Friday, December 12, 2008

The Limits Of Zealous Advocacy

An order holding an attorney in a domestic relations matter in criminal contempt was reversed by the Tennessee Court of Appeals. The attorney allegedly had instructed her client to violate a trial court order awarding the adverse party two nights of overnight parenting every other week. The court here held that the order allegedly violated lacked the essential element of specificity--when the parenting time would occur--to sustain the conviction. Rather, the evidence suggested that the attorney had "vigorously challenge[d]" an oral order that she believed was invalid. The court viewed the conduct as zealous advocacy rather than criminal contempt.

The attorney, however, did not escape without criticism from the court. Her appellate brief had characterized the trial court actions as "lies" that were "calculated" and "illegal." The court chided her: "While [the attorney] has the right, indeed the duty to zealously represent her client in this matter, and herself in this appeal, her use of the brief to convey her contempt for the trial court is inexcusable." The court viewed the attacks on the trial court as "impertinent and unprofessional" and in a footnote stated that "...we decline to re-publish that which should never have been published by [the attorney]."  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/12/an-order-holdin.html

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Comments

Despite refusing to address the issue of whether the trial judge did in fact lie, the court finds that it is unethical to claim that he did lie. While it might not be an ideal path to victory, it is totally inappropriate for a court to hold that it is a per se violation to accuse a judge of lying even when one might have the evidence to prove that it is true. Judges are not kings and all that judges do is not right.

Stephen

Posted by: FixedWing | Dec 12, 2008 11:41:05 AM

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