Ethics Forum: Questions and Answers on Professional Responsibility

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Many young district attorneys get so used to winning that they begin to believe in their trial ability. It’s only when they ultimately leave the district attorney’s side and go to the defense side that they suddenly realize that perhaps they weren’t the tremendous trial lawyer that they thought they were because now all the rulings are against them.

Ethics Forum: Questions and Answers on Professional Responsibility

As a relatively new judge, at times litigants—particularly some young assistant district attorneys—are very aggressive in asking me to state my reasons for rulings or verdicts, particularly if it’s not guilty in nonjury trials. Am I obligated to do so? 

Every lawyer who practices criminal law is well aware of the above complaint. Before district judges and even Common Pleas judges, there are some young district attorneys who can’t take no for an answer and become very aggressive and, at times, angry and overly argumentative with a judge about a decision. Though the Code of Judicial Conduct requires a judge to be fair and patient with all litigants, there is no requirement for a judge to state their reasons unless an opinion is due on the issue. Obviously, if a judge finds someone not guilty then there is no appeal. Rule 3.5 of the Rules of Professional Conduct require a lawyer to comply with the decorum of the courtroom. Badgering a judge or arguing with a judge after a decision is made is in very bad form and extremely unprofessional. It’s usually the mark of a lawyer who is not experienced.

One of the hallmarks of practicing in a courtroom is respect for judicial officers. That’s why a judge is normally called your honor in the courtroom. That’s why first names are not used. The judge should not be calling lawyers by their first name either. By calling lawyers by their first name, that could perhaps suggest to spectators or to one of the litigants that the lawyer might have an inside tract.

When a judge enters a courtroom, everyone should stand. When a judge leaves a courtroom, everyone should stand. These practices many times seem to be forgotten or many judges aren’t even aware of them. But these preserve the dignity of a court.

When a judge speaks, a lawyer should not talk over the judge. That is particularly true in appellate litigation. Instead of welcoming questions and trying to learn what the judge is thinking, many lawyers try to either shout or override what the judge is saying. It’s bad advocacy and done by someone who is not experienced. Any true advocate knows the more questions the judge asks, the better. Questions are welcome. Questions are not to be overridden by unprofessional conduct if a lawyer believes they can keep speaking. The standard rule is when the judge speaks, the lawyer stops speaking.

When the judge rules, unless there is something terribly wrong with the ruling which the judge didn’t understand, then the lawyer accepts that ruling and moves forward with his case. Once the judge rules, there should be no further argument or pushing the judge.

A judge does not have to give the basis of their decision, particularly, if it’s not guilty. As noted above, the only time there is a basis for a decision to be provided is if there is going to be an appeal and, of course, the appellate court will want the judge’s written reasons. In the case of Leber v. Stretton, 928 A.2d 262 (Pa.Superior, 2008), the Superior Court found that in that case two district judges could not be compelled to state the reasons why they found someone not guilty. The finding of the judges provides the independence needed by a judicial officer. A judicial officer always is entitled to make a decision and is entitled to, in fact, show mercy in their decisions. But, that doesn’t have to be explained in detail.

Many young district attorneys get so used to winning that they begin to believe in their trial ability. It’s only when they ultimately leave the district attorney’s side and go to the defense side that they suddenly realize that perhaps they weren’t the tremendous trial lawyer that they thought they were because now all the rulings are against them.

But, it’s inexcusable for an attorney to badger a judicial officer in the courtroom. On the other hand, many judges, particularly older ones, will attempt to mentor young attorneys that are appearing before them. That’s usually done after the case is over and where the judge might invite a young attorney back to teach them something. At least in days of old, that was a wonderful thing for judges to come in and critique an attorney after a trial so the attorney could then grow from it. Unfortunately, now if the judge attempts to do that, many attorneys are so defensive it is probably not worth the judicial effort.

Under the Code of Judicial Conduct, Rule 2.3, a judge decides a case without bias or prejudice. Under Rule 2.2, a judge is always impartial and applies the law fairly. Under Rule 2.5, the judge is to show competence, diligence and cooperation. Under Rule 2.6, the judge has to give everyone the right to be heard. Under Rule 2.8, a judge has to require decorum and proper demeanor in a courtroom. There is nothing in the rules that requires a judge to explain every decision.

