[Posted June 1, 2016] If you’re an ABA member (and you should be), you’ve seen the news out of Las Vegas that a judge last week ordered a public defender handcuffed and held in the jury box, seated next to inmates awaiting hearings. In the eyes of the court, her offense was not to stop talking when he ordered her to do so. In the eyes of her supporters, her offense was that she tried to protect her client’s interest when the judge was about to issue a summary ruling without hearing her argument. There’s a transcript of the short hearing and even a silent security video on the link above, though without the nuance of tone of voice, those can’t answer categorically who’s right.

Sound familiar? Remind you of some of the fire-breathing jurists you deal with every week? Well, in truth, things like this happen very, very seldom. The reason this made such a splash is the man-bites-dog feel to it: if judges directed the “arrest” of lawyers all the time, this wouldn’t have become a sensation. In my experience, the overwhelming majority of judges will tolerate an argument that’s made politely and respectfully. But this judge was havin’ none of it; he essentially gagged the lawyer while her client stood unrepresented before the court to receive a jail sentence.

For lawyers, the conflict is often most critical when they’re trying to preserve an issue for appeal. The lawyer may sense that the judge has already made up her mind – and he may be right about that, as many judges have poor poker faces on occasion – and will understandably want to preserve his ability to ask a higher tribunal to review the case. Indeed, as the Rules of Professional Conduct tell us, the lawyer has an obligation to do that, even in the face of judicial wrath.

This is one of the tightropes that trial lawyers have to walk at times. Last year, I discussed how to deal with such situations in a CLE program entitled, “Courage for the Chicken-Hearted: Protecting the Record in Hostile Territory.” I spoke about the professional and ethical obligations that lawyers must meet when faced with a variety of problems, including things like obvious home cookin’ in a remote venue, and outright judicial hostility.

The message of that program was that it takes guts sometimes to perform your professional obligations, and cowardice isn’t an option, no matter how angry the judge becomes. I’m fond of quoting a wonderful line from Chief Justice Lemons, who advised a group of trial lawyers, “If you’re afraid of trial judges, you need to consider a career as a transactional lawyer.”

He’s right. If you view a judge as a demigod with a robe and a ready supply of lightning bolts, you’re either in federal court (in which case your perception may be justified) or you’re predisposed to accept defeat without doing what you can about the record. (Just kidding about the federal-court angle. The lessons in this essay apply there, too.) After all, a judge can order you to stop talking while you’re in the middle of making a crucial argument or proffer, and he has a bailiff available to enforce his directive. What do you do?

The dynamic is even more complicated during jury trials. Jurors will regard the judge as an authority figure who can do no wrong, and they’ll view with great skepticism any lawyer who dares to argue that her honor is wrong about something. In this situation, a lawyer who needs to object and make a record risks angering the judge and turning off the jury. How do you perform your ethical obligations while giving your client the best shot at a victory?

The justices haven’t given us a bright-line answer, but some of their relatively recent rulings do give us some strong clues. Let’s take up Maxwell v. Commonwealth, 287 Va. 258 (2014). This opinion resolved two companion appeals; the one we’ll focus on is an appellant named Rowe.

Rowe faced a jury trial on larceny charges. With the evidence all in, the prosecutor rose to give his closing argument. Just before he concluded, he told the jury, in effect, “You’re entitled to infer from possession that the defendant is guilty unless he comes forward with evidence to the contrary. And, of course, he didn’t offer any evidence.” Two short sentences later, he sat down.

Criminal-law practitioners will recognize here a clear violation of the defendant’s Fifth Amendment right to remain silent and of the presumption of innocence. When the prosecutor sat down, the judge invited the defense lawyer to give a closing argument. Instead, the lawyer said, “Actually, before I make my argument, there’s a motion I would like to make outside the presence of the jury.”

Anyone familiar with practice inside a criminal courtroom knows what the lawyer meant: a motion for a mistrial. The prosecutor had crossed a line, and this jury was tainted. But the judge had other ideas: “We’ll deal with it when the jury goes out to retire.” I assume that the court reasoned, there’ll be a long stretch of time when we’ll otherwise have nothing to do; this is more efficient. The lawyer said simply, “Very well,” and began his closing argument.

Unfortunately, once the jury begins to deliberate, it’s too late to make a mistrial motion based on improper argument of counsel. Once the door to the jury room closes and the jury has the case, all objections to arguments are waived. That’s a bright-line rule.

The question presented in Rowe was whether a lawyer can waive an argument by obeying the judge’s directives about when to make the motion. Specifically, the justices considered whether the lawyer had “no opportunity to object to an order or ruling at the time it is made …” If that’s the case, then by statute (Code §8.01-384) the party isn’t prejudiced by the absence of a timely objection.

Unfortunately for Rowe, and for chicken-hearted lawyers across the Commonwealth, the answer is that the lawyer had the opportunity to make the motion, but he meekly accepted the judge’s directive to delay making it until it was too late. A 5-2 majority of the justices ruled that in this situation, the lawyer had the duty to fight back – to insist upon being allowed to make the motion in a timely way.

Justices Lemons and Mims dissented, insisting that “there has to be a recognition of real world trial practice.” The dissenters felt that the judge should immediately have known what the motion would be. They also expressed the concern that I describe above – the fact that by arguing with the trial judge in the jury’s presence, “defense counsel risked prejudicing the jury against him, and by extension, his client.”

Now, what kind of a dilemma is that to inflict upon lawyers? You either stand up to the judge and risk offending the jury (not to mention the judge), or else obey the judge’s directive and waive a meritorious issue for appeal. The latter course, I hasten to add, might bring the threat of a Bar complaint. The majority’s ruling in Rowe indicates that such a complaint might be valid, at least from 2014 on. Hence the dilemma: Bar complaint or jail cell? Jail cell or Bar complaint? Hmmm …

The Nevada lawyer who was cuffed and silenced last week assuredly didn’t know about Rowe, but she seems to me to have been motivated by its majority’s thrust. What do you do if your ethical obligations to your client demand that you speak up, but the judge says – perhaps angrily – “Shut up, counsel!”? The Las Vegas defender effectively did what the SCV majority said that Rowe’s lawyer should have done, and her reward was a pair of bracelets.

I’ll add one more component to this discussion, if only to confirm that the problem persists. On April 22, the Supreme Court of Virginia decided Way v. Way, involving a trial lawyer’s request for a continuance because the clerk of court had refused to issue trial subpoenas that the lawyer had timely requested. The issue on appeal was whether the court abused its discretion by refusing to continue the trial because of the clerk of court’s mistake.

One aspect of the case especially alarmed me. Here’s what I wrote back then:

In my view, probably the worst thing that the judge did was, in response to the husband’s lawyer’s arguments that the court should hear all of the witnesses, to threaten her with contempt “if you keep going … after I have told you I am not going to hear it. I am going to find you in contempt if you continue.”

This passage was horrifying to me – a judge who threatens a lawyer who’s making a proper record and protecting her client’s rights. There’s no indication that the lawyer argued rudely, or was otherwise contemptuous of the court’s dignity; the judge simply wanted to shut her up.

And that, my dear readers, brings us back to last week’s embarrassment in Las Vegas. At least the Virginia judge didn’t shackle the lawyer who just wanted to make a record. On the other hand, that Virginia lawyer may or may not have held back an argument in order to avoid judicial wrath; we’ll almost certainly never know. These rulings establish firmly that the essential requirements for practicing law include guts and a fair measure of diplomacy.