Is a Lawyer Properly Held in Contempt for Denigrating the Legal Profession?

Friday, August 10, 2001

Page 9

PERSPECTIVES (Column)

Is a Lawyer Properly Held in Contempt for Denigrating the Legal Profession?

By ROGER M. GRACE

A lawyer who disgraces the legal profession based on misconduct in court may appropriately be found in contempt. But is it misconduct merely to portray the profession in unfavorable light in addressing jurors?

In yesterday’s column, I told of Steven G. Hanson of Yreka, Calif. who was found in contempt by a Siskiyou Superior Court judge for his comments during closing argument. Railing against the prosecutor, Deputy District Attorney Stephen C. Larson, Hanson asserted that his client had not received a fair trial. The judge, Charles Henry (who has since retired and assumed a judicial post in the Marshall Islands) charged Hanson with contempt based on that remark. The Court of Appeal upheld the contempt adjudication, holding that the one-liner was an assault on Henry’s integrity. For reasons I set forth yesterday, I think the conclusion was faulty.

Another basis for the contempt charge—today’s topic for discussion—was a comment by Hanson that it was the job of lawyers on both sides to misrepresent facts to the jury. Here’s what he said:

“The goal of the prosecution is to represent facts in a way [favorable] to their side. Defense attorneys do it. I do it in this case. We all do it. That is our job. You should never trust any attorney for what they say. Because they’re paid, just like I’m paid to misrepresent the truth to you.”

Larson objected; Henry sustained the objection; Hanson modified his assertion, telling jurors:

“Excuse me, I should have said to bend the facts to their case, that is what we get paid to do.”

The contempt matter was heard by a visiting judge from Modoc County, Larry Dier. During a confused oral statement as to why he was adjudging the lawyer to be in contempt, Dier said that Hanson’s comment was “not a factually true or a legally true statement.” He declared: “Lawyers are there to advocate certainly for their clients, and there often may be a tension between what you can legitimately say and what you can’t say. But I think when you make the statement that it’s your job to misrepresent or to bend facts, that is well beyond the boundary line.”

In other words, he found that Hanson had made an untrue statement which disparaged the legal profession. On its face, that would not appear to amount to a contempt.

Nonetheless, Dier found—and the Third District Court of Appeal agreed—that Hanson had committed a contempt under Code of Civil Procedure §1209(a)(3)—“violation of duty by an attorney….”

Statutory duties which Dier said that Hanson breached were those set forth in Bus. & Prof. Code §6068, subd. (b) (“[t]o maintain the respect due to the courts of justice and judicial officers”) and subd. (f) (“[t]o abstain from all offensive personality...”).

Dier also found violations of Rules of Professional Conduct, rule 5-200, para. (A) which requires that a lawyer “[s]hall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; and para. (B) which says that a member of the bar “[s]hall not seek to mislead the...jury by an artifice or false statement of fact or law.”

In his July 31 opinion denying a writ of prohibition (in Hanson v. Superior Court, 01 S.O.S. 3849) Acting Presiding Justice Richard M. Sims III found violations of duties on Hanson’s part, but omitted reference to Rule 5-200(A). It might be thought that he did so because Hanson clearly had not employed “means” inconsistent with the truth. No. Sims added a reference to Bus. & Prof. Code §6068(d) which requires lawyers “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth....”

Telling a jury that lawyers—himself included—bend the facts surely does not violate either the code section or the rule proscribing use of dishonest “means.” That allegation is plainly foolish.

I can’t see any relevance to the stricture that lawyers must accord “the respect due to the courts of justice and judicial officers.” In portraying the bar in unfavorable light, how did Hanson fail to show respect to the court, as an institution, or to the judge? He merely expressed his impression that our adversarial system entails lawyers on both sides bending the facts to benefit the client’s case. His comment was cynical and harsh, going beyond an assertion simply that lawyers, as advocates, present the cause they are advocating in the best possible light and the cause they are opposing in the worst possible light. The assertion that lawyers “bend” facts is softer than his initial statement that they “misrepresent” facts, but it still connotes chicanery. Many would disagree with the accuracy of Hanson’s assessment. Nonetheless, it cannot realistically be said that the assertion, though unflattering to lawyers, constituted a display of disrespect for the “the courts of justice” or “judicial officers.”

Did it constitute an effort to “mislead the...jury by an artifice or false statement of fact or law”? The only foreseeable effect on jurors’ conduct was to bolster the effectiveness of the standard instruction that lawyers’ statements were not to be viewed as evidence. The bottom line message was simply: “View with caution what I say or the prosecutor says, and go by the evidence.” The jury is not apt to have been “misled” in connection with reaching its decision in the case. (It convicted Hanson’s client of cultivation of marijuana and possession of marijuana for sale but found the weapons enhancement allegation not to be true.)

That few in the legal profession or in the judiciary would share Hanson’s view that the job of a lawyer is to bend the facts does not render his comment a “false statement” of the sort that could constitute a contempt. He was not telling a lie—he was expressing an opinion. The expression of his opinion might not have been appropriate, the accuracy of his impression is subject to dispute—but the words he spoke do not reasonably or logically lead to a conclusion that Hanson undertook to mislead the jury through a false statement.

In Gallagher v. Municipal Court of City of Los Angeles (1948) 31 Cal.2d 784, the high court said: “But certainly a mere mistaken act by counsel cannot render him in contempt of court. Even if a legal proposition is untenable, counsel may properly urge it in good faith….” There was no showing that Hanson uttered his comments in bad faith.

