Lawyers boast about their success rates.1 You see it everywhere. From billboards to courthouse conversations, lawyers like to talk about their wins.
Such self-congratulatory chatter may be irritating, but usually has no negative impact on the lawyer, the case, or client. Indeed, many lawyers broadcast their courthouse accomplishments throughout the community to attract more clients and—let’s be honest—simply to make themselves feel good. But can touting one’s trials triumphs ever go too far? Absolutely.
A Cautionary Tale About Gloating
A California lawyer recently learned the difficult lesson that district judges may tolerate only so much boasting and self-congratulatory talk after trial. The lawyer represented a gastroenterologist in a medical malpractice case in a claim for the wrongful death of a forklift operator, Sanchez. Sanchez had been admitted to the hospital in 2017 for abdominal pain caused by alcohol-related pancreatitis. Sanchez’s family claimed that during treatment the doctor inserted a feeding tube which accidently hit Sanchez’s colon causing sepsis, and later, death. In defense of the doctor, the lawyer steered the jury’s attention to mistakes made by other hospital staff members and argued that the doctor was not at fault for Sanchez’s death. The twelve jurors decided that the gastroenterologist was not responsible for Sanchez’s death.
Defense counsel swiftly commenced a victory party. During the event, the lead attorney on the case made comments regarding the guilt of the defendant. Specifically, a partygoer captured defense counsel on film boasting that the case involved “a guy that was probably negligently killed, but we kind of made it look like other people did it.” The video was posted to the firm’s social media page. Further, the district court judge viewed the video of the lawyer’s boasting session. All parties were summoned back to the courtroom.
The trial judge vacated the jury verdict and ordered a new trial in response to the lawyer’s boastful comments. The judge reasoned that the lawyer’s comments in the video “seem[ed] like an admission that the plaintiff should have prevailed.” The judge noted that “bragging isn’t a great irregularity,” however, he explained that “bragging that justice wasn’t done, that’s what bothers the court.” The judge ruled that the plaintiff deserved a new trial.
The judge also cited several other reasons to support his decision to order a new trial. First, the judge scrutinized the defense lawyer’s closing argument in which he used the phrase “Welcome to America.” The judge emphasized that the because the deceased was from El Salvador, the lawyer’s phrase could be seen as an emotional plea meant to bring anti-Hispanic sentiments from the jury. Second, the judge noted that he had allowed a three-week break midtrial which could have impacted the jury’s attention and ability to remember details about the case. Finally, the judge said that the jury foreman had failed to disclose certain information about his professional history which could have impermissibly colored the jurors’ perceptions of the evidence.
The California State Bar has not taken public action against the defense lawyer for the comments made during this online bragging session. But the defense lawyer no longer represents the defendant in the proceedings leading up to the new trial. And the lawyer can no longer count this medical malpractice case among the “W’s” in his success spreadsheet. Perhaps that is punishment enough.
Should Louisiana lawyers except to face similar consequences?
Louisiana judges have broad authority to maintain order and respond to lawyers conduct in their courtrooms. To that end, judges have a lot of discretion in dispensing justice as needed. For example, judges can impose sanctions upon a party who violates the Louisiana Code of Civil Procedure. See La. Code of Civ. Proc. art. 863(D). Likewise, a judge can order a new trial “in any case if there is good ground” to do so. See La. Code of Civ. Proc. art 1973. For some judges, publicly posting a video of a lawyer bragging about making “it look like other people” were responsible for the conduct at issue may be “good grounds” to order a new trial. Other judges, however, may require proof that a lawyer’s out-of-court comments violate the Louisiana Rules of Professional Conduct before determining that “good cause” existed to order a new trial.
It is unclear whether a lawyer violates the Louisiana Rules of Professional Conduct by making post-trial comments about the subject matter of the case. Louisiana Rule of Professional Conduct rule 1.6 prohibits a lawyer from revealing information related to the representation of a client unless certain criteria are met prior to the disclosure. See La. Rules of Prof’l Conduct, r. 1.6. Further, Rule 1.6(c) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relation to the representation of a client.” See La. Rule of Prof’l Conduct, r. 1.6. A lawyer could violate the rules protecting a client’s confidential information if the lawyer reveals information related to the representation—advertently or inadvertently—following a trial.
Further, a lawyer cannot “engage in conduct that is prejudicial to the administration of justice.” See La. Rule of Prof’l Conduct, r. 8.4(d). On the one hand, a lawyer would not violate this rule by making private comments about a case when those comments do not impact the judicial system. On the other hand, if the lawyer’s comments impact the case or controversy—for example, if the trial judge orders a new trial based on a lawyer’s post-verdict comments—then the lawyer’s conduct may interfere with the orderly administration of justice in violation of Rule 8.4.
The above hypotheticals beg the question of whether a lawyer disciplinary agency should have any role in regulating a lawyer’s private speech within the privacy of their office or home. Should the disciplinary agency’s role in regulating speech change simply because the lawyer’s comments are posted online without the lawyer’s permission? Some courts have imposed increased sanctions for lawyer misconduct occurring online finding that “the use of social media exacerbates the problem the ethical rule seeks to address.” See In re: Winston Bradshaw Sitton, BPR#018440 at 22 (Jan. 22, 2021). But even when lawyers engage in abhorrent conduct, courts must ensure that the lawyer’s conduct violated the Rules of Professional Conduct—regardless of whether that conduct occurred on or off-line—prior to taking action against a lawyer’s license to practice law.
- Special thanks to our Fall 2022 Research Assistant Alexis Topel for researching and writing the initial draft of this post. ↵