Tuesday, November 21, 2006

Bathroom Break Issue Leads to Contempt

by Mike Frisch

A recent Kansas discipline case reinforces the principle that the First Amendment does not afford protection to statements by counsel in ongoing litigation.  In re Eckelman involved an attorney representing a criminal defendant. During a recess, defense counsel was told by her client's wife that jurors and the victim were together in the rest room and may have spoken with each other. The attorney then comfirmed that jurors and the victim were both there but did not overhear any conversation. The attorney then went into the judge's chambers and demanded a mistrial. The demand was deemed premature as the judge wanted to interview the jurors.

The attorney became angry and profane and was held in contempt. Back in court, she told the judge that she was "furious," could not "control it" and that the judge was "the cause of it." The attorney also accused the judge of speaking with jurors without a factual basis. The court found that the lawyer violated ethics rules by speaking to the judge in chambers without notifying the prosecutor and by "undignified and discourteous" behavior. It further held that the lawyer's diabetic condition, now under control, played a role in the behavior. Censure was imposed.

P.S. the client was acquitted of all charges.


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