Attorney Fined for Causing Mistrial

A state appeals court has held that an attorney who caused a mistrial can be held in criminal contempt and fined for the entire cost of the trial. The decision resulted in the imposition of costs of $4,847 and a finding of a violation of ethics rules. According to ABA Section of Litigation leaders, the decision highlights the importance of being forthright with the court and the high consequences for not doing so.

Defense Attorney Represented Prosecution Witness

In In re: Contempt of Court, Appeal of: Richard J. McCague, a Pennsylvania attorney represented a defendant at trial for approximately two months. After the prosecutor completed direct examination of a key witness, but before cross-examination, the defense attorney informed the court that he represented that key witness on a different case. The attorney admitted to getting involved in the case through the representation of the witness.

The court could not be sure whether something had been concocted with the witness for cross-examination and expressed concern that the attorney might not question the witness aggressively for fear of hurting any case in which the attorney represented the witness. The attorney said he received waivers from the parties, but he did not present them to the court. The court declared a mistrial and removed the attorney from the case. The court then recused itself from the case and informed the attorney that he was no longer welcomed in its courtroom.

The attorney was ordered to show cause why he should not be held in direct criminal contempt of court under Pennsylvania Statute 42 Pa. C.S.A Section 4132(3). The statute allows a Pennsylvania court to impose punishments for contempt of court if a person misbehaves in the presence of the court and obstructs the administration of justice. At the show cause hearing, the attorney said the witness was only a prospective client. He apologized for not attempting to correct the court before the court declared the mistrial. The attorney presented a discontinuation letter which informed the witness he could not take her case because “she could not pay him.”

The court did not find the attorney’s explanation credible. The attorney had printed the letter from his computer, and he had taken the defendant’s case without any hope of payment. The court found that the attorney committed misconduct before the court, and it found the attorney had the intent to obstruct the proceedings. The court also found the timing suspect since the attorney had mentioned off the record that he would appreciate more time and might be seeking a continuance. The court indicated it was not going to grant a continuance because the attorney had plenty of opportunity to notify the court and did not do so until after the direct examination of the witness.

The attorney was fined $4,847, the cost of the proceedings. The attorney appealed the decision to the Superior Court of Pennsylvania, which affirmed.

Conflicts of Interest

The trial court found that the attorney had violated Pennsylvania Rule of Professional Conduct 1.7. Like Rule 1.7 of the ABA Model Rules of Professional Conduct, the Pennsylvania rule states that a lawyer shall not represent a client if the representation involves a conflict of interest that can exist when the representation of the client limits the lawyer’s responsibility to a former client.

At the contempt hearing, the trial court made this point when it questioned the lawyer: “You have knowledge of [the witness] that makes it hard to cross-examine her at this time. Is [the witness] going to be given a fair shot? Are you going to use the things she told you to get a leg up for [the defendant]? That’s why we never proceed this way, so that those people who come in here can believe that the court system is fair and working to the best of its ability on their behalf.”

Ethics Rules Implicated

Section of Litigation leaders agree that the attorney’s conduct implicated the ethics rules. “The court elected not to refer [the lawyer] to the bar, but it could have based on Rules 3.3 and 8.4,” explains John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “Model Rule 3.3 requires candor to the tribunal,” Barkett continues. “From the findings made, [the attorney] was not being candid. You never want to put yourself in a position where you are saying something to a court that is not true.” Rule 8.4 further requires the maintenance of the integrity of the profession by requiring an attorney to avoid professional misconduct, such as engaging in dishonesty, fraud, or deceit.

An Attorney’s Secret Weapon Is Honesty

An attorney should be honest with the court from the beginning. “Lawyers who find themselves in similar situations should stop, consider whether they may have breached any ethical obligations and, if so, exercise candor. In the case of legal ethics, two (or three or four) wrongs do not make a right, and the attorney’s best option is to come clean before his reputation is irreparably dirtied,” advises Margaret M. Toohey, Cleveland, OH, member of the Section’s Ethics & Professionalism Committee.