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Vol. 37, No. 5

A matter of life and death: Bar associations respond to recent attacks on lawyers, judges

by Robert J. Derocher

“Death threats. Stalking. Letters. Dead animals on door step.”

“The opposing husband in a contested divorce hid near the courthouse with a rifle and scope waiting for me, but was discovered by police in the nick of time ...”

“I was also the victim of an attempt ... to throw a grenade through the window of my residence.”

“[I]ndividual stalked me and my family for better than a year ... After he went to prison, he attempted to engage an individual to blow up the propane tank on my property and/or cause physical harm to my ... brother.”

— Responses from attorneys, “Violence Against the Nevada Legal Profession,” 2012 survey, State Bar of Nevada

As Stephen Kelson reflects on the surveys he has done in Nevada and five other Western states analyzing violence directed at lawyers and judges, a clear pattern is emerging, he says: The legal profession is increasingly dangerous.

“There’s a lot more [violence directed at lawyers] going on under the surface of what we’re hearing about,” says Kelson, a Utah lawyer who has spent more than a decade studying and documenting the issue. “There is an underlying problem that is being ignored. Attorneys don’t recognize the potential for violence. When they sit down with a client or sit across the table from the other side, they should evaluate who they’re doing business with.”

As Kelson’s anecdotes illustrate, threats and attacks aimed at lawyers are common. While research is scant on whether or not there has lately been a widespread increase in such attacks, statistics collected by the U.S. Marshals Service and the Center for Judicial and Executive Security show increasing attacks in federal and state courts over the last several years. Recent high-profile cases, such as the slayings of two prosecutors in Texas and of a Phoenix lawyer and his client after a mediation session, have bolstered fears of increasing violence toward lawyers, judges, and the legal system.

The incidents have prompted associations to evaluate their own office safety procedures and to look more closely at safety and security in the profession. But Kelson, along with others who have explored such issues, wants to see bars get more involved in educating their members, lawmakers, and the public about the escalating dangers that lawyers and judges face. Collaboration with the law enforcement community is also key, they say, in order to help thwart potential attacks before they occur.

From online vitriol to offline violence

“Things aren’t what they used to be,” says Timm Fautsko, principal court management consultant for the National Center for State Courts. “People are more willing to direct their anger [at lawyers and judges].”

The last decade, in particular, has seen a marked increase in violent acts and threats directed toward those in the legal profession. Between 2002 and 2012, the number of inappropriate communications and threats to federal judges more than doubled, from 565 to 1,370, according to statistics from the U.S. Marshals Service. Similarly, a study by the Center for Judicial and Executive Security (CJES) found that the number of documented shooting, bombing, and arson attacks at state courthouses has increased in every decade from the 1970s—jumping from 29 in the 1970s to 78 between 2000 and 2009. And in just the first two years of this decade, 24 such attacks were carried out.

“About 80 percent of these incidents are past-case related,” as people seek revenge against judges and lawyers whom they believe wronged them, says Steve Swensen, a former U.S. marshal who now serves as director of CJES. “These incidents are definitely increasing, as are other violent incidents [such as knifings and physical assaults].”

And among Kelson’s findings in the surveys of lawyers in six states (Utah, Oregon, Idaho, Wyoming, Nevada, and New Mexico):

· At least 40 percent of lawyers surveyed in five of the six states reported being threatened and/or physically assaulted at least once.

· In most states, general litigators, criminal defense lawyers, family law attorneys, and prosecutors were the most likely to receive threats.

· While more than half of such threats came from opposing defendants/litigants, the next most-likely threat source was the lawyer’s own client.

· Although courthouses remain the most likely place for a threat or attack, a lawyer’s place of business, home, and public places such as restaurants are also common sites for potential violence. That phenomenon is likely being driven in part, experts say, by metal detectors and other heightened security measures at courthouse entrances, which prevent violence there but not at other locations.

Reasons and explanations for the increasing attacks are numerous and varied, experts say, ranging from easy access to weapons to declining respect for the legal profession and an Internet frontier that encourages anonymous written and verbal attacks that can sometimes pave the path to actual violence.

Washoe County (Nev.) District Family Court Judge Chuck Weller was aware of some of the Internet chatter directed at him in 2006 when he was shot and injured with a long-range rifle in his chambers by Darren Mack, who was angered by Weller’s rulings in Mack’s divorce. Just hours before he shot Judge Weller, Mack had stabbed his estranged wife to death.

“It’s upsetting. I don’t look at them anymore,” he says of the anti-Weller sites and postings that can still be found online. “We deal with people who have problems. Some of them get upset.”

John Phelps, chief executive officer and executive director of the State Bar of Arizona, says he has seen a proliferation of online “hate and vitriol” directed at judges and lawyers, potentially stoking passions in a place where passions already run strong.

“It’s a highly emotionally charged system that is designed to be adversarial,” he says. “The level of anger and hate I see [online] suggests that there are people who may be capable of what they say.”

Lawyers are especially vulnerable because of the nature of their work, Kelson believes.

