Here’s a story that’s been bothering me recently: As our buddies at Virginia Lawyers Weekly reported, the Supreme Court of Virginia has issued a show cause order to a Winchester attorney, directing him to explain a comment that he made on the record.

The lawyer, William Crane, represented a sexually violent predator in a case involving two appeals. Finding himself back in front of the trial court, he tried to explain the Supreme Court’s treatment of an appellate issue.

This exchange ensued:

MR CRANE: The Court refused to consider the Fifth Amendment issue. They said there was enough besides that to go ahead an approve the findings.

THE COURT: They didn’t want to touch it?

MR. CRANE: Well, they just stuffed it. They didn’t have the guts to handle it.

As luck would have it, the transcript wound up in the record for a subsequent appeal. The Supreme Court evidently read the transcript and was not amused. Citing the Rules of Professional Conduct, it directed Crane to appear on September 16 to explain whether his comment demonstrates “a patent disregard for the Justices of this Court.”

Yikes.

Virginia Lawyer’s Weekly reports that this appears to be the third show cause order issued since 1987 for a lawyer’s behavior toward the Court. The first involved a lawyer who approached a sitting justice at a social function and told him, “I’m still pissed off at you, you a-hole.”

The second was the Taboada v. Daly Seven, 272 Va. 211, 636 S.E.2d 889 (2006) debacle, where a lawyer signed and filed a petition for rehearing, which employed “intemperate language” to “ridicule and deride the Court” and “express displeasure” with its opinion.

That’s putting in diplomatically. Here’s an excerpt from Taboada:

[The lawyer] made numerous assertions in the petition for rehearing regarding this Court’s opinion. [He] described this Court’s opinion as “irrational and discriminatory” and “irrational at its core.” He wrote that the Court’s opinion makes “an incredible assertion” and “mischaracterizes its prior case law.” [The lawyer] stated: “George Orwell’s fertile imagination could not supply a clearer distortion of the plain meaning of language to reach such an absurd result.” [He] argued in the petition that this Court’s opinion “demonstrates so graphically the absence of logic and common sense.” … [The lawyer] also included the following statement in the petition: “[I]f you attack the King, kill the King; otherwise, the King will kill you.”

 

Against that backdrop, the show cause order in this case seems harsh, for several reasons:

  • First, as Steve Emmert has pointed out, Crane’s comment was apparently made off-the-cuff at a hearing, in response to a question from the judge. It was an ill-considered answer to that question, to be sure. But it was not a statement in a brief that he wrote, edited, signed, and filed, as in Taboada; nor was it a profane rant against a judge in a social setting. It was just a dumb thing that Crane said in court. And it’s probably not even the dumbest thing I’ve ever heard anyone say in court. I don’t know Crane, but plenty of lawyers get nervous and flub a question from the bench.
  • Second, I may be misreading the transcript, but it seems like the judge invited Crane to comment. Crane had already told the trial court that the Supremes hadn’t addressed his Fifth Amendment issue. The trial court asked “They didn’t want to touch it?” That question put Crane–a criminal lawyer representing a client–in a tough spot.
  • Third, it’s hard to tell much from a cold transcript. But the trial judge had an opportunity to observe Crane’s demeanor, and he saw the whole interaction. It’s not apparent from the VLW story that he had any problem with the comment, or took any action against Crane as a result.
  • Fourth, if Crane’s comment warrants sanctions, then some of the nonsense I’ve posted here should probably get me disbarred.

What do you think? Am I being too sensitive here? It will be interesting to see how the Supremes handle this in September.