Thursday, April 11, 2019

The One Lawyer Rule

After a lengthy hiatus the Florida Supreme Court is issuing opinions again.

One involves the public reprimand of a judge

During a felony criminal trial, Judge Dennis Daniel Bailey ordered his courtroom deputy, loudly and in front of the jury, to remove one of the defendant’s attorneys from a sidebar conference. He then improperly denied the defendant’s disqualification motion. Judge Bailey and the Judicial Qualifications Commission have stipulated that he violated the Code of Judicial Conduct and should be publicly reprimanded.  We approve the stipulation.

There were two defense attorneys

[w]hen one of the attorneys tried to help his colleague articulate a point during the sidebar, Judge Bailey repeatedly attempted to quiet him by saying, “One lawyer at a time,” “Only one lawyer argues,” followed shortly thereafter by, “You have a hard time understanding me? Two lawyers can’t argue one argument.”

There was no standing order that only one attorney per side was allowed to argue a point, and this was the first time Judge Bailey communicated such an order to counsel.

As the attorney who was trying to help his colleague started to say, “Judge I mean no disrespect,” Judge Bailey raised his voice over the “white noise” that he turned on during the sidebar conversation and ordered his courtroom deputy to approach the bench and “return this attorney to his table.” “The attorney immediately retreated away from the sidebar and back to counsel table as soon as he saw the deputy approaching.” Had the attorney not retreated to counsel table, Judge Bailey “would have allowed the deputy to use physical force, ‘if necessary.’ ” All of this was “in full view and hearing of the jury.”

Ms. Espejo’s non-removed attorney then moved for time to file a disqualification motion. Judge Bailey allowed a forty-five-minute break to draft and file the motion to disqualify, and then denied it as legally insufficient. Judge Bailey improperly denied the motion because he believed it was a “trial tactic” and he could be fair to the parties. He “did not consider the motion from the defendant’s perspective when considering whether or not to grant it.”

In the judicial misconduct proceeding, the judge admitted he had behaved intemperately.

A mitigator

Judge Bailey, on his own, signed up for stress management counseling “so that in the future, he is better equipped to handle stressful situations, and does not resort to knee-jerk reactions.” He has also apologized, in writing, to Ms. Espejo’s attorney for what happened during the trial.

He also had no prior record of judicial discipline. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/04/after-a-lengthy-hiatus-the-florida-supreme-court-is-issuing-opinions-again-one-involves-a-judge-during-a-felony-criminal-t.html

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