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Great Lawyers Know the Judge: The Law, Ethics, and Effectiveness of Lawyers' Interactions with Judges

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Great Lawyers Know the Judge: The Law, Ethics, and Effectiveness of Lawyers' Interactions with Judges

A well-known legal aphorism states that while a good lawyer knows the law, a great lawyer knows the judge. Kidding aside, in order to be successful, a litigator must routinely have positive interactions with judges. This course will explore ways lawyers can improve their interactions with judges without running afoul of legal and ethical rules that limit the ways that lawyers and judges can interact with one another. Among the topics that will be discussed are MCLE classes and bar receptions, social media, courtroom advocacy and social hospitality.

Presenters

Steve Berenson
Administrative Law Judge
California Department of Social Services

Transcript

Steve Berenson - All right, good day, everyone. My name is Steven Berenson and I'm an Administrative Law Judge with the California Department of Social Services. Before assuming my current position, my practice consisted of legal ethics counseling, defending lawyers in legal malpractice and state bar discipline cases and representing judges in judicial conduct proceedings. So the subject matter of today's presentation is very familiar today. I'm calling this presentation "A Great Lawyer Knows The Judge: The Law, Ethics and Effectiveness of Lawyers Interactions with Judges". I got the title from this mug, which you may have seen a version of online or on someone's desk.

I got a version of this for a friend of mine, a number of years back when they got appointed to the City Court in White Plains, New York, our hometown. And whereas I meant it as a joke, and of course the mug is meant as a joke as well, like all good jokes, there's more than a little bit of truth in it. And so I want to offer some tips on how you, as a lawyer can get to know the judge and therefore become a great lawyer all the while staying within the compliance and boundaries of law and ethical principles.

And so just to reiterate, of course, here I am not going to be discussing anything illegal or any appropriate, untoward, not talking about bribes, extortion, or anything of that type. Obviously we all know there are rare instances of that type of conduct that occurs, but this presentation of course, is directed at the 99.999% of lawyers who want to be successful, wanna get on the right side of the judge, but obviously wanna do so within the confines of legal and ethical boundaries.

So I'm going to be dividing today's presentation up into a focus on lawyers interactions with judges, both outside the courtroom and inside the courtroom. In terms of lawyers interactions with judges outside the courtroom, going to focus in on MCLE programs, mandatory Continuing Legal Education, conferences and bar functions, ex parte contacts, contacts on social media, gifts and hospitality and judicial elections. In terms of lawyers interactions with judges inside the courtroom, I'm gonna focus on contempt of court, maintaining client confidences, and I'll close today with a few brief advocacy tips. I'll begin with a discussion of MCLE programs, conferences, and bar functions. As you all know, judges face many restrictions on what they can and can't do, both on and off the bench. One of the primary sources of these restrictions are codes of judicial ethics or judicial conduct that affect judges in all of the 50 states and at the federal level as well. I'm gonna be making reference to a number of provisions of judicial conduct regulation throughout the course of this presentation. And when I do so for the most part, I'm going to be focusing on the American Bar Association's Model Code of Judicial Conduct. And I think as most of you know, like most model codes, the ABA Model Code of Judicial Conduct or a CJC in and of itself has no binding effect on judges. However, all 50 states have adopted some version of the ABA model code as its own set of binding authority on judicial conduct. And just because I know we have participants from across the country as kind of a common denominator, I'll refer to the ABA model code.

Similarly, in terms of lawyers' ethics, I will also be making reference throughout this presentation to the ABA Model Rules of Professional Conduct. Of course, the Model Legal Ethics Code for Lawyers promulgated or offered up by the ABA. Again, the model code as most of you know, has no binding effect in and of itself, but all 50 states, my state of California being the last holdout, has now finally adopted a version of the ABA's model rules. And so again, I'll be referring to the model rules as sort of common denominator, but of course you all know that you need to consult the specific version of the ethics rules that are in effect in your jurisdiction before relying on a particular rule or provision that's referred to here.

