Sunday, August 7, 2016

Feigning Sleep

A few years back, the Office of Judges of Compensation Claims purchased engraved wood blocks for each hearing room. They read "Professionalism Demands Courtesy." It is intended as a reminder of the demands or professionalism. Lawyers are governed by a variety of rules and regulations. Most professionals similarly have various standards. It is not easy keeping track of all the obligations and expectations. To keep the issue prominent, The Florida Bar requires lawyers to participate in continuing education that specifically focuses on ethics and professionalism. Some would see those two as similar or perhaps even the same. But professionalism is a step above. An attorney can behave ethically and still be unprofessional. 

Professionalism has been in the news in Florida in recent months. We have adopted Professionalism Standards. Professionalism Panels have been created and empowered. We are struggling with attorneys who do not act professionally, and our leaders have recognized it as a problem worthy of addressing. The Supreme Court has recently issued some decisions highlighting professionalism. The Court has referred attorneys to education focused on professionalism. See The Florida Bar v. Sebago, SC15-2190 (June 23, 2016), The Florida Bar v. Waters, SC15-1070 (March 24, 2016); and The Florida Bar v. Chamberlain, SC 15-71 (August 28, 2015).  These are unpublished decisions and so are available only on the Court's website.

The efforts toward professionalism are described in detail in a published opinion The Florida Bar v. Norkin, 132 So.3d 77 (Fla. 2014). The Court concluded, among other points, that 

"the most serious problems facing Florida lawyers are the lack of professionalism and the lack of ethics."

"The Court and the Bar share the overarching objective of increasing the professionalism aspirations of all lawyers"

“Surveys of both lawyers and judges continue to consistently reflect that professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today.”

“the 2001 Membership Opinion Survey . . . found that one-third of responding Bar members reported a lack of ethics or professionalism as one of the 'most serious problems facing the legal profession today.'”

In February, the American Bar Association published a professionalism story that is interesting, educational and most disappointing. On an ABA blog called Lowering the Bar, it is reported that "wrongful, … sophomoric, (and) unprofessional" behavior was displayed by an Assistant Attorney General during a trial. It made me recall a case I tried decades ago, before a jurist whose reputation for an orderly hearing room was not the best. In my trial, opposing counsel leaned back in his chair, hands behind his head, elbows outstretched, and closed his eyes for several minutes. His message seemed clear, the trial (or at least this portion) was boring and irrelevant. 

In the ABA story, a man was convicted following the death of his neighbor. While it is unclear whether murder, manslaughter or otherwise, this was a serious case. 

The defendant complained about the prosecutor's behavior. In Maine, the Attorney General's office apparently does the prosecuting. Thus, the highest legal office of the state sent this representative to court to act on behalf of the people. The Maine Supreme Court opinion on the matter is worth reading. Oddly, the court's opinion does not identify the Assistant Attorney General by name. 

One point raised by the defendant was the Assistant Attorney General's sarcasm. He told the jury that in his 25 years' experience, "strangely enough, when it comes to trial, I’ve always been wrong…. We never get the right person." 

The defendant also complained that "the prosecutor (Assistant Attorney General) engaged in gestures and communications that constituted improper contact with the jury.” In one instance, the prosecutor was "feigning" sleep during the proceedings. The defendant alleges that this "was intended to convey an implied message to the jury, something like: 'I consider the defense argument/counsel so unworthy of belief that I am over here sleeping or pretending to sleep through it, and you should feel free to do so as well, after which you should return a verdict of guilty.'”

In another, the Assistant Attorney General allegedly "improperly responded to rhetorical questions defense counsel made, again behind his back." When defense counsel rhetorically asked "who would have had this inside information about the victim’s activities," the prosecutor allegedly "pointed at (defendant) Robinson and mouthed the words, ‘He did.'”

The jury convicted the defendant and he was sentenced to a significant prison term. The defendant moved for a new trial "based partly on those (sarcastic) comments and partly on the claim that feigning sleep "constituted improper contact with the jury.” 

The Assistant Attorney General denied that he mouthed "he did." His sarcastic opening statement was a matter of record. The "feigning sleep" allegation he essentially admitted, and he claimed that he did so “because it can annoy defense counsel,” and "not to send a message to the jury."

The Maine Supreme Court concluded that "the evidence against (defendant) was so strong the conviction outcome would have been the same in any event. Because of the compelling nature of the evidence, denial of a new trial was appropriate in its opinion. The issue before the Court was limited to the new trial question. 

But, that is a different question than professionalism. Having concluded that a new trial was not justified, what about professionalism? Well, the "court noted 'it is well established that a prosecutor may use wit, satire, invective and imaginative illustration in arguing the State’s case.'” 

The ABA Blog author suggests that the Assistant Attorney General is now "former" because he has become a judge. The described behavior is not exemplary of professionalism and his elevation to the bench may therefore perhaps be curious. The unidentified ABA blog author adds that "courtroom humor can be problematic for judges, too, but it’s a lot easier for them to get away with it." 

This statement is troublesome, as it reveals a misconception attorneys may have of the bench. Judges need to be even more wary of professionalism issues than lawyers. Judges need to be conscious of impropriety and even the "appearance of impropriety." That difficult and onerous standard is imposed by the Code of Judicial Conduct. Such behavior by a judge would clearly be entirely inappropriate. And any attorney engaging in such conduct should certainly expect it to be discussed should the bench be sought one day. 

The unidentified author of this blog concludes "just to be clear, the court was not saying it is okay to do this." In fact, the court "found the lawyer’s conduct—assuming it occurred—to be 'wrongful, … sophomoric, unprofessional, and a poor reflection on the prosecutor’s office.'” I cannot disagree with the court's conclusions. I understand that the court's mandate was to decide whether a new trial was justified. But, I am disturbed that the court opinion does not conclude with "and so this court has referred Assistant Attorney General _____________ to the proper authorities for investigation of his professionalism." In fact, the court does not even name this "sophomoric, unprofessional" Assistant Attorney General.

By not doing so, the court is saying, in essence,  that it "is okay to do this." When attorneys and judges ignore unprofessional conduct, they condone unprofessional conduct. The behavior is not professional, and that remains true whether one is prosecuting, defending or adjudicating. The Maine Supreme Court should be ashamed of the manner in which they have ignored their responsibility to professionalism and condoned this behavior. And, I suspect that they and Maine itself shall reap as they have sown. 

The Attorney General in Maine is Janet Mills. As the state's top legal officer, I am curious what actions she has taken to see that this behavior is appropriately investigated? 

When poor behavior is ignored and tolerated, poor behavior will be repeated. With or without a formal complaint, judges and lawyers are obligated to confront it. If we elect not to do so, we must accept that such behavior will continue and most likely worsen. Indeed, it lowers the bar and the entire judicial process suffers. 

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