CHAPTER 2 - 2-5 CONDUCT IN COURT AND RELATED PROCEEDINGS

• Jurisdiction: United States

2-5 Conduct in Court and Related Proceedings

2-5:1 Disruptive Conduct

A lawyer shall not engage in conduct intended to disrupt a tribunal or a related pro-ceeding.⁹⁴ In In re Dodson a trial court found an attorney in contempt when he protested the imposition of a 60 year sentence on his client.⁹⁵ On writ of error, the Connecticut Supreme Court noted that

"(t)here can be little doubt that an attorney may be, and should be, zealous in his representation of a client and full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The attorney's right to be zealous, vigorous, persistent and complete in the representation of a client is not, however, unlimited. That representation must be within the bounds of the law. An attorney as an officer of the court should be held to a higher standard of courtroom conduct than a layman. As an officer of the court, he must "preserve and promote the efficient operation of our system of justice."⁹⁶

In one matter, a lawyer was disciplined for interrupting his opponent during a chambers proceeding with a hand gesture simulating male masturbation.⁹⁷ In another, discipline was imposed and upheld on appeal when an attorney either spoke or shouted an expletive and walked out of a worker's compensation hearing.⁹⁸ An attorney was disbarred for conduct that included a Rule 3.5 violation where she accused the court of gender bias.⁹⁹ An attorney was reprimanded for including improper statements in a motion that went beyond the bounds of zealous advocacy.¹⁰⁰

One judge found no violation of Rule 3.5 when a lawyer sent a probate judge a letter impugning his honesty and competence because there was neither a showing of intent on the part of the attorney to disrupt a proceeding nor proof that a proceeding was actually disrupted, holding that the rule involves "disruptive conduct either immediately before, during or after an official proceeding."¹⁰¹ "Related proceedings" under the rule include depositions and mediations.¹⁰² Much has been written and reported about lawyer antics in depositions and ancillary practice.¹⁰³ One attorney was arrested and prosecuted criminally when he assaulted a police officer during a deposition. After the criminal trial which resulted in a finding of breach of peace, the trial judge disbarred him for five years.¹⁰⁴ In Faile v. Zarich a judge entered an interlocutory order and imposed monetary sanctions where a lawyer exhibited a practice and pattern of speaking objections and coaching witnesses during depositions.¹⁰⁵ When the same lawyer again disrupted a deposition in a different case, the judge suspended her for 120 days after the court pointed out that she had been previously sanctioned five times for the same type of conduct over a 20-year period.¹⁰⁶

2-5:2 Reference to Inadmissible Matters

At trial, a lawyer may not allude to irrelevant matters or matters that will not be supported by evidence.¹⁰⁷ Nor may the lawyer assert personal knowledge of facts in the case unless the lawyer is testifying as a witness.¹⁰⁸ A lawyer may not state a personal opinion as the justness of the cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of a criminal accused.¹⁰⁹

For over a century, it has been the law in Connecticut that a lawyer may not make remarks in a court matter not supported by evidence. In Worden v. Gore-Meehan Co. the Supreme Court, quoting from the Code of Professional Ethics, noted that doing so "is unprofessional, and inconsistent with membership in the...