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Persuading by non-discrimination, an eased guard, and no butt-kissing

Jul 24, 2013 Persuading by non-discrimination, an eased guard, and no butt-kissing

Recently, I have had to re-examine my stereotyping of prosecutors, judges and police, with the following events:

A week ago, a Fairfax prosecutor with whom I get along with fine — we are able to disagree agreeably, at that — invited me to be his friend on Facebook. I never have been invited by a prosecutor to interact on social media (except for my former Public Defender colleague and friend Mitch, who switched states and sides several years ago), nor have I invited any to do so, except Mitch. The same goes with judges (except as below) and police (except for a Connecticut police officer who attended public school with me).

I wondered whether to accept his invitation. Some of my present and past clients are my Facebook friends, and I am fully comfortable with that. Am I creating unnecessary barriers between me and other people by having so hesitated with this Fairfax prosecutor?

Were it common for me to get together as friends with prosecutors, the Facebook invitation would have not provided me as much pause. However, the last time I ever sat down for lunch or anything else outside the courthouse with a prosecutor was over twenty years ago, when I joined prosecutors a few times for lunch before returning for courtroom battle against them, when a public defender lawyer, and another time soon thereafter for coffee after a court hearing against a likable assistant attorney general. I was of mixed minds doing so in the middle of the battle, but found them likable, and communications having fewer barriers as we got to know each other more as just people, rather than merely in our roles as criminal defense and prosecuting lawyers.

 I have had some enjoyable conversations with prosecutors in the courthouse, but the thought does not often cross my mind to offer to get together with them outside the courthouse.

One of my favorite local criminal defense lawyers paints prosecutors in starker terms: "They hide discovery from you that they are obligated to give you." Is that the situation with all prosecutors? Should I give prosecutors the benefit of the doubt in providing me discovery, or presume the worst? Even prosecutors and others who transgress deserve my compassion, just as all people do. But should I get together with them?

One of my favorite instructors at the 1994 National Criminal Defense College Trial Practice Institute mentioned a particular prosecutor in whom he had a romantic interest, that he would feel too awkward with his clients about going to dinner with her, so he did not.

After a day of thought, I accepted this Fairfax prosecutor’s Facebook invitation. I visited his page to see a few recent photos of two other prosecutors in his office having a good time with beer at a bar, just like plenty of other regular people do. 

Not long after, I received a Facebook and LinkedIn invitation from a Prince George’ County, Maryland, judge, whom I first met when he was in private practice over twenty years ago. He is one of my favorite judges to appear before. He remains dignified and cordial on the bench, unlike plenty of judges who get cranky, angry, and even downright nasty after being jaded by the job over the years. He has always been fair to me and my clients. I accepted both invitations. I went to his Facebook page to see that he has posted almost nothing, and instead has posts from other people there.  (UPDATE: A 2009 Florida Judicial Ethics Advisory Committee opinion says judges may not friend lawyers who appear before them, on social network sites. Pending my finding out how that opinion jibes with the jurisdictions where I practice, I have defriended this judge.)

Now I have a new law office in Fairfax. It’s a great space location-wise just across the street from the courthouse, and design-wise to have an impromptu happy hour from time to time. I would feel comfortable having any past and present client come to such a gathering, as well as any criminal defense lawyer I know. How would I feel about inviting prosecutors and judges? For my clients not to feel uncomfortable, would I not invite prosecutors and judges, or consider a separate gathering that included prosecutors and judges that did not include clients? How would I feel about excluding my clients, so many of whom I have enjoyed time with, and also several of whom have provided me their own great professional services?

What are the ethical and statutory rules about providing free food and drink to prosecutors and judges? I surmise I will find that when party nibbles and drinks are moderately-priced in total, that it is allowed.

Why invite prosecutors and judges at all? I would not do so to kiss butts. Never kiss butts, and not just because it gives the lips a foul odor. Because they started out as humans before they took on their roles as judges and prosecutors, just as I started out as a human before I became a lawyer. Some of them are likable. Do I avoid them socially because of their roles as prosecutors and judges? If they see me at my own home turf, will their own guards be down more in dealing with me, when they get to know me more as a whole person?

Will I be more effective for my own clients by lowering my own guard with prosecutors, police and judge, rather than stereotyping them? Of course. Will they let their guard down more with me when I let my guard down more with them? Of course. The magic mirror takes hold.

When I filter in my mind how open to be to a person depending on his or her role as prosecutor, judge, police or otherwise, I am not being consistent enough, possibly not honest enough, nor persuasive nor powerful enough. Looking beyond their roles is not easy, but is essential to do.

But where do we draw the line? I would not imagine kibitzing with an executioner, yet I stayed friends with my former public defender colleague Mitch after he became a prosecution lawyer advocating the affirmance of death sentences on appeal (but only because he was my friend before he advocated death sentences in his work). I would not break bread with a KKK grand wizard, but might need to do so if s/he were my criminal or First Amendment defense client, to help me truly relate to my client in order to help humanize him or her to judges, jurors and opposing lawyers.

But do I invite my clients and prosecutors to the same gathering? I doubt it. And my clients come first, always.

ADDENDUM: Wichita, Kansas, criminal defense lawyer Dan Monnat’s wife Grace made a good point about the necessity for a lawyer to be real and human, with positive energy at all times. Early on in their relationship, Grace told Monnat during a break in trial that "’there’s all of this dark energy on your side of the courtroom,’" because he was not "’completely being [himself]. usually a pretty positive, humorous person, but you’re not talking at all to the prosecutor when there’s breaks and that kind of thing.’" When Monnat told Grace that clients do not like their lawyers fraternizing with opposing lawyers, she urged him to tell his clients that he is going to talk to them, bringing positive energy back for the jury to see. Well said.

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