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.