Anyway, back to the CJC, Canon 1 requires that a judge uphold and promote the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety. So this provision naturally places significant limits on what lawyers can and can't do off the bench. Just as an aside, some of you may have perked up at the mention of even the appearance of impropriety in the Code of Judicial Conduct. Some of you older lawyers may remember that the predecessor to the ABA's Model Rules of Professional Conduct, the Code of Professional Responsibility had a similar provision for lawyers so the lawyers could be disciplined for even the appearance of impropriety, as opposed to actual impropriety itself. That provision was very controversial and ultimately didn't make its way into the successor model rules of professional conduct, but that higher standard, even the appearance of impropriety standard, still applies to judges given the central importance that judges play and the importance of their role in the judicial and legal scheme, that we are all a part of. So anyway, this very high standard places great limitations on what judges can and can't do on and off the bench. But of course, judges are people too, and they bristle at these types of limitations and like all of us, they crave social and professional interactions.

So what can judges do and still stay within the confines appropriate within the Code of Judicial Conduct? Well, CJC Rule 3.7 points out that a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations and not conducted for profit. And so a kind of familiar source of an appropriate way for judges to interact with lawyers and others in the profession outside of the courtroom is through Continuing Legal Education programs, conferences, and bar functions. Judges are allowed to attend and speak at MCLE programs, conferences, and other types of functions. They're permitted to attend receptions and hospitality that often accompany such events. And in fact, a judge and a guest may often be invited to attend such events free of charge, permissibly within the requirements of the code. And of course, I suspect I'm not saying anything that's unfamiliar to those of you out there. I'm sure you have attended Continuing Legal Education conferences given by judges and bar receptions attended by judges. But of course, this may be the primary situs of off-bench interactions between lawyers and judges.

So as a result, a couple of relatively common sense tips. If a judge is giving an MCLE class and as a lawyer, you ask a good question, the judge is likely to remember it, so you are encouraged to do so. And by the same token, if you ask a bad question, the judge is likely to remember it, right? So it's not the goal just to be remembered, right? You wanna be remembered for asking a good question, rather than a bad question. So obviously don't hesitate to raise your hand and participate, but be thoughtful in doing so, understanding both the upsides and the downsides of participation in the class. Similarly, a judge will remember you, if you have an interesting and professionally appropriate conversation with the judge during the reception that follows an MCLE class. And when I say professionally appropriate, I am primarily focused on improper ex parte contacts. And I'm gonna talk a little bit further about those in just a minute, but it's not appropriate to have a conversation with a judge at a bar reception about a case that you have pending the judges.

Similarly, while a positive, thoughtful, substantive conversation with the judge at a reception will leave a good impression, professionally inappropriate behavior at such events will leave a bad impression, right? And so this is a healthy reminder for all of us that bar social events are really not social events, they're professional events, and it's more work than play. And something important to keep in mind when taking advantage of the hospitality that's offered at these events, even if it's free, right? So keep a eye on your intake of adult beverages and the like, and remember these interactions with judges in particular, are making a lasting impression. Like all of us, judges talk amongst themselves, and they talk about lawyers and perhaps the restrictions that I mentioned earlier on judges interactions with non-judges, which by the way, don't apply to limit judges interactions with other judges, mean that judges are even more likely to talk amongst themselves about other lawyers than if they had broader outlets for such conversation.

So judges talk about the lawyers who appear before them, and that applies to both how lawyers perform inside the courtroom, but also how lawyers act at these receptions, MCLE classes and the like. So be forewarned that your interaction with one judge may have an impact on the way you are viewed by another judge. All right, let me turn to a brief discussion of ex parte contacts as I mentioned earlier, I would be returning to this subject. And as I mentioned earlier, it's improper for a lawyer to be having an out-of-court conversation about the merits of a particular case that's pending before a judge with that judge. I mean, there are strict restrictions on the type of ex parte or one-sided contacts a judge can have with a lawyer, a party or another person. And these are basically off limits with regard to all matters except possibly scheduling matters and the like.

