Friday, January 18, 2008
The Nevada Supreme Court issued an interesting decision yesterday concerning attorney misconduct in closing argument to a jury. In four different cases, the same attorney made "substantially the same closing argument" that "encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them...amount[ing] to misconduct." The court vacated an earlier opinion and, in this revised opinion, "decline[d] to impose monetary sanctions on defense counsel and his clients." The court reviewed its closing argument jurisprudence, finding that jury nullification, personal opinion and "golden rule" arguments are improper. Different review standards apply "depending on whether the purported attorney misconduct was objected to or not." The opinion refers the attorney to the State Bar for investigation of potential ethical violations.
The court rejected the suggestion that the arguments were proper responses to the conduct of opposing counsel:
"We also reject defendants’ proffered justification that we must consider the plaintiffs’ attorneys’ purported misconduct when addressing Emerson’s unethical conduct. Defendants did not object below to the majority of the statements they now argue are misconduct, and we conclude that defendants have not overcome their failure to object by demonstrating irreparable and fundamental error. Nevertheless, the majority of defendants’ contentions regarding the plaintiffs’ attorneys’ purported misconduct are without merit and do not amount to misconduct. And in many instances, defendants’ arguments regarding plaintiffs’ attorneys’ purported misconduct are founded upon misrepresentations of the plaintiffs’ attorneys’ conduct.
More importantly, a court of law is no place to resort to the argument of 'he said it first' or 'he did it too.' Opposing counsel’s violations of professional standards should never be the basis for engaging in professional misconduct. Merely because another lawyer allegedly disregards the ethical rules does not give the opposing lawyer the right to also disregard the rules. Further, asserting that engaging in misconduct because another lawyer is also engaging in misconduct is in and of itself misconduct."
Two justices did not agree that defense counsel should be referred to the state bar. (Mike Frisch)