Overkill for a Missed Hearing
Seems like this judge overreacted by sentencing an attorney to 60 days in jail for missing a court appearance (notwithstanding that he'd explained his absence) - as reported in this article, Judge Mulls Over Missed Court Date - In Jail (ABA E-report 2/24/06). It's not clear from the article what exactly made this judge so incensed - perhaps she ought to be sentenced to 60 days to reconsider the impact of her sentence.
Wouldn't You Love A Ruling Like This?
Wouldn't you love a ruling like this one where the judge determines that you've underbilled and bumps your fees up fourfold?
Would You Apologize to Save Your Career?
Here's a bit of sad piece from AP (4/8/05) on Lawyer Refuses to Apologize to Judge, Goes to Jail. Though details of the incident are sketchy, the article brought this question to my mind: would you apologize when you don't believe you were wrong to save your legal career?
According to the article, an Ohio lawyer will spend 36 more days in jail for contempt of court for refusing to apologize to a judge and accusing her of conspiring with the against his client. The article reports that the lawyer insisted on representing a man charged with robbery and kidnapping even though the judge had appointed another lawyer. The attorney challenged the judge's ruling and at some point was held in contempt. After spending three days in jail, the judge gave the lawyer an opportunity to apologize for what she called "unprofessional conduct." But the attorney opted to serve an additional 36 days, insisting that he had done nothing wrong and accusing the judge of collusion with the prosecutor to force his former client into a guilty plea.
There's quite a bit that the article leaves out. Significantly, I'd want to know whether the client had asked for another attorney or whether he had insisted that the original attorney continue to represent him. Had the client requested the termination, the judge's decision to appoint another lawyer, over the original attorney's objection would have been correct. On the other hand, the discharged attorney would have been right to insist on continuing to represent the client if that's the wish his client expressed.
While I don't condone accusing a judge of collusion, I also don't think that it warrants 36 days in jail for contempt. Seems to me that a reprimand from the bench or even a fine would have been a sufficient remedy.
And what about this apology business? In reading through various grievance decisions, I've noticed that remorse will buy lawyers a lighter sentence - and lawyers should be remorseful when they've done wrong. But what if a lawyer correctly believes he's taken the right approach - as did the lawyer in this case (and again, not enough facts to make a judgment call here). Should he insincerely apologize to save his livelihood (because you know there's probably a grievance case being drafted as I type this up)? Or stand firmly on principle?
In my younger days, I'd have supported the principled stand rather than a compromise apology. Now, I'm not so sure. After all, if you lose your license to practice law even as the result of an unjust decision, you likewise lose your ability to continue to work to change that system from within. That's not such a great outcome either. But readers, why don't you let me know what you think.
Lawyer Sanctioned for Disclosing What A Judge Should Have
Here's another outrageous story of judicial heavyhandedness. This story, Attorneys Sanctioned for Representing Client's Challenges of Judicial Ethics (Empire Journal 2/14/05). According to the article, the New York Appellate Division, First Department sanctioned two New York attorneys (to the tune of $2000 and $250 respectively) for "frivolous conduct" when they argued that a judge who had a financial stake in the defendant's company should have recused herself from the case. Apparently, the court even agreed that the judge was required to disclose any financial interest, however small, but upheld the outcome of the case nonetheless. See also this link at New York Lawyer.
So how is it frivolous to raise an argument that the court ultimately accepts? Only in the universe where judge's attempt to intimidate attorneys from exposing any negative conduct, I guess.
What's the Solution When Judges Double-Book Solos?
New York attorney Frederic Abramson of Law, Current Events and Culture asks here whether a judge's refusal to postpone a jury trial notwithstanding that the attorney handling the case was already engaged in a conflicting trial in another jurisdiction. Apparently, the judge refused a continuance even after Mr. Abramson, who was covering for his colleague produced an affidavit of engagement documenting that the attorney was in trial in another jurisdiction.
Abramson suggests that the judge's ruling evinces bias towards solos since a large firm could send another lawyer to cover the matter. I'm not so sure, however, that a large firm would risk sending in another attorney who might not be as prepared.
To me, the judge's ruling reflects more of a lack of consideration against attorneys and their clients, generally. Certainly, if a judge became engaged in a trial that ran longer than expected, the judge would not transfer the case or work longer hours to accomodate the displaced trial but would simply reschedule. Even more maddening, I've had several matters set for hearing or trial several months in advance that were later cancelled because of the judge's vacation. If I can set my schedule several months in advance, why can't the judge - and simply calendar cases around it?
I'm also not so sure what the solution is for solos who handle trial work. The attorney who Abramson described already seems to be doing his best in arranging for back-up as evidenced by having retained Abramson to make an appearance to seek a continuance. A solo can't be expected to have an understudy on hand to step into a case just as a large firm wouldn't be expected to offer up an understudy for a major matter.
Part of the problem, I think, could be solved through technology. If court calendars were widely available on line, like a giant, universal PDA schedule, attorneys could look for gaps or contact other counsel and perhaps arrange to trade dates. Yes, this would require more cooperation between members of the bar and the courts, but if it helps to speed trials along and minimize conflict, then it's something to be considered.