Legal Ethics

Is It Ethical To Take Selfies With Your Acquitted Client?

An attorney earns a tongue-lashing for snapping a selfie with his client. Was his punishment too severe or too lax?

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How would you celebrate? Bourbon, cigars, and steak certainly sounds like the right answer. But to a lot of hopelessly narcissistic — and I won’t say “Millennials” here because far older attorneys have gone this route — the answer is the “selfie” because apparently the ultimate expression of joy is forcing thousands of casual acquaintances to witness your every triumph, whether it’s buying your first Pumpkin Spice Latte of the season or getting an acquittal for a man serving a life sentence.

But can a selfie cross an ethical line for attorneys? Bruce Vielmetti of the Milwaukee Journal-Sentinel reports on a curious case study:

Perhaps understandably, Waukesha criminal defense attorney Anthony Cotton said he was excited to hear a Milwaukee jury declare his client not guilty of first degree intentional homicide after a re-trial on Sept. 18.

The acquittal meant Brandon Burnside would be released from prison, where he had been serving a life sentence until winning the right to a new trial on appeal last year.

In the emotion of the moment, soon after court had adjourned, but while there were still staff and others in Circuit Judge Thomas McAdams’ courtroom, Cotton pulled out his phone and took a selfie with his client.

Pics or it didn’t happen, as they say. Well, here you go:

This isn’t the first courtroom selfie we’ve seen, but until now lawyers have reserved their amateur photography for empty courtrooms. Even though the trial had officially concluded, the judge was more than a little concerned that Cotton snapped this glamour shot with others in the courtroom. Vielmetti continues:

[Circuit Judge Thomas] McAdams said he ordered Cotton back to court to look him in the eye and hear his side of the story.

“I was concerned if the victim’s family had seen (the taking of the photo), or if jurors had been included in the frame,” McAdams said.

The judge and Cotton said he apologized, took the Facebook post down, and promised it wouldn’t happen again.

I doubt anyone would argue that a courtroom deserves a little more decorum. Well, maybe not this judge, but almost everyone thinks a courtroom deserves a little more decorum. But after Judge McAdams let Cotton off with a warning, some whined that McAdams didn’t slap Cotton in irons. For his part, Judge McAdams felt no lasting harm came of the photo and that, as decidedly Boomer, he may be on the wrong end of a generational misunderstanding of the casual relationship 30-somethings and younger have with the selfie. And good for Judge McAdams who had the perspective to realize that his queasiness with Instagram wasn’t much different than his parents’ queasiness with saying, “sit on it” or whatever other dumb practice a 1979 high school graduate would consider second nature. It’s still unprofessional, but Judge McAdams could at least conjure up some empathy.

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It reminds me of the oft-told (and certainly apocryphal) story from the annals of the dearly departed Dewey & LeBoeuf. As the tale goes, sometime in the 60s, Thomas Dewey finds himself in the elevator with a young associate who came to work without a hat. Dewey asks “what does a man without a top hat do nowadays?” The young man replied, “he goes to the White House.” The point of ramming this tidbit of Biglaw history into this otherwise straightforward story of murder trials and technology is that sometimes — not always, but sometimes — the grossest breach of decorum for one generation is second nature for the next… and every generation after. I certainly hope courtroom selfies never catch on, but it seems like a lot of the outrage over this is coming from a generation of lawyers who heard that story and thought Dewey sounded like the out-of-touch weirdo.

Where was I? Oh, right, well the stern yet informal discipline of Judge McAdams wasn’t enough for the professional pearl clutchers of the Wisconsin legal community, who’ve started citing a Wisconsin Supreme Court rule as a possible alternative avenue for punishing Cotton:

“Conduct themselves in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process” and “Abstain from any conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive.”

Oh stop. It’s professionally boneheaded, but let’s not blow it out of proportion. What we’re dealing with here is, quite literally, an excessive celebration penalty. To wit, it deserves the legal equivalent of 15 yards not a suspension. Cotton got his lecture and apologized. The end.

But, let’s figure out how the practice feels. Let’s assume the victim’s family and the jurors have left the courtroom (which was a serious concern raised in this matter), is it still a contemptuous or ethical concern to snap a selfie with a client in the courtroom?

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Attorney flagged for Facebook selfie with client after winning murder acquittal [Milwaukee Journal-Sentinel]
After retrial, man acquitted of 2010 murder, released from prison [Milwaukee Journal-Sentinel]

Earlier: Caption Contest: The Courtroom Selfie, Caught On Camera
Judge Beats Up Public Defender

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