Now there are certain situations, of course, where a substantive law allows for ex parte communications, I'm thinking primarily of domestic violence restraining order proceedings, whereas only one party will be there in court, sort of by design and a reminder just as an aside, as a lawyer, if you are legitimately and permissively appearing before a judge ex parte in court under the model rules of particular conduct, excuse me, professional conduct, thinking specifically about Rule 3.3d, a lawyer's advocacy responsibilities are different in ex parte proceedings than they are in proceedings more typically where both parties are going to appear. And the lawyer is required to disclose to the judge, even adverse facts in an ex parte context, whereas a lawyer would not be so required in a situation where both parties are represented before the court. And so by the way, just to point out in asymmetry here, we have a provision from the Code of Judicial Conduct that prohibits judges from having ex parte contacts with lawyers regarding particular cases. And we do not have a symmetrical disciplinary rule that applies to lawyers, that prohibits lawyers from having ex parte contacts with judges. And I just wanted to point out that just because there is no specific provision in the Lawyers Code of Ethics that expressly prohibits such ex parte contacts, that doesn't mean it's okay for the lawyer to initiate such contacts, right? As a lawyer, you do not want to be putting the judge in a position where the judge is at risk of violating the judge's ethical responsibilities and limitations. Remember, we're talking about getting on the judge's right side and staying on the judge's right side, both in terms of formal legal requirements and in terms of informal norms and practices. And therefore, even if this is not expressly unethical for a lawyer to bring up a pending case before a judge, it's improper for a lawyer to put the judge in a position where the judge is being asked to do something that would put the judge on the wrong side of the judge's ethical obligations.

All right, let me turn to the topic of social media, obviously a hot one in so many respects currently. And as I said before, judges are people just like lawyers. In fact, judges were formerly lawyers and we were formerly just regular people before we were lawyers or judges, and so not surprisingly judges are attracted to social media and participate in social media.

However, as in other areas, the particular role and responsibility of the judge, results in significant limitations on what judges can and can't do when they're participating in social media. Now, a number of states in the last few years have issued ethics opinions that opine on what is appropriate and what is inappropriate on the part of judges and lawyers interacting with judges on social media. Now, these authorities uniformly take the position that judges are not entirely prohibited from having social media accounts of any kind or participating in social media at all. However, states are very much divided in terms of what judges can and can't do, and particularly judges interactions on social media with lawyers who either have pending cases before the judge, or are likely at some point in the future to have cases that might come before the judge. Some states, excuse me, go so far as to prohibit such contacts all together. Some states offer something more of a reasonableness standard, whereas a contact between a judge and a lawyer when the lawyer has a pending matter before the judge might be prohibited, contacts might not be prohibited if there's no currently pending matter, even if there is some probability that the lawyer might appear before the judge in a future proceeding. And so what I would say in this area is first of all, obviously pay attention to specific law in your jurisdiction as to whether or not, or how restrictive it is in terms of judges interactions with lawyers on social media.

But it seems that it's a safe bet to say that if as a lawyer, you have a matter that's pending before a judge, no matter how big, prominent, noteworthy or not the case is, is that that is not the time to initiate a connection with a judge on social media, or to accept a connection if offered by the judge, right? Judges can make mistakes too, and that's not the time to form that connection, if at all, the time to form that connection is either well before you have a matter pending before a particular judge or well after a particular matter that's pending before the judge is concluded.

All right, let me turn now to the topic of gifts and hospitality, not surprisingly, there are significant restrictions on judges' ability to accept gifts and hospitality. Obviously gifts that are unduly large, certainly raise the specter of undue influence and make it us into that appearance of impropriety category. And so the Model Code of Judicial Conduct Rule 3.13 a states that a judge shall not accept any gifts, loans, bequests, benefits, or other things of value if acceptance is prohibited by law, or would appear to a reasonable person to undermine the judge's independence integrity, or impartiality.

So one key question to ask in this area is whether you were friends or relatives with the judge before they took the bench, because if you were in the habit of exchanging gifts with a friend for many years before they became a judge, whether that's birthdays, holidays or otherwise, or obviously, the judge is a relative of yours, then exchanging that ordinary type of hospitality is not prohibited. And at least in part, because based on that type of relationship, the judge would likely required to recuse themselves from sitting on a case where you as the lawyer with that degree of relationship to the judge would be appearing anyway. Now in situations where you didn't have a pre-existing relationship with the judge, no history of giving back and forth, there are still some permissible interactions under the heading of gifts and hospitality.

