by a judge of their own race?

Nonetheless, the ethical shift of Rule 8.4(g)(2), expanded the forbidden conduct of:

harassment, whether or not unlawful, on the basis of one or more of the following protected categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, status as a member of the military, or status as a military veteran.

The purpose, of course, was not to be used against the lawyer who would call into question a judge because, for example since the opinion offers no details about who the “victim” of this conduct was, he was an old, straight, white, Jewish, male sitting in judgment of, say, a young, black, transgender female Muslim. And yet, the presumptive use was turned on its head when the progressive grievance was relayed to the defendant.

Except there’s one further detail in the Rule 8.4 of Professional Conduct.

(4) This Rule does not limit the ability of a lawyer or law firm to, consistent
with these Rules:

c. provide advice, assistance, or advocacy to clients

What exactly is meant by “consistent with these Rules” remains a mystery, since this is an exception from the rules and exceptions, by definition, are the opposite of “consistent.”

Among the many aspects of jurisprudence is consideration of who the judge is and what that means for the choices available to a defendant. There are bad judges, whether because they’re not the sharpest minds on the bench or mean spirited or biased toward the prosecution. These things matter. They matter a lot.

Any lawyer who fails to take such aspects into account when advising a defendant has failed in his duty to zealously represent the client. And if, at least in the lawyer’s view, the judge’s failings are due to reasons relating to the “protected categories” set forth in the Rules, then providing a full exposition of the lawyer’s reasons for proffering his advice so that the defendant fully understands and appreciates what he faces matters.

This isn’t just a lawyer spewing views that offend the rules, but a lawyer fully advising a client of the things that must be taken into account in deciding what choices the client, and the lawyer, must make to maximize the chances of a successful outcome for the defendant.

But wouldn’t it be good enough for the lawyer to just inform the defendant that the judge is a nasty, prejudiced asshole who will bend over backwards to make sure the defendant gets maxed out? Perhaps. Referring to the judge’s race or gender identity, age or religion, isn’t necessarily part of the characterization of why the judge sucks. Then again, it may well be, and if this is what the lawyer believes to be the case, spelling it out for the defendant is part of what will persuade a defendant to follow the lawyer’s advice and understand the limits with which they’re working. The lawyer’s duty is to the client, not to the judge’s feelings.

And lest it go under-discussed, the failure of the opinion to address the hard, cold fact that a judge heard a recorded telephone call between lawyer and client, a communication that should be sacred such that the lawyer can say whatever the lawyer believes needs to be said, is a failure of a magnitude that should dwarf any concern that the lawyer said mean things about a judge. Yet another reason why the paradigm shift in Rule 8.4(g) was a terrible idea that was doomed to lead down the road to perdition.