Byte of Prevention Blog

by Jay Reeves |

“Tender” Handshake with Judge Prompts Removal Request

Here’s a little risk management tip: when you’re in court, be careful not to appear too chummy with the judge.

It might provoke the other side to try to get the judge tossed from the case.

That’s the story in Miami, where a plaintiff has petitioned the Florida appeals court to remove the presiding judge after he “affectionately clasped the hands of the opposing counsel” when she approached the bench to talk about an unrelated matter.

“The opposing lawyer is … a former judge who served on the Miami-Dade circuit court at the same time as [the presiding judge] before she left the bench in 2011,” according to this report in the ABA Journal. “She also worked in the federal public defender’s office with [the judge].”

The physical contact – described in the petition as “so close and tender” – took place at the end of a status conference in January.

Defense counsel approached the judge and placed her hands on the bench in front of him. The judge clasped her hands in both of his “in a highly unusual and intimate sign of affection,” the petition says. They chatted for a few minutes.

The petition alleges the hand clasp suggests “their relationship was so close and tender that it appeared familial or one based on a lifelong or extremely personal relationship.” The petition also says that during the encounter the judge looked directly into opposing counsel’s eyes and gave her “his rapt attention and respect,” but when their side spoke the judge “would look down or appear annoyed and even displayed a tone of hostility.”

In February, the judge denied a motion to disqualify himself. In response to the removal petition, the defense attorney says she had approached the judge to tell him about her new position with Florida’s agriculture commissioner. She is no longer on the case because of the new job, the ABA Journal reports.

Read the removal petition here.

Rule 3.5 Impartiality and Decorum of the Tribunal

(a) A lawyer representing a party in a matter pending before a tribunal shall not:

(1) seek to influence a judge, juror, member of the jury venire, or other official by means prohibited by law;

(2) communicate ex parte with a juror or member of the jury venire except as permitted by law;

(3) unless authorized to do so by law or court order, communicate ex parte with the judge or other official regarding a matter pending before the judge or official;

(4) engage in conduct intended to disrupt a tribunal, including:

(A) failing to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply;

(B) engaging in undignified or discourteous conduct that is degrading to a tribunal; or

(C) intentionally or habitually violating any established rule of procedure or evidence; or

(5) communicate with a juror or prospective juror after discharge of the jury if:

(A) the communication is prohibited by law or court order;

(B) the juror has made known to the lawyer a desire not to communicate; or

(C) the communication involves misrepresentation, coercion, duress or harassment.

….

(d) For purposes of this rule:

(1) Ex parte communication means a communication on behalf of a party to a matter pending before a tribunal that occurs in the absence of an opposing party, without notice to that party, and outside the record.

(2) A matter is “pending” before a particular tribunal when that tribunal has been selected to determine the matter or when it is reasonably foreseeable that the tribunal will be so selected.

 

Comment [1]: “Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the North Carolina Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of provisions. This rule also prohibits gifts of substantial value to judges or other officials of a tribunal and stating or implying an ability to influence improperly a public official.”

About the Author

Jay Reeves

jay.reeves@ymail.com | 919-619-2441

Jay Reeves practiced law in North Carolina and South Carolina. Over the course of his 35-year career he was a solo practitioner, corporate lawyer, legal editor, Legal Aid staff attorney and insurance risk manager. Today he helps lawyers and firms put more mojo in their practice through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations.

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