For example, ordinary social hospitality is not prohibited, so you can invite the judge over for dinner, you can go out to lunch with the judge. Again, while the case is pending before the judge is not the time to initiate such social hospitality, but before case is pending before particular judge or after, if you develop a particular admiration for a judge or a vice versa and you meet at a bar event or otherwise, and you would like to engage in some out-of-court hospitality, that's fine. Again, buying lavish meals for a judge is probably going to run you a foul of the proceeding prohibition against gifts. But again, serving a meal, buying a meal, buying a cup of coffee, not necessarily going to cause an issue, again, unless there's some sort of case pending before that judge at the time. Items with little intrinsic value, such as plaques, certificates, trophies, and greetings cards, gifts incident to a public testimonial.

Again, you know, that judge who does give the MCLE class is not prohibited from accepting a souvenir pen from the bar association that hosted the event or, five, $10 Starbucks gift card, not going to be an issue. All right, the last specific topic I wanna touch on in terms of lawyers, interactions with judges outside of the courtroom has to do with judicial campaigns. In the vast majority of states, at least some judicial officers are elected rather than appointed. And lawyers can support judges in their campaign activities in a variety of ways, but not surprisingly, as everything we've discussed previously would indicate there are significant restrictions.

 And in this area in particular, I would caution lawyers to pay attention to state law variations on the restrictions that are contained in the Model Code of Judicial Conduct because in this area in particular, states have taken the initiative in building their own regimes of regulations of judicial campaigning. The flip side of this in the Lawyers Code of Ethics area, I think is advertising restrictions, right? Many states have much more specific, detailed and extensive restrictions and rules relating to advertising than appear in the ABA's model rules and on the judicial conduct side it's judicial campaigns where a state law variations are the most prominent. All right, so first of all, a lawyer can donate money to the judicial campaign of a judge. Judges are permitted to set up campaign committees that can solicit and accept donations. As in campaigns for other elected offices, individual campaign limits have been deemed to be constitutionally permissible and are in effect in most areas.

So for example, in California, where I am, a judge is disqualified from sitting on a case where one of the lawyers to the proceeding has donated more than $1,500 to the judge. Now, again, that is not the same, of course, as an actual cap, it doesn't prevent lawyers from giving more than that to an individual judge, but it does result in judicial disqualification. Under the ethics rule that govern judicial campaign, judges are generally required to disclose who has donated money to their campaigns. And of course, that applies to individual lawyers as well. Again, here in California, just as an example, a judicial candidate must disclose identifying information regarding donors who have donated $100 or more in the aggregate to the judicial candidate's campaign. So it's common at least here in California, for judges who have recently or currently been engaged in a re-election campaign to issue a sort of admonishment when they take the bench before each session. And to let the people in the courtroom know that the judges has made available a list and there generally are copies of these lists available in the courtroom of donors to the judge's campaign and so that information is publicly available and must be made available. And as a lawyer, obviously that's something you wanna be aware of that your name may appear on one of those lists. Now putting aside financial support for a judicial campaign, of course, lawyers are permitted to engage in campaign activities on behalf of a judge and can attend campaign functions, put up a lawn sign or something like that. Of course, all of this would be protected political speech activity on the part of the lawyer. But again, active campaigning on behalf of a judge in this manner might require a judge under the recusal or disqualification rules to disqualify themselves from sitting on a case involving that lawyer, somewhere down the line. All right, now I'd like to shift our focus from lawyers and judges interactions outside the courtroom to lawyers and judges interactions inside the courtroom. And intuitively, interactions between lawyers and judges inside the courtroom often will have an even greater impact on judges impressions of lawyers that the judge takes with them into future matters than even those interactions that happen outside of the courtroom.

And here, I want to spend a few minutes talking about the concept of contempt of court, and we've got some confusing terminology and distinctions in this area, so I just wanna get some basic definitions and terminology. And again, specific terminology might vary from state to state, jurisdiction to jurisdiction. But again, I think these general terms that I'm gonna use here are fairly common and also pretty self-explanatory and intuitive. So, first of all, I wanna distinguish between direct and indirect contempt of court. Now direct contempt of court happens under the direct observance of the judge. By contact trust, indirect contempt of court happens outside of the direct observance of the judge. Now for the most part, direct contempt of court has to happen inside the courtroom because that's the only venue where a judge would encounter a contempt of court on behalf of a lawyer. Indirect contempt of court can happen either inside of the courtroom or outside of the courtroom, but if indirect contempt happens inside of the courtroom, it has to be at a time or an instance when the judge is not on the bench and proceedings are on the record, so to speak. So in terms of conduct outside of the courtroom, that could land a lawyer in contempt of court, one major area has to do with speech or extrajudicial comments as they're sometimes referred to outside the courtroom by lawyers.

