I recently posted on how courts discipline (or fail to discipline) lawyers. Tangentially, I am also particularly interested in the impact of “data darwinism,” reputation in the digital age and its implications on professional discipline.
A court might sanction a lawyer $X,000 dollars for perceived wrong-doing but maybe a “benchslap,” that is, harsh words in a publicly available legal opinion or court order, freely available and “googleable” for the foreseeable future, could be an even stronger deterrent? And, since courts can, at times, make mistakes, could it be that public chiding or shaming might be an excessively destructive and punitive measure? Putting aside the question of the long term risk to lawyers’ professional reputations posed by public benchslaps, how much do they harm the lawyers’ clients in the very cases in which the public floggings are administered?
Defendant’s supporting memorandum frankly mischaracterizes this Court’s May 4 Order. Although the Court spent over fifty pages carefully addressing and distinguishing relevant case law, Defendant carelessly accuses the Court of not “cit[ing] any relevant authority for its position.” Unfortunately, in the fog of Defendant’s anger about the Court’s ruling finding subject matter jurisdiction (a position Defendant endorsed for years until the eve of trial), Defendant distorts the record, requiring the Court, once again, to carefully explain its ruling.
It is fairly uncommon to sense irritation in judicial writings but am I right to be feeling it in the quoted passage? I think so. I don’t think that Defendant has put its best foot forward as it faces an imminent trial before U.S. District Court Judge Susan R. Nelson (D. Minn.), set for August 17 in Duluth, Minnesota. On the other hand, can anyone reasonably suggest any case is lost, or one’s client’s case is even marginally harmed, because a lawyer stepped on the judge’s toes in the days leading up to trial?
At a minimum, it is safe to say that it cannot help…