Wednesday, May 17, 2017

Be candid but not too candid.

Merriam-Webster provides four definitions of the word candor, They are: (1) whiteness, brilliance; (2) freedom from prejudice or malice; (3) kindliness; and (4) unreserved, honest, or sincere expression.  The first and third definitions are described as obsolete and archaic, respectively. In other words, no one means the first or third definitions when they use candor in a sentence. The third definition is not discussed in Garner's Modern American Usuage and if anyone ever meant kindliness when they used the word candor in communicating with me, I am unaware of it. The fourth definition is the one with which most people are familiar.

The example Merriam-Webster uses for the fourth definition is a quote from Aldous Huxley, "the candor with which he acknowledged a weakness in his own case." It is kind of amusing that the example mentions a weak case because a lawyer offering an opinion on their case can get into all kinds of trouble.

Rule 3.3 of the Rules of Professional Conduct of the the United States District Court for the Northern District of Illinois describes the obligation of candor towards the court as follows:
       (a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
      (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 
      (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. 
      (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The local rule is pretty much the same as the American Bar Association's model rule on candor towards the court.  Note that the rule concerns itself with facts that are untrue (no "false statement of fact or law," cannot "offer evidence that the lawyer knows to be false"). The rule does not say anything about a duty to give opinions, like that a lawyer has a weak case.  The second comment to Rule 3.3. is that the rule "sets for the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the judicial process."  The point of the obligation of candor to the court is to help maintain the Court's legitimacy."  A lawyer presenting false information to the court undermines the legitimacy of a court.  But what about a lawyer candidly expressing an opinion? Does that undermine a court's legitimacy? Put another way, is a lawyer obliged to provide their true opinions to a court?

It turns out that expressions of honest opinions by lawyers are not what the Northern District of Illinois had in mind when drafting the Rule 3.3. We know this because of the case Alison Hope Motta. Ms. Motta was recently disciplined for acting an an unprofessional and disrespectful manner.  What did Ms. Motta do? It seems Ms. Motta was representing a client in a criminal law matter in the Northern District. According to the order suspending her, Ms. Motta "visibly reacted to testimony (such as rolling her eyes) and made comments about the testimony, all in the presence of the jury."  

I assume that Ms. Motta was rolling her eyes at testimony that did not help her client's cause. I would have thought that expressing incredulity at unfavorable testimony was part of a lawyer's job. After all, a lawyer is entitled to impeach the credibility of a witness, and one might think that rolling one's eyes was a way of expressing disbelief (whether a jury would find such an expression convincing is a separate issue). Yet, the Northern District of Illinois says that it is "prejudicial to the administration of justice" for a lawyer to react the way Ms. Motta did.  Why?  Because an opposing lawyer rolling their eyes makes "witnesses thrown off balance" Again, I thought that was a feature of our adversarial system, not a bug. I guess cross examination does not throw witnesses off balance.

The other thing Ms. Motta did that got her in hot water was that she rolled her eyes and whispered the words "fucking bullshit" when one of her objections was overruled.  Apparently this whispered remark was picked up by a microphone in the courtroom so people heard it. The Northern District found this remark problematic because it posed "a risk that the jury will disregard the judge's instructions." I guess that could happen if the jury agreed with Ms. Motta about the objection being overruled. But wouldn't the jury come to that conclusion anyway? 

I once attended a summary judgment motion hearing where opposing counsel yelled out "this is bullshit" after the judge denied the motion from the bench. The judge was walking out of the courtroom and I do not know if she heard the exclamation. The judge's staff certainly did. If the judge heard it, she ignored the remark. I suggested to opposing counsel that we discuss things further in the hall outside the courtroom and away from the court microphones.  I digress; but I love that story.

Nothing in the order suspending Ms. Motta suggests that she was not being honest when she expressed incredulity at witness testimony. Also, nothing in the order suggests that Ms. Motta did not truly believe that it was fucking bullshit that the trial court's overruled her objection. Whatever else one might say about her behavior, Ms. Motta seems to have been "unreserved, honest and sincere." But that is not the definition of candor that the Northern District of Illinois is looking for.

As a result of her behavior, Ms. Motta is suspended from the Northern District of Illinois "General Bar" for 90 days and from the district's "Trial Bar" for a year. I will leave to Mr. Torvik to explain, should he chose to do so, what these separate suspensions mean.  I am all for manners and I can get behind discouraging someone from using profanity in a courtroom.  But it seems to me that an admonishment and maybe a fine would have gotten that point across without suspending someone for a year.

What do you think Mr. Torvik? You practice in the Northern District of Illinois. Is rolling one's eyes at witness testimony beyond the pale of contemporary mores there? What do you think is the likelihood that a judge will lose control of a courtroom and have a jury disregard instructions if a lawyer whispers what the lawyer things of an evidentiary ruling?

On the one hand I feel bad for Ms. Motta in that her suspension order is getting a fair amount of attention from the legal media (besides here, I mean. No one cares what we think.). But on the other hand, some say all press is good press and one could say she was suspended for being a zealous advocate. Some people are going to want to hire that kind of a lawyer. While I am sympathetic to the idea that one needs to do what a judge says to do, I am not a fan of punishing a lawyer because she had too much candor.

 (h/t to the ABA journal for writing about this story first.)


  1. It seems that rolling one's eyes & using profanity to express one's beliefs does not fall into the category of 'professional conduct,' candor or no candor.

  2. The profanity is not professional conduct. I agree with that. But again, suspending someone for a year because a whisper was overheard in a microphone? The punishment does not fit the crime.


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