And for example, a Model Rule of Professional Conduct, 8.2 makes it unethical for a lawyer to make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. So by the way, these types of comments, excuse me, could be made in conjunction with an ongoing judicial proceeding or not. And just to clarify, I don't wanna say that violating a rule of professional conduct is necessarily contempt of court or that contempt of court necessarily means that a lawyer has also violated a rule of legal ethics, right? So we're talking about two different potential sources of discipline or sanction against the lawyer, right? A judge could hold a lawyer in contempt of court for statements made by the lawyer outside of court. Now these same statements might also violate model Rule 8.2 and might result in the bar initiating disciplinary proceedings against the lawyer. But those are separate and distinct areas of law, right? So either or both, or neither of the above could happen as a result of extrajudicial statements made by the lawyer. By the way, contempt of court does not contain, it doesn't incorporate by reference thE specific terms of this rule of professional conduct or any rule of professional conduct.

In essence, as we will discuss with regard to contempt inside the courtroom, contempt of court does not really have a universal accepted definition that one could cite or quote, unlike the specifics of Model Rule of Professional Conduct 8.2, which applies a very specific standard to lawyers, statements about judges or other judicial officers that could result in discipline for the lawyer. By the way, just in terms of a Model Rule 8.2 and bar discipline for lawyers, that rule and similar rules have been interpreted by courts as only applying to material misstatements of fact, rather than statements of opinion by lawyers.

And so, for example, I've provided a citation to a case from a while ago, involving the very controversial civil rights lawyer, Steven Yagman from Los Angeles. Many of you may be familiar with Mr. Yagman from his rather colorful statements about, and therefore sort of rather public feuds for lack of a better word with various jurists. Mr. Yagman ended up independently getting convicted of tax fraud and doing some time for tax fraud. And, but I did read relatively recently that he has in fact been readmitted to the bar and has required his license, although I think a much more subdued version than version 1.0. But in the specific case, I've cited, Mr. Yagman made certain comments about the judge, that the judge was antisemitic and that the judge was dishonest and disciplinary charges were brought against Yagman as a result. And the court said, those statements are just statements of opinion, the rule itself only prohibits material misstatements of fact, or statements of fact made with reckless disregard as to the truth or falsity of the statement, and therefore those statements were not appropriately the subject of discipline. On the other hand, Yagman had referred to the judge as having been drunk on the bench. And the court said, well, now that's a statement of fact, the judge either was drunk or they weren't drunk. And so if it's false, it could be grounds for discipline, or if it was made with reckless disregard as to the truth or falsity, it could be grounds for discipline.

In this particular case, this is an opinion from the appellate court, the appellate court found that there was no actual evidence in the trial court as to whether the judge was drunk or not, and so there was basically insufficient evidence upon which to make a determination, whether or not Yagman had violated the prohibition on false statements of fact about a judge or statements of fact made with disregard to their truth or falsity. Other than statements about the judge, him or herself, right under the Model Rules of Professional Conduct, a lawyer who is participating or who has participated in the investigation or litigation of a matter, shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing, an ongoing adjudicative proceeding in the matter. And so basically this is addressing the Courthouse-Steps News Conference, actually, it's much broader than that. It relates to any press conference a lawyer might have before, during or after a trial or other legal proceeding, but substantial likelihood of material prejudice is the standard for bar discipline against the lawyer bar, by the bar against the lawyer. Again, different standard for contempt, but for that same Courthouse-Steps Press Conference, or out-of-court statement made by the lawyer may be the basis for a contempt of court finding by the judge as well. Of course, this is particularly likely if a trial is going on and the lawyer is speaking during the trial, and particularly if a judge were to find that a lawyer were somehow trying to use the press to get statements to the jury, that the lawyer would not be permitted to make inside the courtroom under the rules of evidence. Another of course, area where we see contempt of court against lawyers for extra-judicial statements is if a judge has entered some sort of gag order, or do not discuss this case for whatever reason. And assuming of course, that the judge has a legitimate basis for doing so, and sort of the contours of when gag orders are not permissible under the first amendment and other legal speech doctrines of course, is beyond the scope of this particular presentation. But of course lawyers should know that whatever they say about a pending judicial proceeding could leave the lawyer in hot water in terms of both contempt of court and in terms of discipline by the bar.

