On Testing the Limits of Civility at a Virginia CLE
by Jamison Koehler on July 30, 2010
Yesterday, while attending the mandatory session on professional ethics for lawyers recently admitted to the Virginia Bar, I heard a lot about what it means to practice law in the Commonwealth of Virginia. You are not just lawyers, we were told by one speaker after another; you are “Virginia lawyers.” The Virginia Bar seems to take special pride in the civility of its lawyers. Some of the court behavior that lawyers get away with in other states – the contentiousness, the tricks — is not tolerated in Virginia. “Honest,” “truthful,” “respectful,” and “pleasant” were among the words people used to describe this special breed of attorney.
I was very pleased to hear all of this because, right or wrong, I pride myself on these very qualities. Hey, I thought, I’m golden. That was, of course, until I went to the afternoon breakout session for criminal law attorneys.
The group was evenly divided between prosecutors and defense attorneys but the people who identified themselves as working on the defense side were surprisingly quiet. Maybe it’s because the lawyers who participate at such a CLE tend to be junior. Or maybe, influenced by all the talk about civility and pleasantness, people were afraid to contradict one another to argue a point.
After a while I had the feeling that I was talking too much. The other lawyers were beginning to look at me as though I could only see things through the narrow perspective of a rabid criminal defense attorney. In other words, I was beginning to think that maybe I should just shut up. We were discussing simple hypotheticals, and there was absolutely nothing at stake. I wasn’t going to change anybody’s mind. Why antagonize a group of people I might later run into in court at a time when there WAS something actually at stake?
By the time we got to the session’s final hypothetical situation, a scenario involving the prosecutor’s duty to turn over evidence during discovery, the county prosecutors from Fairfax County were glaring at me from across the room. The feelings were reciprocal. So much for civility and respect in Virginia.
The hypothetical involved the prosecution of a complicated case involving mail fraud and RICO. According to the scenario, the prosecutor and defense counsel meet at a storage facility for the prosecutor to turn over discovery material. Trial is drawing near, and the prosecutor knows that out of the thousands of pages of documents, there are only a handful of pages that are actually relevant to the defense.
The problem continues: “There is no pretrial order in place requiring any designation of proposed exhibits until the eve of trial and counsel has made several specific discovery demands informally to which [the prosecutor has] simply responded that ‘it’s all in there somewhere.’” The question posed for discussion: Does this statement fulfill the prosecutor’s obligations or should the prosecutor alert the defense lawyer to the relevant pages.” (The problem did not specify whether the relevant pages were clearly exculpatory or not.)
One of the prosecutors jumped in to answer the question. While I can’t remember exactly what she said, the thrust of it was that the prosecutor in the hypothetical had “covered” himself by turning over the documents even if it was clear that the defense counsel would never be able to identify the relevant documents in time for trial. Another county prosecutor jumped in to agree with her. Hey, this guy said, the prosecutor did what he needed to do. Let the defense counsel find the documents for himself.
A number of things were going through my head as I listened to this. First, I was still thinking that I had already talked too much at the session. There were a number of other defense lawyers at the session, including a group from the Fairfax County public defender’s office. Let one of them say something.
I was also thinking about all the things I had just learned about civility and professionalism, about not attacking or trying to embarrass another lawyer. You will run into this lawyer again on another date, we were told, and this will inevitably come back to bite you.
Finally, and again, I was thinking that this was simply a hypothetical exercise with nothing at stake. Why take it on? I could feel my blood pressure rise as I thought about all these things, and I knew that if my younger son was there watching me, he would have seen the expression on my face and he would have said: “Goosefraba, Dad. Goosefraba.” This is something he saw Jack Nicholson say once in a movie. Roughly translated, it means take a deep breath. Chill out.
As it was, I didn’t need to say a word. The next person to take the floor was a federal prosecutor from D.C., and he said everything I wanted to say. But he did it so politely, I am thinking he learned something from all the discussion about the Virginia way of doing things. He was also far more eloquent that I could have been.
Such an approach, he said calmly without looking at the other prosecutors, would be equivalent to not passing the documents at all. Besides, even if the documents had not been exculpatory (the hypothetical was unclear), why not point out the relevant documents to the defense attorney? What would you be trying to hide? And if turning over the information ruined the case, you probably shouldn’t be prosecuting the case to begin with.
We all kind of sat there for a second. The group leader nodded and the county prosecutors stared blankly. Yes, the group leader said finally. That’s the answer Bar Counsel gives.
I have some theories on the difference between county and federal prosecutors, but it is probably wise to keep those to myself. But I will say that they hire good people at the U.S. Attorney’s Office, at least in D.C. I have found that, with one or two exceptions and despite my occasional complaining, the overwhelming majority really seem to understand the prosecutor’s role within our system of justice.
They take the big picture. They get it. They understand that it is not a level playing field and that the prosecutor’s ethical duties are very different from the defense attorney’s. In this case, the federal prosecutor realized that it was not simply a case of “covering” yourself, of making sure you can get away with something without coming to the attention of Virginia bar counsel. It is not a game. It is not a competition that the prosecutor needs to win at any cost.
I don’t know if federal prosecutors in D.C. are taught that during training or if they come to the U.S. Attorney’s Office already understanding it but I imagine it is a little bit of both.
After the session, I went up to the federal prosecutor to introduce myself and to thank him for his remarks. I told him I was surprised that I had never seen him before. Oh, he said, that’s because I just started. I just came over from JAG. In fact, I have my first day in court on Monday.
And he is in good company. I had a case a while ago involving another Assistant U.S. Attorney who was able to look beyond a motivated (i.e., angry) complaining witness to see the big picture. Having been suspended from school two weeks before graduation, my client had already been punished. The costs to the government of taking the case to trial would have been grossly disproportionate to any benefits, and the immigration consequences of a conviction could have been far more serious than any sentence my client could have received. I tried to use the same civility, the same reasonableness, I was to hear about later at the Virginia CLE again and again, and the prosecutor reciprocated.
“I’m not going to talk to my supervisor about this,” he told me on the phone the night before the next court listing, the date at which we were to decide if the case would go to trial. “I’m just going to do it. I won’t be there for the status listing tomorrow but I will mark it on the file.”
When I arrived at court the next morning with my client, the prosecutor had done more than mark our agreed upon disposition on his file. He had decided to dismiss the case altogether. The client just looked at me. You mean that’s it? We’re done?
They don’t do much of that in Philadelphia, at least not under the old regime while I was there. From what I saw at yesterday’s CLE, I imagine they don’t do much of it in Fairfax County either. But there is hope here for the prosecution. At least at the federal level. At least in D.C. Somewhere there in the back of my head, I can hear my son saying goosefraba. And I can feel my blood pressure slowly dropping back to normal. The system can work.