Larry Cohen, a lawyer from Vermont and adjunct faculty member at multiple law schools used movie clips to teach legal and judicial ethics. Trying to describe movie clips without being able to play them may be a fool's errand but I will do my best. I am sure that I didn't capture everything possible but at least this is some ethical food for thought.
In Anatomy of a Murder (1959), Jimmy Stewart is defending a serviceman accused of murder. The prosecutor effectively cross-examines Stewart's expert witness doctor, getting him to concede that the defendant may have known right from wrong. The prosecution then calls for a conference in chambers and asks Jimmy Stewart if he wants to change his client's plea from not guilty to guilty. The prosecutor is really obnoxious. However, Jimmy Stewart pulls out a law book and hands it to the judge. The opinion he wants is marked by an object which the judge recognizes as a frog gig. The judge and Jimmy Stewart talk about the joys of hunting frogs and Stewart offers to let the judge keep the frog gig. The chastened prosecutor realizes that he has been outfoxed by Stewart and says "We're hooked."
MPRC 3.5(a): A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
While we normally think of Jimmy Stewart as the good guy, here he is improperly trying to influence the judge.
In And Justice for All (1979), there is a funny scene where there is a recess in a case. The defendant, who is on trial for selling fake lottery tickets, walks over to the prosecution table and begins eating the tickets. Someone points this out to the prosecutor and pandemonium ensues. The judge walks in and fires a gun to restore order.
MPRC 3.4 A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
The way the scene plays out, the defense lawyer does not notice his client eating the lottery tickets. However, if he observed this and didn't say anything, he would violate Rule 3.4(a).
MPRC 8.3(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
Arguably the lawyers would have an obligation to report the gun-toting judge.
I can't find a specific rule that says that a judge should not fire a gun in open court to maintain order. However, I have to think there must be one.
In The Verdict (1982), a lawyer is examining a witness. The judge takes over and begins cross-examining the witness. The judge gets the expert to admit a point unfavorable to the plaintiff and cuts off the examination. The exasperated lawyer says something to the effect of if you're going to try my case for me, I wish you wouldn't lose it for me.
Fed.R.Evid. 611- Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
Model Code of Judicial Conduct Canon 1A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
The court is allowed to exercise "reasonable" control over examining witnesses. Taking over the examination does not seem to be reasonable. Certainly cutting off the examination and undercutting the lawyer's case violates the duty to maintain the integrity and impartiality of the judiciary.
MRPC 3.5 is titled Impartiality and Decorum of the Tribunal. However, there is nothing in the rule which prohibits counsel from impugning the court other than Rule 3.5(d) which prohibits a lawyer from engaging in conduct designed to disrupt a tribunal. I think this one probably falls within the court's inherent ability to preserve the dignity of the proceedings.
Snow Falling on Cedars (1999) involves a murder trial. The context is an island in the Pacific Northwest where Japanese Americans were interned during World War II. The prosecutor is aggressively cross-examining the Japanese American defendant and his examination goes over the line. The defense attorney makes a mild objection which the judge sustains. The Judge then lectures the prosecutor and tells him to ask a proper question. When the prosecutor hesitates, the Judge says "Shame on you" and tells him to sit down.
This would also invoke Judicial Canon 1 since the Court is making a personal attack on the prosecutor.
There are so many teachable moments in My Cousin Vinny (1992). In the scene we watched, the judge calls Vincent Gambini back into chambers and tells him that the New York Bar has no record of a Vincent Gambini ever having tried a case. Vinny says that Vincent Gambino is just his stage name and that his real name is the name of a prominent lawyer. When he recounts this to Mona Lisa Vito, she asks him if he is stupid, because the lawyer's name he gave died the week before.
MRPC 3.3(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;MPRC 3.5(b): A lawyer shall not:(b) communicate ex parte with (a judge) during the proceeding unless authorized to do so by law or court order;MPRC 5.5(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
The interesting point here is that although Vinny Gambino has an ex parte communication with the court, he was invited to do so by the judge. Thus, he was arguably authorized to do so. Obviously, making a false representation to the judge and practicing without permission in a jurisdiction are bad.
There is a scene from an episode of Law and Order where a defense lawyer attempts to do an impromptu demonstration that an Asian American witness cannot distinguish between European Americans. The judge calls the lawyers into chambers. The judge tells him he cannot do the demonstration and asks if he has an expert. The lawyer says that he does. The prosecution objects that the witness has not been disclosed. The defense lawyer says he just thought of it. The judge then tells him that he thinks he is lying and that if he can ever prove it, there will be consequences.
The impromptu demonstrate may violate Rule 3.5(d) about not engaging in conduct intended to disrupt a tribunal.
Under Rule 8.3 (a),
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." However, here it is the judge who believes the lawyer has engaged in conduct raising a substantial question about his honesty. Perhaps the prosecutor, having heard the judge's admonition might be under a duty to report his counterpart.
In Inherit the Wind (1960), the jury is just about to come back in. Someone comes up to the judge and says "Let this thing simmer down. Don't forget November's not too far off." Also, there is a radio reporter broadcasting live from in front of the bench.
MRPC 3.5: A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
Assuming that the person who approaches the judge is a lawyer, he has violated Rule 3.5(a). If he is a lawyer in the proceeding, he has violated Rule 3.5(b) as well.
Model Code of Judicial Conduct Canon 3:
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
In this case, the Judge has complied with Canon 3 by not letting the appeal to his re-election affect his ruling.
I think there must be something wrong with letting the radio broadcaster do so from right in front of the bench but I can't find the rule.
If anyone has additional suggestions for ethical violations in these scenarios, please send them to me and I will be happy to give you credit.
No comments:
Post a Comment