Alright, back to contempt that happens inside of the courtroom rather than outside of the courtroom. As I mentioned before, direct contempt is contempt that happens in the presence of the judge. And because direct contempt happens in the presence of the judge, it's observed by the judge, direct contempt can be punished summarily without the need for a separate proceeding. And as I said before, there's really no hard and fast rule for what constitutes direct contempt of court. There is a good deal of authority for the proposition that in order to be direct contempt of court, actions by a lawyer need to disrupt or frustrate the ongoing judicial proceeding. In other words, mere disrespect for the judge or other courtroom personnel, or for the judicial process as a whole, is not enough in the eyes of the law to result in a contempt finding. It's only if the judge's job of conducting a fair, impartial, legal proceeding is stymied or interfered with, that the lawyer should be subject to contempt.

Now, of course, in reality, and in practice, contempt is in the eye of the beholder and kind of what crosses the line from mere disrespect to frustration is a hard question to answer. It's a very vague line and judges are people too, as I said before, they can get caught up in the moment as well. And certainly conduct that goes right up to the line of contempt, but doesn't cross the line to contempt may cause the lawyer to be on the wrong side of the judge in a way that is of course the opposite of what we're trying to accomplish with this presentation. We're trying to figure out ways ethically and permissively to stay on the good side of the judge and even conduct that is not contemptuous may of course sully a lawyer's reputation with a judge, all of which is to say that this is sort of a very vague and a morphous standard and area of the law. And lawyers should keep that in mind. I mean, judges have a lot of leeway when it comes to determinations of contempt.

And the other thing is just because an appellate court might days, months, or years after the fact, decide that lawyer conduct didn't frustrate the purpose of the proceedings, such that contempt was properly issued. Again, that doesn't mean that if you get close to that line, a trial judge in the heat of the moment, might not misapply that rule, and obviously with negative consequences for the lawyer, even if the lawyer is ultimately vindicated on appeal, because there was no actual frustration of the purpose of the trial. In any event turning to indirect contempt because the conduct that led to the indirect contempt was not directly taking place in front of the judge, a separate proceeding has to be held and actual evidence has to be presented of what the lawyer said or did outside of the judge's view, that would form an appropriate basis for the court to issue a contempt finding, such proceedings much take place. And of course, due process protections of notice, opportunity to be heard, opportunity to present and cross examine witnesses on the lawyer side to challenge in any evidence of the indirect contempt, that opportunity must be provided to the lawyer in these situations. By the way, I think we all know that contempt can either be civil or criminal. A civil contempt is intended to coerce compliance with a court order or the courts standards being imposed.

For example, I think we're familiar with if a witness refuses to testify, they can be held in civil contempt. In those instances, it's said that the contempt nor holds the keys to the jailhouse door, so to speak, the contempt nor can remove the contempt, by complying with the court order. So similarly, just thinking of an example, if the judge holds the lawyer in contempt for dressing in appropriately in the court room, presumably if that were a civil contempt, the lawyer could remove the contempt by putting on a nicer outfit for the proceeding. By contrast, criminal contempt is intended to punish for past behavior and therefore criminal contempt involves a defined sanction in order to punish for the past action. Depending on whether the contempt, excuse me, the punishment for criminal contempt is less than, or greater than six months, substantive criminal law and due process come into effect and will affect the nature of the proceeding that a court needs to have before it can impose a criminal contempt sanction where the potential punishment is greater than six months.

