the Law, the Universe, and Everything 

Search

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

Yale University Press

ad-logo5.jpg

Our Podcast

Subscribe to Law Talk

Law-Rev-Forum-2.jpg

law-rev-contents2.jpg

Law-Prof-Blog-Census.jpg

Categories

Administrative Announcements
Administrative Law
Admiralty
Advertising
Agricultural Law
Anonymity
Antitrust
Architecture
Articles and Books
Bankruptcy
Behavioral Law and Economics
Bioethics
Blogging
Book Reviews
Capital Punishment
Civil Procedure
Civil Rights
Conferences
Constitutional Law
Consumer Protection Law
Contract Law & Beyond
Corporate Law
Criminal Law
Criminal Procedure
Culture
Current Events
Cyberlaw
DRM
Economic Analysis of Law
Education
Empirical Analysis of Law
Employment Law
Environmental Law
Family Law
Feminism and Gender
First Amendment
Food
Google & Search Engines
Health Law
History of Law
Humor
Immigration
Insurance Law
Intellectual Property
International & Comparative Law
Interviews
Jurisprudence
Law and Humanities
Law and Inequality
Law and Psychology
Law Practice
Law Professor Blogger Census
Law Rev (Boston College)
Law Rev (Boston University)
Law Rev (California)
Law Rev (Chicago)
Law Rev (Columbia)
Law Rev (Cornell)
Law Rev (Duke)
Law Rev (Emory)
Law Rev (Fordham)
Law Rev (Georgetown)
Law Rev (GW)
Law Rev (Harvard)
Law Rev (Illinois)
Law Rev (Indiana)
Law Rev (Michigan)
Law Rev (Minnesota)
Law Rev (Northwestern)
Law Rev (Notre Dame)
Law Rev (NYU)
Law Rev (Penn)
Law Rev (S Cal)
Law Rev (Stanford)
Law Rev (Texas)
Law Rev (UCLA)
Law Rev (Vanderbilt)
Law Rev (Virginia)
Law Rev (Wash U)
Law Rev (Yale)
Law Rev Contents
Law Rev Forum
Law School
Law School (Hiring & Laterals)
Law School (Law Reviews)
Law School (Rankings)
Law School (Scholarship)
Law School (Teaching)
Law Student Discussions
Law Talk
Legal Ethics
Legal Theory
Media Law
Movies & Television
Philosophy of Social Science
Politics
Privacy
Privacy (Consumer Privacy)
Privacy (Electronic Surveillance)
Privacy (Gossip & Shaming)
Privacy (ID Theft)
Privacy (Law Enforcement)
Privacy (Medical)
Privacy (National Security)
Property Law
Race
Religion
Reparations
Science Fiction
Securities
Social Network Websites
Sociology of Law
Supreme Court
Tax
Teaching
Technology
Tort Law
Web 2.0
Weird
Wiki
Wills, Trusts, and Estates

Recent Comments

Rob Huddleston on Is Litigating While Drunk A Crime? I Say Yes

Dan Filler on Is Litigating While Drunk A Crime? I Say Yes

PK on Is Litigating While Drunk A Crime? I Say Yes

anon on Is Litigating While Drunk A Crime? I Say Yes

anon on Is Litigating While Drunk A Crime? I Say Yes

PK on Is Litigating While Drunk A Crime? I Say Yes

Archives

May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
August 2005
July 2005
June 2005

 

« This Is My Domain, Well Everyone's Really: Google and Full Text Public Domain Books | Main | Above the Law: Welcome to the Blogosphere »

August 30, 2006

Is Litigating While Drunk A Crime? I Say Yes

posted by Dan Filler

Dave's video link about the drunk criminal defense lawyer has generated some interesting comments. Folks seem to feel that the judge (and presumably the state) have little criminal recourse against a defense attorney who attempts to represent a client (facing life in prison, no less) while intoxicated. I'm not sure I agree.

I think there were several possibilities here. First, the judge could probably have charged him with contempt of court. Under Nevada law (NRS 199.340) criminal contempt consists (among other things) of "disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority." Litigating while drunk seems to qualify. And in Nevada, a judge may be able to charge the crime herself - there may be no need for a DA to bring the charges.

The DA would probably be responsible for lodging other charges. The obvious one is public intoxication. I don't know for sure, but I would not assume that the lawyer's failure to blow a .08 in court has any particular signficance under a public intox statute. First off, this numeric standard relates to drunk driving; I doubt that it has any explicit relationsihp to public intoxication. Second, since he'd been in court for two hours before blowing the breathalyzer, it's possible to infer that he was intoxicated under the DUI standard for at least part of the time. (An expert can support that claim.)

Another possibility is DUI. Based on his own admission, he drove a motor vehicle earlier. Based on his breathalyzer, as well as his statements (and an accident where he left before police arrived), there is arguably probable cause to believe he committed DUI. Will the DA win at trial? Will his statements be suppressed? Interesting questions - but not ones that necessarily need an answer at the charging stage.

