Legal Ethics

Must Read Cases Of Boneheaded Lawyer Moves

What were they thinking?

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We lawyers may think we are the smartest people in the room. Sometimes, that may indeed be the case, but more often, we get tripped up just like anyone and everyone else. Does the term “hubris” come to mind?  

I first learned the term reading Homer [not Homer Simpson] in high school, back in dinosaur days where we had indoor plumbing and color TVs, but not much else. I don’t know where we get off thinking that we’re all that smart. When we get tripped up, the rest of us do enjoy a moment or two of schadenfreude, while wondering “what were they thinking?”

Some recent examples here and try to keep the schadenfreude to a minimum. You’ll note that it’s not just lawyers, but judicial officers, who also are stricken with hubris, often career-ending. Let’s start with the latter first. From the Golden State, aka California, come two recent cases of judges not thinking clearly, or even not thinking at all. 

In the case of Judge Gary Kreep (yes, that is indeed his last name), a Superior Court judge in San Diego County, the judicial officers on the Commission on Judicial Performance wanted to boot him off the bench for a variety of forms of misconduct, including, but not limited to, a lack of proper courtroom decorum, poor demeanor, and bias. However, the “civilians” on the Commission decided to give him another chance. The judge received a “severe censure,” which is one step short of being tossed off the court. The majority of the commission thought that the fact that most of the misconduct occurred either when he was running for judicial office or during his first year as a judge merited giving him another chance.

You can read the Commission on Judicial Performance’s decision and order here.  

If you have little or no interest in plowing through more than sixty pages, then we can cut to the chase. The Commission found that Judge Kreep had engaged in one act of willful misconduct, seventeen acts of prejudicial misconduct, and eleven acts of improper action in whole panoply of situations. If you want myriad examples of what not to say and do as a bench officer, this decision and order is a good, cringeworthy primer. Learn by not making these mistakes. 

Then there’s the case of the Superior Court judge in Napa County (known for its wine, not “whine”), Michael S. Williams, who took several business card holders from an event. Huh?  You’ve got to be kidding. Why? What on earth was he thinking? He wasn’t. The judge subsequently returned them, apologized, and is resigning from the bench, effective later this year. 

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When will people ever learn about the perils of Facebook? Back in the days when Facebook was still in diapers, I used to train clients about the perils of email. In those days, it was “are you willing to have this email on the front page of the newspaper?” Now, it’s “are you willing to have this post somewhere, anywhere on the Internet?” If not, then SFTU and don’t write it. 

A Georgia magistrate learned that the hard way recently. What was he thinking? 

I would like to think that we have bench officers who possess judgment and know how to use it. I could be wrong. Three examples of judicial careers either down the tubes, or perilously close to it, for lack of judgment. 

Don’t get me started on lawyers who go on the bench and then leave a few years later for various reasons, including, but not limited to, claims of not enough money to support families, chafing at the constraints of judicial bureaucracy, and the like. Gee, these lawyers knew what the salary was going to be before they were appointed, and probably before they even applied. They knew or should have known that the judiciary is its own bureaucracy and newbie judges have to pay their dues before getting plum assignments. Judgment? What judgment? I digress.

I’m all for creative lawyering, aren’t we all, but how about this attorney in upstate New York who called in a bomb threat to a daycare center in the federal courthouse to avoid attending a hearing on an opposing attorney’s motion for sanctions?  

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I’d rather handle the fallout from a sanctions order than face jail time, a stiff fine, and the other collateral damage flowing from such a stupid act. Need we say state bar disciplinary action?

How about this one? We are all savvy enough, or should be, to know not to blame a screw up on a legal assistant, a paralegal, or anyone else on the office staff.  Judges don’t like that. We, as the lawyers, bear the ultimate responsibility for what goes right and what goes wrong. Misdirection to a spam folder?  Really?  Is this the latest iteration of “the dog ate my homework?”

Just three more, and then I promise I’ll stop for now, although there’s so very much to choose from, truly an embarrassment (and never was there a more appropriate term) of riches.

The Biglaw associate newlywed returns from her honeymoon and is suspended because she padded her billings. 

Just another peril of the billable hour: sure, go ahead and take that honeymoon because you should have a life, but make sure you fulfill your billable hour requirement or else. Yet another reason why the billable hour needs to be rethought, again, still. Will someone please consider driving a stake through its heart?

How about a male lawyer setting up a fake Match.com account in the name of a real-life female attorney in the same town? 

Again, what was he thinking? Obviously, not. Why risk all for something as stupid as this? 

Last, but certainly not least, pro se parties can be much more imaginative than we are at thinking outside the box, especially the pizza box. 

What a great idea.  Instead of asking for the same old same for sanctions, be creative. If that’s not doable, then exercise some judgment; it would be a refreshing change.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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