by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association
Abraham Lincoln once quipped: “What kills a skunk is the publicity it gives itself.” In a similar vein, the last words my Marine Corps drill instructor, SSgt. Derrick Pipkin, ever said to us before he walked out the door of the squad bay on the last day of boot camp were, “Don’t do anything stupid when you get to the fleet. And if you do something stupid, don’t record it or take pictures.” These were wise men. A recent case out of Orange County, California, illustrates what happens when lawyers ignore these rules. This can also be filed under this column’s ongoing documentation of the perils of social media in the legal profession.
Lawyer was retained to represent a gastroenterologist in a medical malpractice suit arising out of the death of a patient in the doctor’s care. The decedent’s family claimed that the doctor’s negligent insertion of a feeding tube resulted in damage to the decedent’s colon, which in turn resulted in sepsis and death. At trial, Lawyer argued that the mistakes of other hospital staff and the decedent’s history of excessive alcohol consumption were the cause of death, and that the medical examiner’s conclusion regarding cause of death was wrong. Lawyer obtained a defense verdict for his client after a mere 26 minutes of jury deliberation. Then things went south for Lawyer and client alike.
Lawyer decided to exercise his bragging rights in front of an audience back at the office and to have someone film the festivities. In addition to having one of his partners ring a “victory bell” in front of a room full of coworkers (the firm had a bell mounted on the wall), Lawyer provided the following succinct summary of what the case was about: “A guy that was probably negligently killed, but we kind of made it look like other people did it. And we actually had a death certificate that said he died in the very way the plaintiff said he died.” Then, for reasons that are not clear from the court’s record, someone at Lawyer’s firm decided it was a good idea to post the video to the firm’s Instagram page.
The firm removed the video from Instagram, but not before the video spread across the California legal community and plaintiff’s counsel preserved the video and included it in a motion for new trial. The motion provided a wide array of reasons a new trial should be granted (none of them particularly persuasive), but one that caught the court’s attention was the argument related to the video. Plaintiff’s counsel argued that Lawyer was not just celebrating a victory in a case where someone was dead, but rather the fact that he and his team were able to trick the jury into believing something that was not true. This argument was made as though the losing side in a trial thinking the jury was tricked into believing something that was not true is an unusual event.
Lawyer argued that his words on video were “imprecise,” the video was not material to the verdict and that it was a hyperbolic celebration made to recognize the work his colleagues put into the case rather than a commentary on the merits. Moreover, the video itself was not the kind of “newly discovered evidence” that would justify a new trial. In fact, Lawyer argued, statements by counsel are not evidence at all.
Citing Lawyer’s remarks on the video as “very important” to his decision, Judge James Crandall granted the motion for new trial. Judge Crandall felt that saying “a guy was probably negligently killed” and “we kind of made it look like other people did it,” was an admission of negligence. Moreover, it was not the bragging that was the problem, it was “bragging that justice wasn’t done, that’s what bothers the court.” Judge Crandall, after telling Lawyer he was a good lawyer with a good reputation, concluded with this gem: “But good men make mistakes. The pope goes to confession.” It’s a great line, but you will not find it in the rules of evidence or civil procedure.
This ruling presents a number of questions. Lawyer arguably violated some ethical rules, such as ER 1.6 (the duty of confidentiality prohibits discussing the facts of your client’s case on social media) and 8.4 (conduct prejudicial to the administration of justice), although neither the court nor plaintiff suggested any ethical rules were broken. However, ER 1.6 does not exist to ensure a lawyer’s opponent gets a fair trial, invoking the ethical rules in situations where a judicial proceeding is not affected or absent an injured client is problematic, and the rules of professional conduct are rarely (if ever) used as a substitute for the rules of civil procedure or evidence.
Moreover, whether ethical rules were violated would seem to be very separate questions from what the jury evidently felt was compelling evidence that the doctor did nothing wrong. Should the client suffer the consequences of his lawyer being braggadocious and self-aggrandizing, particularly when there is no suggestion that the client authorized or endorsed Lawyer’s statements? Are the post-trial statements of counsel really the kind of “new evidence” that courts should consider when deciding to grant a motion for new trial—unsworn statements by a non-party with no personal knowledge as to the facts of the case or expertise on the medical issues? Neither the judge nor the plaintiff cited precedent to support their position.
Perhaps recognizing the injustice to the defendant or the fact that he was skating on thin ice in terms of precedent and legal authority, Judge Crandall also threw in additional grounds for his ruling—the 26-minute deliberation time (the judge suggested the jury did not seem to review the evidence) and a mid-trial break of a couple weeks to accommodate the schedule of defense counsel (the judge thought this perhaps affected the jury’s recall of the evidence during deliberations). Defendant promptly fired Lawyer and filed an appeal, so this will not be the end of the matter. Until the California Court of Appeals weighs in, it’s probably best to keep your victory celebrations low key and off social media.
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About Joseph. A. Brophy
Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jkwlawyers.com.
The original article appeared in the October 2022 issue of Maricopa Lawyer and can be viewed here:
https://jkwlawyers.com/wp-content/uploads/2022/09/220928-ML.pdf.