So, as I mentioned before, behavior, well, short of contempt can annoy a judge and therefore provide a negative impact on a lawyer professionally. So obviously I'm trying to dissuade lawyers from routinely going up to the line of contempt, even if they don't cross it. But on the flip side, we also have to consider our ethical obligations as lawyers to provide zealous, diligent and effective advocacy on behalf of, on the part of our clients. And sometimes we really are required by our ethical obligations to our client to go right up to that line and maybe even cross what the judge perceives as, or what a particular judge perceives as the contempt line, but you as a lawyer feel is not the line that is required by your ethical obligations to your client. And so one example of this that I'll give is the protection of client confidential information. So as a lawyer, you may be in a situation where you are required to assert your duty of confidentiality or duty not to reveal confidential communications between you and your client and the judge may order you to do so. And in that instance, a lawyer may legitimately feel like they're ethically required to disobey that order and get held in contempt of court.

Now, the ethics rules do not require at least in all jurisdictions, the lawyer to take a contempt, so to speak, in order to satisfy their obligation, to protect client confidences. And in general, a court order to disclose confidences, may be deemed as a sort of legitimate defense to any ethical charge that a lawyer has breached their duty of confidentiality, but at least in some jurisdictions, at some point in time in the past, it was the law that the lawyer was ethically required to take the contempt, so to speak and then appeal the judge's contempt order to an appellate court. And it was only if the judge's determination of whether certain information was or was not protected by the attorney-client privilege. It would only be if the appellate court sustained the judge's disclosure ruling that the lawyer would be ethically permitted to disclose that information. In other words, the lawyer had to in those jurisdictions, take the contempt, so to speak, until they got a ruling from the appellate court.

All right, I wanna just end up by mentioning a few advocacy tips and sort of leaving the realm of legal requirements and ethical rules. So as we know, trial judges are very, very busy people, depending on the jurisdiction. They may have many thousands of cases assigned to them, so being succinct and economical in your communications with the judges in the courtroom, both oral, in your in-person presentations and written in your briefs and memos is something that is going to put you in extremely good stead with the judges, and by the flip side, undue repetition is gonna draw the ire of judges for whom time is extremely precious. One very wise, senior lawyer once told me that if you can't explain to a judge in one, two or three sentences, what you're asking the court to do and why the court should grant it to you, then you're gonna lose. So work on, I'm not saying all your briefs or all your motion arguments should only be one or three or two sentences, but you ought to be able to articulate what you want and why you should get it in that amount of time or space, and then of course, be able to follow up with your more detailed explanation as is necessary to make your case to the court.

On the flip side of that, and then maybe somewhat intention is just a reminder that judges were lawyers and law students at one point too. And particularly for busy trial judges, they rarely get an opportunity to sink their teeth into a challenging, complicated or novel issue of law. It's often routine repetition of the same fact patterns kind of over and over and the same factual disputes and factual issues that trial judges sort of earn their bread and butter deciding. So judges may leap at the chance to actually sink their teeth into a challenging issue of law. So by all means, if you have one of those, do everything that you can to give the judge everything that they need in terms of the relevant law, the relevant rules, statute, cases, analysis, so that the judge can feel like they have everything that they need in order to resolve that issue appropriately. You really don't wanna leave it to judges to be doing their independent, legal research. Many trial judges don't have law clerks or other support or the resources to engage in that sort of research. So they really do, they really do want to get into these issues and they wanna get them right. No one wants to get reversed on appeal, but it's incumbent on you as the lawyer to make sure that the judge has all the authority and tools necessary to reach the correct ruling on that novel or challenging question of law.

Finally, I was just say last and not least, be fair and balanced in your advocacy. And obviously we are advocates for our clients, we should be, we're ethically required to be. I just talked a little bit about situations where you may even be ethically compelled to take a contempt for your client, but undo partisanship, right? Stretching the law and the flat facts into places where they really won't go is not going to put you in good stead again, with busy trial judges. Showboating for your clients is not going to put you in good stead with busy trial judges. And obviously we want to have happy clients and we want our clients to come back to us in the future as well. But keep in mind, you are also likely to be in front of that judge again. And remember, at the outset, I said, you want that judge to be happy to see you when you show up in their courtroom, not not saying, oh, no, not this guy or gal again.

And so all of these tips and issues that we've discussed hopefully are gonna help you to be in that situation, whereas when you step into a particular judge's courtroom, they're glad to see, regardless of the case, regardless of the issue that's before them. And I hope that is the situation for all of you. So very best in the future, and thank you very much for your time and attention.

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