But I'd like to think about a final charge - some version of an attempted assault. In Nevada, assault consists of "intentionally placing another person in reasonable apprehension of immediate bodily harm." By intentionally attempting to represent a defendant while drunk, might the state argue that he made the defendant fear unjust incarceration, and its related harms? I know this is a stretch. (He would probably argue, for example, that he did not intend to put the defendant at risk.) And I am hesitant about criminalizing lawyer conduct like this for fear that it will deter lawyers from taking serious criminal cases. But it strikes me that the choice to represent people facing life - or worse, death - while drunk is more than a courtroom management problem. It's more than an "appearance of justice" problem.

It's definitely more than an uncomfortable moment for a lawyer. It's a crime.

Posted by Dan Filler at August 30, 2006 05:43 PM

Trackback Pings

TrackBack URL for this entry:
http://www.concurringopinions.com/movabletype/mt-tb.cgi/1241.

Comments

When I initially read you post I thought it was a satirical commentary on our society's silly need to criminalize all errors of judgment. Upon re-reading, I'm pretty sure my first impressions were wrong.

You seem to imply that the alcohol level necessary for public intoxication should be LOWER than that for drunken driving, but that's ridiculous. Slight reductions in reaction time create dangerous drivers, thus .08 is justified with respect to driving, but slightly lower reaction times present no public danger when the drinker is merely present in a public space. Thus, he should not be guilty of public intoxication.

Second, is there any evidence that a blood alcohol level of .075 would cause the average lawyer's performance to fall below the Strickland standard? Almost certainly not. Yet you claim a crime(!) has been committed. Under that standard, it would also be criminal for a lawyer to stay out late the night before a trial and not get an adequate amount of sleep, since being tired would also hinder a lawyer's performance about as much as a blood alcohol level of .075, especially if the lawyer's story is true and it is the remnants of alcohol consumed the night before.

As for you absurd assault theory, where is the IMMEDIATE bodily harm? Also, what about causation? If Clarence Darrow himself couldn't have the the defendant off, then what's the difference?

Posted by: PK at August 30, 2006 06:25 PM


Point PK!

Posted by: anon at August 31, 2006 09:39 AM


point PK!

Posted by: anon at August 31, 2006 09:44 AM


FYI, public intoxication is no longer a crime in Nevada. See Robinson v. State, 117 Nev. 97, 99 (2001).

Posted by: PK at August 31, 2006 12:11 PM


PK, it appears you're right about public intox in Nevada. More broadly, though, I agree with the view that society overcriminalizes conduct. But this same society under-sanctions seriously irresponsible and reckless criminal defense lawyering. Perhaps these two characteristics align: both lead to the incarceration of more people. In my view, a lawyer like this is a serious menace - potentially much more so than a shoplifter or small-time drug user.

Posted by: Dan Filler at August 31, 2006 03:54 PM


Dan -

This looks solidly like criminal contempt to me. At least, it would be here in Tennessee.

With no public intoxication in Nevada, the other two charges (DUI and some sort of assault charge) seem unrealistic.

Cheers,

Rob

Posted by: Rob Huddleston at September 1, 2006 12:55 PM


Post a comment




Remember Me?

(you may use HTML tags for style)

Authors

Daniel J. Solove

Website
Understanding Privacy

Kaimipono Wenger

Website
SSRN Page

Dave Hoffman

Website
SSRN Page

Nate Oman

Website
SSRN Page

Frank Pasquale

Website
SSRN Page

Deven Desai

Website
SSRN Page


Guests

William Birdthistle
Elaine Chiu
David Fontana
James Grimmelmann
Dan Kahan
Sam Kamin
Anita S. Krishnakumar
William McGeveran
Michael O'Shea






ad-logo3.jpg

blawg100_winner2.jpg

Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Michelle Anderson
Laura Appleman
Francesca Bignami
Jeremy Blumenthal
Bruce Boyden
Donald Braman
Al Brophy
Bill Burke-White
Scott Burris
Anupam Chander
Miriam Cherry
Jack Chin
Jennifer Collins
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Christine Haight Farley
Kim Ferzan
Dan Filler
Amanda Frost
Timothy Glynn
Rachel Godsil
Eric Goldman
Craig Green
Jeffrey Harrison
Erica Hashimoto
Laura Heymann
Christine Hurt
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Anita S. Krishnakumar
Greg Lastowka
Joseph Liu
Solangel Maldonado
Jason Mazzone
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Elizabeth Nowicki
Paul Ohm
Michael O'Shea
Rafael Pardo
Marcy Peek
Eduardo PeƱalver
Neil RIchards
Lori Ringhand
Alice Ristroph
Paul Secunda
Peter Smith
Charles Sullivan
Rick Swedloff
Steph Tai
Robert Tsai
Steve Vladeck
Sarah Waldeck
Melissa Waters
Alfred Yen
David Zaring
Timothy Zick
Jonathan Zittrain

Blogroll

Above the Law
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
Beltway Blogroll
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
Convictions
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
JD2B.com
Juris Novus
Jurisdynamics
Law and Letters
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian
Mirror of Justice
National Security Advisors
Opinio Juris
Point of Law
Political Theory Daily Review
PrawfsBlawg
ProfessorBainbridge.com
Property Prof
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog

Pajamas Media BlogRoll Member