In this modern era, particularly in urban courtrooms, there are too many cases listed. Sometimes it difficult to move the list fully and completely and to manage the lawyers. But, despite that, there is a need for decorum in the courtroom. For lawyers and judges, a courtroom is a sacred place where justice is done. The courtroom is the place where everyone is treated equally. The courtroom is a place where no one has an advantage other than what the facts and the law might be in reference to a case. The courtroom is one of the most wonderful places in a democratic society. It allows citizens to be treated fairly and equally regardless of their position, rank, or wealth.

But, to do that, there has to be decorum and lawyers have to understand that. Bad lawyering or unprofessional lawyering or rudeness to judges or to other lawyers is inexcusable. Similarly, rudeness from the bench is not acceptable either.

Part of the problem is that, at least from a district attorney’s office and sometimes from the public defender’s office, the same lawyers are assigned to the same courtroom for months or years on end. That’s not a good thing for the lawyer and it’s better to have opportunities in other courtrooms. But, it also creates the sense of familiarity where the wink or an eye or nod of the head seems to mean something. That’s not the way courts should be run.

In conclusion, to answer the question, the judge does not have to respond to demands by any litigant to reasons why. The litigants, at last the lawyer litigants, should not be making those.  Professionalism should be the rule of the day and really the rule of one’s career.

One should never speak with a juror without approval of the judge.

Oftentimes at the end of a trial, a judge will not let me speak to jurors. But, the judge always goes back and speaks to them by himself. There is no record of that. Are there any prohibitions in what is allowed to be said?

Contacting jurors after a verdict has been rendered is normally within the discretion of the trial judge. Some courts have rules that prohibits a lawyer from speaking with jurors unless the judge allows it.

Rule 3.5 of the Rules of Professional Conduct under Section (c) notes a lawyer shall not communicate with a juror or perspective juror after the discharge of the jury if the communication is prohibited by law or court order, the jurors make it known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

In other words, one doesn’t communicate with a juror without the court’s permission and then only if the juror wants to speak to them.

It’s very important for a lawyer not to disrupt the juror’s service. As every trial lawyer knows, when jurors come into a courtroom to be picked, they are often not happy and many times act in a solitary way. But, during the course of a trial that changes and normally at the end of a trial, jurors have reached a bond with each other and has risen to the occasion. Many jurors have thanked courts for the experience as a juror because it’s a direct involvement of citizens in a democratic society and such involvement enriches the juror.

One of the worse things is for a litigant to destroy that. I remember years ago after getting a not guilty verdict in a case, the district attorney went back to talk to the jury and then pulled out the criminal defendant’s prior record, which was several pages in length, and let it fall to the ground. Two jurors started to cry seeing that. That was a terrible thing for the district attorney to do because it undermined the jury’s experience. The jurors based their decision on the evidence presented. They didn’t base it on something they wouldn’t have even known about and which wasn’t relevant. In fact, many times if a lawyer is upset with the juror verdict, they have only themselves to blame. Either they took a case that was not strong or they didn’t know how to present it properly.

Judges also have obligations not to disrupt a juror’s experience. Under the Code of Judicial Conduct, under Rule 2.8, that rules deals with communications with jurors. Rule 2.8(c) states as follows: “A judge shall not commend or criticize the verdict of the jury other than in a court order or opinion in a proceeding.  This rule does not prohibit a judge from expressing appreciation to the jurors for their service to the judicial system and to the community.”

Comment 3 discusses when a judge meets with a jury after the case is concluded.

“A judge, unless if otherwise prohibited by law from doing so, may meet with jurors who choose to remain after trial, but should be careful not to discuss the merits of the case.”

A judge has to be very careful how they act. I have seen judges who have been extremely disappointed with a verdict and, as a result, have been very abrupt in discharging the jury. There is no excuse for that. A judge should never criticize a jury’s verdict or answer questions about what the judge might have done if jurors ask the judge that when they go back.

The problem is that jurors can be ruined for future jury service and the positive experience as serving as a juror may be undermined by bad conduct by a judge. That is just not acceptable.

The bottom line is that one should never speak with a juror without approval of the judge. But, when one does speak to a juror, it should not be critical. Things that the lawyer might want to talk about are constructive criticism by the jury on the lawyer’s performance and to answer any questions they might have to why a lawyer did or didn’t do something, within reason. Finally, these meetings with jurors, if allowed, are confidential. A lawyer should not be publicizing what jurors said or mention it in newspaper articles. The institution of the jury has been around a long time and anyone that tries jury trials has a great respect for this last of the democratic institutions that still seems to work. All lawyers and judges should continue to protect the institution.