There is no shortage of stories about lawyers and judges acting badly. But what about clients who act badly? And what about the lawyers who defend these clients? For example, criminal defense lawyers routinely are asked, “How can you defend these people?” Perhaps if the questioners had taken any civics course, history course, poli sci course, or had even the most smattering knowledge about the Constitution, they would not have to ask the question.
The same question is asked of lawyers who represent government, banking, insurance, and other similar clients of similar ilk. The answer is still the same. Every client has the right to a zealous defense; if any doubt, consult the Rules of Professional Responsibility. However, that does not mean that the role of a defense attorney, in whatever area, is easy. And there are instances in which being a defense lawyer sucks. (Readers nod in agreement.)
Schadenfreude is a word that says, in essence, “better you than me,” “thank goodness it’s not my client,” and the like. That’s exactly what I think some lawyers are experiencing, given various antics by their clients that they then must defend.
Let’s start with the Village of Melrose Park. How would you like to represent a town in which the mayor does not have any anger management skills or the temperament required to be a decent public servant and who also has other less-than-stellar qualities? A federal district judge for the Northern District of Illinois called out this public “servant” for conduct unbecoming not only to him but to the village he represents. Lots of harassment, cursing, threats, and other misconduct.
Pretend you are the attorney who must defend the village and the mayor’s conduct and language. What would be your defense strategy? What defenses would be available to counter the free speech and other statements raised by the family that found itself the target of such harassment. Is this a case that you would want to try? If you do, go for it. If not, as a deputy public defender friend of mine used to sing “Disco Duck.” A disco song from the late 1970s for all those of you too young to remember.
And then there is the attorney for Alex Jones. It’s not fun when your client plays the old switcheroo game, claiming to be too sick to be deposed, and yet broadcasting, not from his sickbed at home, but from his usual and customary broadcast station. How do you make a representation to the court when your client is acting in a manner diametrically opposed to that representation? Whoops. And after the court reminded Jones’s counsel about his obligations under the Rules of Professional Responsibility, the attorney filed a declaration with the court that he was unaware of his client’s conduct. How much longer do you think the defense firm will represent Jones without getting further egg on the firm’s face? Nonlawyers do not usually understand that lawyers have dual responsibilities to the client and to the court.
So, here’s another case that is a lawyer’s worst nightmare. BMO Harris Bank has announced plans to acquire Bank of the West from BNP Paribas. (Full disclosure, I was in-house at Bank of the West until 2007.) BMO Harris is defending a lawsuit from the bankruptcy trustee managing the estate of Thomas Petters, whose Ponzi scheme collapsed some years back and was a customer of a predecessor bank that BMO Harris acquired.
The bankruptcy court in charge of the Petters estate has handed down some rulings in the litigation against BMO Harris. Here are the kinds of things that keep lawyers up at night, especially bank lawyers. Do the terms “spoliation of evidence” and “sanctions” strike terror into a lawyer’s heart? What about the bankruptcy judge’s ruling that the civil jury can be told about the destruction of evidence? What about the court’s use of the verbs “lied” and “destroyed?” Uh-oh.
One Biglaw firm may be thinking twice about its representation of One American Network (OAN). Yes, representation is important of course, but so is getting paid. Can I tell you the number of times that courts relieved defense counsel because “Mr. Green ”had not arrived? Or that the attorney-client relationship was irretrievably broken? More examples of schadenfreude?
And last but not least in the sh-tshow department was the smack heard round the world at what was supposed to be Tinseltown’s finest hour, aka the Oscars. Hardly. I ran through my checklist of available defenses for Will Smith’s conduct and came up empty for defenses to a misdemeanor battery.
A letter to the editor in the New York Times outlined what could have been the perfect way to manage this situation: Will Smith could have walked up to Chris Rock and whispered about his wife’s condition. (I wonder if the author of the letter was a mediator.) Who knows how Rock would have responded, but I doubt that Smith would have acted as he did, which was a classic case of “ready, fire, aim.” Remember the neuralyzer that Smith and Tommy Lee Jones used in the “Men in Black” movies? That handy little gadget wiped out the memory of a target. Smith could use one now. Schadenfreude indeed.