Sunday, November 26, 2017

Barred From the Bar

Careful with your words here. 
In re Brittain, 2017 VT 31

By Eric Fanning

Eric Brittain applied for admission to the Vermont Bar and was denied because he failed the Character and Fitness review. He wants SCOV to let him practice law in Vermont, and so he appeals.

SCOV has original jurisdiction because it is responsible for regulating the practice of law in the State of Vermont, and has disciplinary authority concerning lawyers. One of the requirements of admission to the Bar is demonstration of good moral character and fitness, which is decided by the—wait for it . . . Character and Fitness Committee.

The Committee vets would-be-licensed attorneys, and tries to make sure that lawyers who actually are admitted have decent character and ethics. For example, applicants with a lengthy history of felony convictions or bearers of false witness (if I may get biblical for a moment) will have a hard time being accepted to practice law, even assuming they’ve already satisfied the educational requirements for admission. You don’t have to be Mr. Rogers to pass the Character and Fitness review, but somebody with the ethics of, say, Daniel Plainview probably won’t make the cut. The “fitness” part doesn’t mean fitness like this, it just means means that you have to be physically and mentally capable of doing a lawyer’s job—but that’s not our focus here.

In Mr. Brittain’s case, the Character and Fitness Committee declined to certify his good moral character and fitness based on a history of allegedly inappropriate courtroom behavior resulting in multiple contempt charges, and inability or refusal to take responsibility for his past misconduct. Because of SCOV’s “constitutional authority and responsibility for regulating the practice of law,” its review of the Committee’s determination is of the de novo variety.

At issue in Mr. Brittain’s appeal are six specific events that raised red flags for the Committee. SCOV analyzes them in turn (and chronologically). The first incident that pricked the Committee’s ears was Mr. Brittain’s suspension from the Wisconsin Public Defender’s Office. He got a job there not long after graduating from law school. A couple years into the job, he had a falling out with the Public Defender over a specific juvenile offender program (as SCOV notes, “applicant opposed a policy requiring juveniles to be shackled when taken to court, and wanted to file a court action challenging the policy.”) He expressed his views in “multiple strongly worded emails,” including in one he sent to the Board of Directors for the Wisconsin Public Defender’s. After Mr. Brittain initiated his righteous crusade in defiance of his employer, he was suspended.

To be honest, this doesn’t sound like too big a deal to me—after all, he was challenging a policy that does sound pretty abhorrent, and, let’s not forget, it was his job to advocate for his clients’ rights. Where Mr. Brittain loses face, however, is in his disclosure of the incident on his Bar application. On the Vermont application, he provided the following explanation for his suspension: “Already on leave due to disagreement with employer over legality of ACE program.” When contacted about this, one of his former supervisors said his description was incorrect because “other issues were under investigation.” What those issues were, I guess we’ll never know, but in any event, that is strike one against Mr. Brittain as far as SCOV is concerned.

SCOV focuses next on a group of cases in which Mr. Brittain was held in contempt because of his courtroom behavior. There’s a few of them, so I’ll try to be as quick as possible—but they are pretty fascinating. In the first case, he represented the defendant in a criminal jury trial. During his opening statement, he was reprimanded by the judge for bringing up personal experiences and for vouching for his client (there is a difference between vouching and advocating). After the judge told Mr. Brittain that he couldn’t do what he was doing, he accused the judge of being biased and asked the judge to recuse himself. When he was allowed to continue his opening statement, he insinuated that the judge was interfering with his client’s rights to a fair trial. This rubbed the judge the wrong way, and so Mr. Brittain was held in contempt. The appellate court upheld the contempt order, and he was also publicly reprimanded by the Wisconsin Office of Lawyer Regulation.

Mr. Brittain got himself in more hot water with a different judge while representing another criminal defendant. I won’t go into the details here, but here is part of his statement to the judge (who’s recusal he had requested). I’ll let you, dear reader, decide if this is something you should ever say to a judge:
I believe you made physical gestures with your head and your eyes. You had your arms outstretched. You walked quickly off the bench. You raise your voice—behavior I have never seen before and I hope to never see again by any judge in any courtroom. I do not know if there is a physical issue that you were having or some other health issue that has affected your ability to be appropriate, but at this point, I don’t think it should affect my client’s right to a fair trial.
Yea . . . .

Anyway, so moving on. A year after that incident, Mr. Brittain was again held in contempt during another criminal jury trial, this time for referring to his client by his first name, and for ignoring the judge’s repeated orders to stop. The full exchange is included in SCOV’s opinion, but my favorite bit is his justification for using his client’s first name after being called out by the judge: “I have gotten to know him very well, very well.” Mr. Brittain went on to tell the jury that the court was biased against him, and apparently stormed around and slammed a book after receiving an unfavorable ruling from the court.

The final courtroom incident occurred during a motion hearing and voir dire a year after the previous incident. While Mr. Brittain was arguing a motion, he personally attacked the prosecutor (in his argument, he stated that he “would expect a prosecutor of [fifteen] years to know” a tenet of his argument). The judge called him out on this, and he denied the attack was personal and invoked his “First Amendment Rights.” He also accused the judge of being biased (sound familiar?) and acting as an “advocate for the State” and asked the judge to recuse himself (this too?). I think you can see where this is going: Yep. Contempt land.

During voir dire, Mr. Brittain again accused the court as acting as an advocate for the State after the court sustained an objection by the prosecution of his use of an unrelated newspaper article (as a “pedagogical device”). He was again held in contempt. SCOV notes, “The court emphasized [Mr. Brittain’s] repeated misbehaviors, stating that he ‘repeatedly, insistently, loudly fail[ed] to comply with the [c]ourt’s orders,’ and determined that he ‘impaired the dignity of the [c]ourt and the proceedings.’”

SCOV gives a short and sweet account of the final incident under scrutiny: “On his application, [Mr. Brittain] disclosed an incident at the Milwaukee airport in 2011 when he was detained for failing to comply with airport security directives, in violation of a municipal ordinance. It appears that applicant refused to follow TSA protocols. He pled no contest and paid a fine.”

SCOV looks at the record and decides that the Committee was right that Mr. Brittain doesn’t have the “necessary moral character” to be admitted to the Vermont Bar. SCOV is particularly concerned that his prior conduct (or rather, misconduct) in the courtroom demonstrate a pattern of disrespect and insubordination. This pattern of disrespect and insubordination, SCOV believes, is “likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Rules of Professional Conduct” (quoting the Rules of Admission to the Bar).

SCOV says that they wouldn’t deny Mr. Brittain admission to the Bar if he only had one, or maybe two, of these instances of misconduct in his past. However, taken together, SCOV thinks he has shown a pretty disturbing and destructive tendency to disrespect the court “by willfully disregarding court orders or interrupting or inappropriately arguing with the judge about those orders . . . and he frequently responded to the court’s admonitions by asserting that the judge was biased against him.” SCOV can’t accept this behavior and finds, in addition, Mr. Brittain has refused to take responsibility for his actions. So, the Character and Fitness Committee’s decision stands, and Mr. Brittain doesn’t get to practice law in Vermont.

Justice Dooley dissents, though doesn’t necessarily condone Mr. Brittain’s behavior. He implores SCOV, in a time when the criminal law needs “more zealous and skilled advocates” to “not confuse passion and zealous advocacy with character flaws.”

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