Then there’s the matter of Hanson being found to have engaged in “offensive personality,” as prohibited by Bus. & Prof. Code §6068(f). That provision was found by the Ninth U.S. Circuit Court of Appeals in U.S. v. Wunsch (1996) 84 F.3d 1110 to be unconstitutionally vague.

It’s true that decisions of federal appeals courts are only of persuasive value. Indeed, after Wunsch came down, the California Supreme Court invoked the “offensive personality” proscription in People v. Hill (1998) 17 Cal.4th 800 (though it was perhaps an oversight).

However, if you ask yourself just what a proscription on “offensive personality” entails, I think you’ll conclude that the holding in Wunsch is correct.

Here’s the reasoning in that case offered by Judge Edward Leavy:

“Clearly, ‘offensive personality’ is an unconstitutionally vague term in the context of this statute....As ‘offensive personality’ could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute. For the same reason, the statute is ‘so imprecise that discriminatory enforcement is a real possibility’..., and is likely to have the effect of chilling some speech that is constitutionally protected, for fear of violating the statute.”

Though it does not take effect until Jan. 1, I think it’s worth mentioning that legislation has been enacted removing the “offensive personality” provision from §6068. The bill effecting the change, SB 352 (Kuehl), recites: “The Legislature hereby finds and declares that the provision imposing the duty on an attorney to abstain from having an offensive personality, which is codified in subdivision (f) of Section 6068 of the Business and Professions Code, has been held to be unconstitutionally void for vagueness by the United States Court of Appeals, Ninth Circuit (U.S.A. v. Wunsch (9th Cir. 1996) 84 F.3d 1110).”

Sims cites but one case in support of the notion that Hanson committed a contempt by accusing opposing counsel of bending the truth. It’s People v. Bell (1989) 49 Cal.3d 502. Ironically, it was Hanson who brought the case to the court’s attention. An issue was whether there had been prosecutorial misconduct. The Supreme Court said (with citations omitted):

In his closing and rebuttal argument, the prosecutor commented: “It’s a very common thing to expect the defense to focus on areas which tend to confuse. That is—and that’s all right, because that’s [defense counsel’s] job. If you’re confused and you’re sidetracked, then you won’t be able to bring in a verdict.” He also said: “It’s his job to throw sand in your eyes, and he does a good job of it, but bear in mind at all times, and consider what [defense counsel has] said, that it’s his job to get his man off. He wants to confuse you.”

Although counsel have broad discretion in discussing the legal and factual merits of a case...or to resort to personal attacks on the integrity of opposing counsel....Here the prosecutor acknowledged that defense counsel’s comments were proper and that he was just doing his job. His remarks could be understood as a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom. Nonetheless, to the extent that the remarks might be understood to suggest that counsel was obligated or permitted to present a defense dishonestly, the argument was improper. (See former Rules Prof. Conduct, rule 7-105 [a member of the State Bar “shall not seek to mislead the...jury by an artifice or false statement of fact or law.”).

Sims commented: “Bell supports the respondent’s conclusion that it is contemptuous for an attorney to assert that opposing counsel’s job is to misrepresent the facts.”

It does.

It supports, but far from compels, the conclusion. The issue in Bell was prosecutorial misconduct. The attorney had not been formally charged with an ethics violation. The case stemmed neither from a State Bar proceeding nor a contempt proceeding. The opinion, by Justice David Eagleson (since retired), spoke in terms of how the lawyer’s comments to the jury “might be understood” and drew attention to Rule 7-105. It not proclaim that the prosecutor did violate that section, let alone declare that he had committed a contempt.

A portion of the opinion ignored by Sims torpedoes the other basis for the contempt adjudication: the supposed insult to the judge. Hanson, in criticizing the prosecutor’s conduct, alleged that his client did not receive a fair trial. He was attacking the prosecutor, not the judge. Yet, Sims inferred that if denial of a fair trial was asserted, this necessarily was a disparagement of the judge. It “impugned” the judge’s “integrity by suggesting he had failed in his duty to guarantee a fair trial,” Sims concluded.

However, Bell makes clear that unfairness can occur in a trial with no fault on the part of the judge. Eagleson wrote:

“Defendant also contends he was denied a fair trial because the judge failed to intervene sua sponte to curb the misconduct of the prosecutor during closing arguments. While it is the duty of the judge to ‘control all proceedings during the trial, and to limit ... the argument of counsel to relevant and material matters’ (§1044), we do not expect the judge to correct each instance of misconduct on his own motion….Counsel are allowed considerable discretion in presenting and arguing their case, just as opposing counsel are permitted to determine in the first instance whether and when to object to any perceived abuse of that discretion. In this setting the role of the judge is somewhat restricted, although he must be more than a bystander or umpire and has a duty to assure a fair trial, he is not required to identify as misconduct, or correct sua sponte, improper prosecutorial argument.”

Sims was wrong in finding that Hanson’s protest that his client had not received a fair trial was a slap at the judge. He was wrong in concluding that it was a contempt of court to portray negatively the role of counsel in the adversarial system. He was wrong in joining with his colleagues Consuelo Callahan and Harry Hull Jr. in denying writ relief.

Hanson told me he intends to seek review in the California Supreme Court, but expresses pessimism as to his chances of gaining an audience there. I wish him luck.