The Ethics Of Potted Plants

The Louisiana Supreme Court confronted an unusual situation in a criminal case and found that an attorney engaged in misconduct by sitting mute when his client absconded after the trial had commenced.

The court imposed a six-month suspension with all but 30 days stayed and probation.

Respondent had also failed to file taxes for two years and pled guilty to a misdemeanor for one of the years.

In a attempted first degree murder of a police officer trial

On the first day of the two-day trial, [Respondent’s client] Mr. Brown was with respondent while a panel of prospective jurors on voir dire was questioned by the trial court and then by the prosecutor. Following this questioning, the trial court recessed for a brief restroom break. During the break, Mr. Brown left the courthouse and did not return.

Efforts made to locate Mr. Brown were unsuccessful. The trial court noted that Mr. Brown had voluntarily absented himself after trial had commenced. Thus, according to the trial court, Mr. Brown’s presence was not required, and the trial would continue. Respondent moved for a continuance and a mistrial, but the trial court denied the motions. Respondent then advised the court that he would not participate in the trial and would simply sit at the counsel table, taking no role in the defense. The jury was picked without any input from respondent on Mr. Brown’s behalf. Respondent also did not give an opening statement or closing argument, made no objections, and did not participate in cross-examination of the State’s witnesses or call any witnesses for the defense.

At the conclusion of the trial, the jury found Mr. Brown guilty as charged on all counts, and he was sentenced by the trial court. However, the convictions and sentences were reversed on appeal and the case remanded for a new trial after respondent’s conduct was found to be a clear case of ineffective assistance of counsel…

Respondent defended his conduct at the trial

He made these decisions “on the spot.” Respondent felt his actions were taken in the best interests of his client because the case involved a police officer’s testimony versus his client’s version of events. Judge Burris did not hold respondent in contempt for failure to participate at trial, stating: “That is your strategic choice.” Respondent did not request the opportunity to take writs to the court of appeal.

The trial judge testified in the bar discipline matter

Judge Burris did not report respondent’s conduct to the ODC for the same reason that he did not hold respondent in contempt– doing so would be tantamount to telling someone he would “have to potentially breach the Fifth Amendment by speaking or by participating in trial.” Judge Burris had a discussion much later with the assistant district attorney who thought the First Circuit’s decision instructed the DA’s office to report the matter to the ODC. Judge Burris did not know that he would agree with that interpretation, but since the DA’s office had already reported the matter, it was not necessary for him to do so. Judge Burris testified that his number one priority in a jury trial, outside of the constitutional rights of the defendant, is to value and honor the commitment made by jurors.

The hearing committee’s findings

With respect to Rule 8.4(d), the committee noted that respondent acted in what he believed to be the best interest of his client. He had not previously faced the situation of a client absenting himself during trial and neither had the presiding judge or the prosecutor. The decision was made during the heat of trial. Respondent was not ordered by the court to participate in the trial. Balanced against respondent’s actions, and what he believed were the best interests of his client, is the potential adverse impact on the justice system. The precedential effect of no ethical violation for an attorney’s unwillingness to actively participate on behalf of his absent client during trial has a potential adverse impact on the administration of justice, which is concerning; however, no credible evidence was presented to show that respondent was complicit in any way with his client’s absence. To the contrary, Judge Burris testified that respondent was agitated and visibly upset after learning his client left the premises. Respondent was open with the court about why he felt he could not continue to participate in the trial without his client. Furthermore, the evidence showed that he was prepared for trial, and his decision to not participate in the trial was not self-serving.

The court

We find that under these circumstances, respondent did not act with reasonable diligence in representing Mr. Brown and that his conduct was prejudicial to the administration of justice.

Sanction

Under the unique circumstances of this case, we find the appropriate sanction is a six-month suspension, with all but thirty days deferred, followed by a one-year period of probation.

Justice Crichton concurred

In this case, as the majority explains in detail, respondent moved for a continuance when his retained client—who was charged with attempted first degree murder of a police officer, among other charges—fled the courthouse during jury selection. This rare situation occurred without warning and presents to the Court as a res nova issue in the professional responsibility context. Though respondent’s initial confusion over the situation was understandable, a lawyer in this situation cannot opt to be the proverbial potted plant. The effect of respondent’s decision was that, by absconding the courthouse during trial, his client was permitted a retrial due to respondent’s choice to sit entirely mute—a result the justice system cannot condone.

Dissent of Justice Crain

I do not believe respondent’s choice to not participate violates the Rules of Professional Conduct. The defendant has the right to assistance of counsel. U.S. Const. Amend. VI; La. Const. art. 1, § 13. However, the respondent had no one to assist because the defendant absconded. Through this act, the respondent’s ethical obligation to the defendant also disappeared. Further, a defendant must be competent to assist in his defense, or it is a violation of his rights to proceed. La. Code Crim. Proc. art. 641. Here, there was no competent defendant to assist counsel.

Under these facts, counsel was not obligated to do anything. I dissent in part and find no violation of count two.

(Mike Frisch)