66th Installment. Threat to advocacy from overdeterrence — The Mark Brennan case

First in Mark Brennan series
Judges who minimize law's adversarial element will use the state bar to punish successful attorneys. The judge and complainant in a Colorado case, similar to the Kay case in California, exposed the jurisprudence that underpins disciplining for zeal. This first Installment in the Mark Brennan series sets out the case background.

Attorney Mark Brennan seemingly won his client a $1.2 million age-discrimination award against his employer the City and County of Denver, but Judge Blackburn declared a mistrial based on Brennan's allegedly prejudicial misconduct, mostly speaking objections and the like. A $850,000 settlement ensued. The judge also complained against Brennan to the state bar. The case is similar to the Kay matter in California: 1) respondents had been successful in court; 2) respondents conflicted with a powerful embroiled judge, who caused the courts to treat the matter as political, instead of legal; 3) respondents had long, successful careers without prior discipline; 4) courts have denied respondents discovery and other evidentiary rights concerning bar deliberations; and 5) respondents received no final judgment against their conduct in the underlying case. (But the cases aren't identical. First, overt procedural irregularities are present in the Kay case because Kay was defaulted, Brennan wasn't. Second, the kinds of character attacks each faces is different, in that Kay has never been accused of violence; but the character attacks against Brennan, too, may be inaccurate.)

The Brennan prosecution admits that Brennan's specific acts don't constitute misconduct, but it argues that the totality of evidence proves it: even if the prosecutor can't articulate a definition, he knows misconduct when he sees it! Brennan's prosecution and Kay's portend that attorney-misconduct's vagueness will compound disbarment's ultimacy to overdeter, suppressing vigorous trial advocacy. Unsure of the line between aggressiveness and misconduct, advocates become obsequious, knowing a mistaken speech register risks their livelihoods. A hostile judge will crush a case, augmenting judicial power the hidden purpose of disbarring attorneys for trial misconduct when borderline misconduct non-normative only in amount is alleged. Attorneys gamble on distinctions and accept the reasonable risk of mistrial. Good trial attorneys readily adjust their behavior to new trial contingencies, but none will venture on the extraordinary risk of disbarment.

While the Brennan case lacks the Kay case's procedural infirmities, it contains an oddity. The judge declared a mistrial only after the jury rendered its verdict. The only new fact was how long the jury deliberated, three hours, for an eight-day trial. The judge implies the duration was excessively brief, but, while the law allows declaring a mistrial because the jury deliberated a disproportionately long time, Colorado's Supreme Court ridiculed declaring mistrial for brief deliberation. (Sepulveda v. People (Colo. 1961) 361 P.2d 625, 626.) Even if the judge can justify mistrial based on his mere change of mind, his close decision fails disbarment proceedings' clear-and-convincing-evidence test.

Next in Mark Brennan series: The jurisprudence of judicial vindictiveness

70th Installment. Mark E. Brennan, Part 3: Sentencing

Third in Mark Brennan series

For lawfully hijacking the respect the jury ordinarily reserves for the judge, the Colorado Supreme Court suspended Attorney Mark E. Brennan for a year and a day, announcing to trial attorneys in Colorado and beyond: exercise your professional judgment about how much deference your client's interests allow a biased judge, and you risk not only the reasonably contemplated mistrial and fine for contempt but your livelihood. The court is unembarrassed in signaling its solidarity with Judge Blackburn for the humiliation he suffered in his own courtroom; summarizing the case, the court admits it punishes Brennan for his supposed bad manners (his "impertinence"):

Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

The court flaunts its vindictive motives yet pretends to apply Colorado ethical standards against disrupting a tribunal and engaging in conduct prejudicial to the administration of justice. Judge Blackburn had admitted the record doesn't support his conclusions, and the same holds for the ethics court, allowing the verdict to avenge Brennan's "impertinence," instead of reflecting the evidence: "Simply recounting Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and the magnitude of his prejudicial behavior," Judge Blackburn had written.

Mark Brennan did what any trial attorney must try to do when confronting a trial judge biased against his client yet acting within his discretion: he replaced the judge at the pinnacle of the jury's respect. The maneuver's difficulty is attested by the contempt citation Brennan earned in its execution, but the possibility of this maneuver's success preconditions a real jury trial. Standing for prohibiting success in this subtle encouragement to a jury's moral mutiny, officer-of-the-court jurisprudence would guarantee the judge his respect by right, when the law only gives the judge every procedural advantage to maintain it.

Brennan tried to introduce his deposition of the jury foreman as evidence in the discipline case, but the court didn't allow it; Brennan's success was his real transgression. The tenor of the jury-foreman's exculpation:

You were absolutely polite. You tried your best. I know you did. You could tell. The other jurors could tell that you did. You didn't disrupt the trial in our hearing... ¶ But as far as the jury impression, no, it was a clash of styles. You were not impolite. You were an absolute gentleman. (Dillingham Deposition, January 2009, 54: 6 -- 14.)

