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There is no shortage of stories about lawyers and judges acting badly. But what about customers who misbehave? And what about the lawyers who defend these clients? For example, defense attorneys are routinely asked, “How can you defend these people?” If the questioners had taken a course in civics, history, or politics, or had even the slightest knowledge of the Constitution, they might not need to ask the question.
The same question is asked of lawyers representing governments, banks, insurance companies and other similar clients of a similar nature. The answer is still the same. Every client has the right to a vigorous defense; If in doubt, consult the rules of professional responsibility. That doesn’t mean, however, that a defender’s role, in whatever area, is easy. And there are times when being a defender sucks. (Readers nod in agreement.)
Schadenfreude is a word that essentially says, “Better you than me,” “Thank god it’s not my client,” and the like. That’s exactly what I think some lawyers experience, faced with various escapades by their clients who they then have to defend.
Let’s start with the village of Melrose Park. How would you like to represent a city where the mayor doesn’t have the anger management skills or temperament required to be a decent civil servant, and who also has other less stellar qualities? A federal district judge for the Northern District of Illinois called out this public “official” for conduct that was improper not only for him but also for the village he represents. Lots of harassment, swearing, threats and other misconduct.
Pretend you are the lawyer who has to defend the village and the mayor’s behavior and language. What would be your defense strategy? What defenses would be available to counter the family’s freedom of speech and other claims that have become the target of such harassment? Is this a case you want to try? If yes, do it. If not, a friend of mine used to sing “Disco Duck” as an assistant public defender. A late 1970’s disco song for those too young to remember.
And then there’s Alex Jones’ attorney. It’s no fun when your client plays the old switcheroo game, claims to be too ill to be dropped off, and yet broadcasts, not from his sickbed at home, but from his usual and accustomed broadcasting station. How do you make a representation in court when your client is acting in a manner that is diametrically opposed to that representation? Oops. And after the court reminded Jones’ attorney of his duties under the rules of professional responsibility, the attorney filed a statement with the court stating that he was unaware of his client’s conduct. How long do you think the defense firm will represent Jones without more balls being blown in the firm’s face? Non-lawyers do not usually understand that lawyers have a dual responsibility to the client and to the court.
So here’s another case that’s a lawyer’s worst nightmare. BMO Harris Bank has announced it will acquire Bank of the West from BNP Paribas. (Full disclosure, I was at the Bank of the West home until 2007.) BMO Harris is defending a lawsuit brought by the receiver who administers the estate of Thomas Petters, whose pyramid scheme collapsed a few years ago and was a client of a predecessor bank that acquired BMO Harris .
The bankruptcy court for the Petters estate has issued several judgments in the lawsuit against BMO Harris. Here are the things that keep lawyers up at night, especially bank lawyers. Do the terms “evidence stealing” and “sanctions” strike terror into the heart of a lawyer? What about the bankruptcy judge’s decision that the civil jury may be informed of the destruction of evidence? What about the court’s use of the verbs “lied” and “destroyed”? uh-oh
A big law firm might think twice about representing One American Network (OAN). Yes, representation is important, of course, but so is getting paid. Can I tell you how many times courts have exonerated defense attorneys because “Mr. Green” not arrived yet? Or that the client relationship was irrevocably broken? More examples of Schadenfreude?
And last but not least, in the sh-tshow section was the gossip that was heard around the world at the height of Tinseltown, aka the Oscars. Barely. I went through my checklist of available defenses for Will Smith’s behavior and was left blank for defenses against a battery of offenses.
A letter to the editor of the New York Times outlined the perfect way to deal with the situation: Will Smith could have walked up to Chris Rock and whispered about his wife’s condition. (I wonder if the letter’s author was an intermediary.) Who knows how Rock would have reacted, but I doubt Smith would have acted in what was a classic case of “set, fire, aim.” Remember the Neuralyzer Smith and Tommy Lee Jones used in the Men in Black movies? This handy little device erased the memory of a target. Smith could use one right now. Schadenfreude indeed.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers working as a lawyer in a kinder, gentler time. She has had a varied legal career, including stints as an assistant district attorney, a solo practice and several senior in-house appearances. She now mediates full-time, which gives her a chance to see dinosaurs, millennials, and those in between interact — it’s not always polite. You can reach them by email at [email protected].
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