Attorney Fined for Causing Mistrial

• Author: Katherine G. Vazquez
• Pages: 7-7

state appeals court has

held that an attor ney who

caused a mistri al can be

held in criminal contempt

and f‌ined for the e ntire

cost of the trial. Th e decision resulted

in the imposition of co sts of the trial

and a f‌inding of a vio lation of ethics

rules. Accordin g to ABA Litigation

Section lead ers, the decision high-

lights the impo rtance of being forth-

right with the cour t and the high con-

sequences for n ot doing so.

In In re Contempt of C ourt,

Appeal of Richa rd J. McCague, a

Pennsylvania attorney represented

a defendant at tria l for approximate-

ly two months. Af ter the prosecu-

tor completed dire ct examination of

a key witness, but befo re cross-ex-

amination, th e defense attorney in-

formed the cour t that he represented

that witness in a di erent case.

The court expres sed concern

that the attorney mig ht not question

the witness aggressively for fear of

hurting the oth er case in which the

attorney represented the witness.

The attorney said h e received waiv-

ers from the par ties, but he did not

present them to the co urt. The court

declared a mistr ial and removed the

attorney from the c ase. The court

then recused it self from the case and

informed the at torney that he was no

longer welcom e in its courtroom.

The attorney was ord ered to show

cause why he shou ld not be held in

direct crimin al contempt of court

under 42 Penns ylvania Consolidated

Statutes section 4132(3). That statute

allows punishme nt for contempt if a

person misbe haves in the presence of

the court and o bstructs the adminis-

tration of justice. At th e show-cause

hearing, the at torney said the wit-

ness was only a pros pective client

and apologized fo r not correcting the

court before it de clared the mistrial.

The attorney also p resented a discon-

tinuation letter, whic h informed the

witness he could n ot take her case

because “sh e could not pay him.”

The court did no t f‌ind the attor-

Attorney Fined for Causing Mistrial

ney’s explanation cr edible. The

attorney had prin ted the letter from

his computer, and he ha d taken the

defendant’s case without any hope

of payment. The cou rt found that

the attorney commi tted miscon-

duct before the co urt with intent

to obstruct the pro ceedings. The

court also fou nd the timing suspect

because the attorney had mentioned

o the record that he wou ld appreci-

ate more time and mig ht seek a con-

tinuance. The co urt indicated it would

not grant a continuance because the

attorney had plenty of opportunity

to notify the cour t and did not do so

until after the dir ect examination of

the witness.

The trial court f ound that the attor-

ney had violated Pe nnsylvania Rule

of Professional Conduct 1.7, which

prohibits the rep resentation of a cli-

ent if there is a signi f‌icant risk that

the representati on will be materially

limited by the lawyer ’s responsibiliti es

to another client , a former client, or a

third person, o r by a personal inter-

est of the lawyer. The cour t empha-

sized this point when i t questioned

the lawyer at the conte mpt hearing:

“You have knowledge of [the witn ess]

that makes it hard to cross- examine

her at this time. Is [th e witness] going

to be given a fair shot? A re you going

to use the things she tol d you to get

a leg up for [the defen dant]? That’s

why we never proceed this way, so

that those peopl e who come in here

can believe that the co urt system

is fair and workin g to the best of its

ability on thei r behalf.”

The trial court f‌i ned the attorney

$4,847, the cost of the p roceed-

ings, and the S uperior Court of

Pennsylvania armed.

Litigation Section leaders agree

that the attorney ’s conduct imp li-

cated the ethics ru les. “Thecourt

elected not to refer [th e lawyer] to

the bar, but it could have base d on

Rules 3.3 a nd 8.4,” explains John M .

Barkett, Miam i, FL, cochair of the

Section’s Ethics & P rofessionalism

Committee. “ Model Rule 3.3 require s

By Katherine G. Vazquez, Litig ation News Contributing Editor

candor to the trib unal,” Barkett con-

tinues.“From th e f‌indings made, the

attorney was not bei ng candid. You

never want to put yourse lf in a posi-

tion where you are sayin g something

to a court that is not tru e.” Rule 8.4

further requires the maintenance

of the integrity of the p rofession by

requiring an attorney to avoid profes-

sional misconduct, such as engaging

in dishonest y, fraud, or dece it.

An attorney shoul d be honest

with the court from t he beginning.

“Lawyers who f‌i nd themselves in sim-

ilar situations sh ouldstop, consider

whether they may have breached

any ethical oblig ations, and, if so,

exercise candor. In the c ase of legal

ethics, two (or three or fo ur) wrongs

do not make a right, a nd the attor-

ney’s best option is to co me clean

before his reputa tion is irrepara-

bly dirtied,” a dvises Margaret M.

Toohey, Cleveland, OH, me mber of

the Section’s Ethic s & Professionalism

Committee.

RESOURCES

Greg ory R. Hanthorn , “When Breaches of

Professionalism Become Sanctionable,”

Ethics & Professionalism (Feb. 5, 2014).

Marg aret M. Toohey, “Attorney

Professiona lism: Ever More Import ant

in the Fake News Era,” Et hics &

Professionalism (Mar. 19, 201 9).

Digital versio ns of all Ethics stories,

including links to resources and

authorities, a re available at https://bit.l y/

LN-ethics.

AMERICA N BAR ASSOCIATION SPRING 20 21 • VOL. 46 NO. 3 | 7

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

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