Brennan had won over this jury, despite the court's bias. When the jury foreman heard of the original verdict's partial revocation, she perceived it as "an attack on me, and … an attack on the jury... [A]n attack on a jury that he portrayed as so ignorant and so naive that we could not see through the BS that was going on to get to the question ..." The pedestal where jurors put the judge, which courtroom procedure takes such pains to construct and repair, was leveled: "I would like to sue for libel. ... This is a judge that I told everybody I met I thought was the epitome of what a good judge should be.... It was Alice down the rabbit hole." (21: 7 -- 12.)

Courtroom justice involves delicate balances, and among the balanced factors is the right of an attorney to try to turn the jury's respect away from a biased judge. Officer-of-the-court jurisprudence, enforced by the state bars, is an aberration threatening to become the rule which emasculates the jury trial.

66A Installment. Officer-of-the-court jurisprudence

Second in the Mark Brennan Series

Judge Robert E. Blackburn's complaint in the Mark Brennan disbarment case permits a glance at the jurisprudence grounding judges who seek to impose state-bar discipline for ordinary trial conduct. Judge Blackburn approvingly quoted the Polansky court ("Complainant's Response to Respondent's Motion To Dismiss"):

Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide "zealous advocacy" for his client's cause, we encourage this only as a means for achieving the court's ultimate goal, which is finding the truth.

(Polansky v. CNA Ins. Co. (1st Cir. 1988) 852 F.2d 626, 632.)

The Polansky court and Judge Blackburn express three opinions that are contrary to professional consensus: 1) A lawyer's primary responsibility is not to his client but to the court; 2) zealous advocacy is encouraged only as a means of reaching the court's goals; and 3) the court's ultimate goal is truth.

Usually, first-year torts classes dispose of the cartoonish view that the court's ultimate goal is truth. Many public-policy considerations having nothing to do with truth's pursuit drive civil procedure, but although the Polansky court and Judge Blackburn are outside the professional consensus, the consensus makes a dangerous concession in accepting that the adversarial element serves truth finding: truth emerging from conflict. Our legal system as a whole obviously doesn't subordinate all interests to truth finding, yet many lawyers believe adversarial procedures exist to promote truth. This view leads the consensus toward endorsing Polansky's conclusion, while rejecting its reasoning — leads to limiting legitimate adversarial conduct to what furthers truth finding; but truth finding isn't adversarial procedure's distinguishing function or its overarching purpose. In overall accuracy an inquisitorial system is inherently superior to an adversarial one: does anyone think that testimony from hired gun experts better informs a jury than neutral investigators chosen by an unbiased judge? A trade off of lower accuracy for less rights-violating injustice, adversarial procedure favors rights protection over truth finding. Rights protection, not truth finding, justifies adversarial process.

Judges who believe fealty to the court's truth-finding ideals outweighs loyalty to client will consider extraordinary loyalty as misconduct. These judges' naive moralism doesn't promote precision; the judge espousing an open-ended duty owed the court is subjective. A court holding an officer-of-the court jurisprudence will be dissatisfied for the same reason a client is unhappy: the lawyer's limited zeal for itself.

In contrast to the moralism of Judge Blackburn and the Polansky court, the Koufakis trial court (unfortunately reversed) took a sophisticated, nonmoralistic perspective in deciding an attorney's conduct didn't warrant a new trial. Pointing out that "wrenching little pieces of argument out of a long record like this doesn't properly reflect the entire flavor of the trial, and in my opinion there was not the prejudice [which the defendants] suggest," the judge further explained to the attorney moving for an order declaring mistrial:

Your style is entirely different from Mr. Berg's, and, again, without criticizing Mr. Berg, obviously, I prefer your style which is the very careful understated reliable way of handling argument and presentation. ¶ Now, Mr. Berg has an entirely different style. It is going a little out of fashion now, but in any case of this kind where it runs as long as it did, the Jury becomes adjusted to that style. ¶ If you had mentioned the Mafia, then they would have taken you literally. ¶ Mr. Berg's mentioning the Mafia or using this kind of charge was looked on with a smile by the Jury. ¶ They simply didn't take this kind of analogy seriously. ¶ This is the kind of exaggeration that they had come to expect from a flamboyant individual.

(See Koufakis v. Carvel (2nd Cir. 1970) 425 F.2d 892, 901.)

The trial judge candidly admits he prefers the less flamboyant style — it's easier on the judge. When a less insightful or less honest judge replaces concrete legal reasoning with moralistic judgments, often they screen for the judge's prejudices.

Click for entire Mark Brennan series

Ten-Day Sale

I live in the high desert of California, where this time of year the temperature regularly climbs above 100 degrees. One seldom ventures outside in this weather, leaving abundant time for work. Seeking more work to occupy more time, I'm declaring a ten-day sale on legal-writing projects. This sale, ending after August 10, features a $50 per hour fee. For any state-bar or vexatious-litigation matters, the price is only $30 per hour.