“When you threaten to take someone’s liberty, to take someone’s property, to change their lifestyle or home environment—those are triggers for people,” he says. “Emotions are high. People are looking for someone to hate, and lawyers are right there.”

But are lawyers and judges any more at risk than the general public—especially when viewed through the lens of mass homicides and attacks such as those at the Boston Marathon, in Newtown, Conn., in Aurora, Colo., at Virginia Tech, and at Columbine? David Gurnick, president of the San Fernando Valley (Calif.) Bar Association, isn’t so sure. Despite the nonfatal shooting of a former bar member outside a San Fernando Valley courthouse in 2003 and the unsolved killing of a high-profile attorney in nearby Los Angeles County in 2009, Gurnick doesn’t want lawyers to be singled out as a “special class” deserving more protection.

 “I don’t think [the risks] are any more dramatic than that which occurs in our society, generally,” he says. “Our world is full of high-pressure situations.”

A role for the organized bar

Although there might be debate about the risks that lawyers and judges face, the accumulation of headline-grabbing events might be having an effect on lawyers, judges, and bar associations.

“People are now starting to pay attention to these things, and they’re realizing that it can happen to anybody,” says Swensen, who provides safety, security, and threat assessment training through CJES.

In April, the Alabama State Bar—in conjunction with local law enforcement—conducted an “active shooter” training event at the bar’s headquarters to give employees tools for how to deal with such an event, according to Brad Carr, the bar’s director of communications. Nearly 50 people work at the bar headquarters, which is accessible to the public.

“There is a heightened sense of vigilance,” Carr says. “People are now much more cognizant of what to do than they were before the training.”

In Arizona, where lawyer Mark Hummels was one of two people fatally shot in January after a mediation session, the state bar has just completed a security assessment of its headquarters as part of a multi-pronged response to the shooting, Phelps says. In addition to the member survey planned by Kelson, the bar is also looking at other ways to address safety for lawyers and judges. The slayings of Hummels and of the two prosecutors in Texas are prompting more discussion of lawyer safety issues among bar leaders across the Southwest, Phelps adds. “My counterparts and I are talking,” he says.

Buck Files, president of the State Bar of Texas, says the bar has been outspoken in support of all prosecutors in the state in the aftermath of the fatal attacks on Kaufman County District Attorney Mike McLelland and his wife, in March, and of Kaufman County Assistant District Attorney Mark Hasse, in January. Files anticipates that the bar will play a role if, as expected, the state legislature looks at new laws designed to provide greater protection to prosecutors. The bar will also continue to have an armed police officer at its headquarters and to require visitors to wear badges, while also maintaining a secure parking garage for bar employees, he adds.

Security and courts experts such as Swensen and Fautsko believe bar associations can—and should—play pivotal roles in working with their members and the local law enforcement community to educate lawyers on the dangers of their jobs, and to plan for ways to avoid violent attacks.

From an educational point of view, lawyers need to learn how to spot potential danger and then take action to prevent it, says Fautsko, who teaches a course in predicting anger for the National Center for State Courts. “What are those indicators [of violence]? What doesn’t seem right? They need to know that,” he says.

Phelps expects the State Bar of Arizona to look closely at the idea of developing CLE that will provide lawyers with some of the tools they need to assess threat risks. As the former deputy director for Homeland Security in Arizona, he believes having such skills is critical.

“The greatest thing we can do is to help lawyers become educated, informed, and aware of their surroundings,” Phelps says. “If we can give lawyers tips on how to spot some of the signs [of violence], then the bar will have provided some service to the legal community.”

‘A system that is bigger than we are’

Bar associations also need to reach beyond their members to address safety and security issues, Swensen adds.

“Bars should let members know that they’re shareholders in managing risk ... and we rely on all shareholders in criminal justice to advise security and law enforcement personnel,” he says. “This is not traditional law enforcement. This is a culture change. And when it comes to security, listen to the law enforcement experts. Security is no longer the night watchman.”

One of the best ways for bars to get involved in that partnership, Fautsko adds, is to establish or join already existing court safety committees and/or task forces to better protect courts and the communities that rely on them. Planning for what to do in case of a violent attack should also be part of the discussion, he says.

“Get the bar association, judges, security people, and court staff together and have a pizza lunch every three or four months and talk about things like what to do in a hostage situation,” Fautsko advises. “That doesn’t cost a lot of money.”

Working together is also important, he adds, when it comes time to fund protective measures for the courts, from security equipment to staffing levels.

Kelson agrees with this approach, but his research and his time as a lawyer also tell him that convincing lawyers and judges to speak out on issues such as violence directed at them will likely be a daunting task.

“There’s a fear of stigma if you come forward. You’re taught, ‘You’re in the profession, this happens, buck up,’” Kelson says. “The perception is that you’re a weak attorney, you can’t deal with clients, you can’t handle the work—and you just can’t have that reputation.”

For Judge Weller, it was important that he return to the bench to show that the legal system should not be intimidated by violence. While caution is critical, he says, determination is vital.

“We’re part of a judicial system that is bigger than we are,” he says, “and it’s a privilege to be a part of it.”