Interlude 20. On the Morals of Ethicists

Fourth in Mark Brennan Series

At the Legal Profession Blog, legal ethicist Mike Frisch removed his post, rather than admit error or stand his ground. Frisch posted the usual state-bar character assassination, where the reporter recaps the worst allegations of the bar court, while omitting most of respondent’s contentions and denials and caricaturing the others. Two commenters replied. The anonymous first commenter posted insightfully on September 24:

I find this case troubling. As I read the opinion, I just get the feeling that there is much more to this case than is reported. It appears to me that the judge and the attorney were both engaged in a battle. In other words, it was not just the attorney that had lost control but also the judge.

I posted the second comment, noting the report’s lateness and referring readers to my blog posts at http://tinyurl.com/23aghf2 [scroll down]. Following these postings, Frisch modified his position without admitting his error or analyzing his biased attitudes and impressionistic methods. He wrote:

There has been a fair amount of commentary … on this matter, much of it favorable or at least sympathetic to the disciplined attorney. Carolyn Elefant has suggested that the sanctions here were unduly harsh or motivated by animus generated by the attorney's success in the underlying representation. Also, it is noteworthy that the case was decided last year but appeared in the September 2010 listed decisions of the Colorado disciplinary system.

While Frisch finally pays attention to the Colorado dates, it is also “noteworthy” that he doesn’t date his “Update.” When you change your position or correct an error in a commented blog post, the ethical consensus among bloggers dictates that you note the date of the comment, but Frisch’s lack of candor goes beyond this failing. Frisch posted the “Update” above the old September 24 date line, implying that he updated his entry on the same date as it was written, but the earliest he could have changed it was October 4, 2010 (from the dating of the web cache at http://tinyurl.com/35soxp4). Frisch concealed his falsehood’s duration. Like a shady state-bar respondent, he resorts to deceit short of outright lies, in the fatuous hope no one will notice.

I e-mailed Mark E. Brennan, the subject, about the defamatory posting. The Colorado web site Know Your Courts reported that when Brennan then tried to discuss the matter with Frisch, Frisch almost immediately offered to remove the posting. Know Your Courts reports that Frisch told Brennan, “It is just not that important to me.”

Obviously, it wasn’t: the post came down without further comment. It’s not the only instance of dishonest blogging or even the worst for the Legal Profession Blog. In the 4^th Installment, “The State Bar and It Academic Allies Undermine Legal Sophistication,” I describe how another blogger associated with that blog suppressed my critical comments on his remarkably authoritarian advocacy of imposing a full-disclosure requirement of all anonymous posting to the Internet while bar applicants attend law school. Not only was my comment suppressed, but Lipshaw suppressed the other commenter’s already published response, quoted in that 4^th Installment, together with Lipshaw’s self-damning reply, also quoted in that kanBARoo court installment. (In fairness, the other major academic state-bar-establishment Internet site, the Legal Ethics Forum, hasn’t resorted to dishonest blogging practices.)

Dedicated bloggers and all devotees of basic truthfulness revile this practice of removing and changing commented blog entries, practices where the dishonest blogger hides the truth and reneges on his implied agreement with commenters, who don’t reckon that if they win an argument or expose a deceit, the losing blog owner will destroy the evidence. For those unfamiliar with the norms, consider this controversy among theoretical-physicist bloggers, who scorn another physicist because (among other reasons) he blogs dishonestly:

At [Luboš Motl’s] blog, The Reference Frame, [Luboš Motl] often deletes comments. … In addition to that, Luboš Motl has the habit of editing posts after publishing which, taken together with deleting comments, makes others look stupid or out of place while supporting him. (Backreaction.)

In another physics blog, a commenter drives home the significance of Motl’s blogging practices:

If this claim about Motl is true, I think the ‘freakish little sociopath’ label is wholly justified.” (3 Quarks Daily.)

The point of the digression is to clarify, for those unfamiliar with blogging norms, the practices followed by bloggers dedicated to truth-based ideals. Not only must the state-bar establishment recruit ethical invalids, as only they will enthusiastically support the trashing of ethics in ethics’ name, but the state-bar enforcement culture and those academics closest to it (Frisch is Ethics Counsel at Georgetown University Law Center, rather than a professor) actively undermine genuine ethical commitment by its practitioners and their academic accomplices. These cowardly libelers are accustomed to hide behind the litigation privilege, which they remorselessly wield against the reputations of state-bar respondents. Hardly surprising that they may sometimes forget, when quoting the state-bar tribunals as if the findings are fact rather than allegation, that they are liable for damaging falsehoods. Without any moral constraints to oppose to expediency prosecuting a vilified respondent, they can lose track of prudential advice: they forget that the decision of a state-bar court doesn’t collaterally estop an action against a private defamer who parrots the false findings as fact.