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Legally Speaking


Issue: February, 2006
Author: Mary B. Guthrie

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Executive Director's Report

Periodically, Bar associations adopt initiatives to encourage civility in the legal profession. Lawyers are encouraged to treat other lawyers and their clients with respect. However, I have not read many expressions of concern about attorneys treating judges in a disrespectful manner. Maybe the possibility of being charged with contempt keeps otherwise impolite attorneys in line.

However, this was not the case in Wyoming in 1884, when an attorney foolishly criticized the Territorial Supreme Court and was punished for his “scandalous, contemptuous and disgraceful statements.” The case in point, In re Accusation against Brown, 3 Wyo. 121, 4 P. 1085 (1884), involved Melvin Brown, an attorney admitted to practice before the Territorial Supreme Court. After Brown lost an appeal, he publicly criticized the justices, rather than suffering in private:

The accusation avers inter alia that the respondent, in the presence of divers witnesses, in the city of Cheyenne, in this territory, uttered of and concerning this court, and its decision of a certain cause, the following language: “It is a son of a bitch of a court, – one bribed and the other I don’t know what.” It is further alleged that said words were so spoken with intent to scandalize, traduce and bring into contempt and disgrace the court.

Brown admitted criticizing the Court, but he tried to take out some of the sting of his comments by claiming that he had uttered the phrase “son of a gun” rather than “son of a bitch.” While the Court was not swayed by his efforts to minimize his verbal conduct, the judges were especially bothered by the bribery accusation:

By his words spoken publicly, the respondent, with vile epithets, charged the court with the commission of the highest crime which a court can possibly commit, and yet it is not claimed that there was even the slightest ground for that charge.

It appears that Melvin (the Miscreant) Brown could have redeemed himself with the Court if he had merely apologized for his intemperate language, instead of suggesting that his comments were just offensive:

The plain duty of respondent was then to right the wrong as far as possible, and when confronted here with the groundless charge made by him to retract it with as much alacrity as it was uttered. He owed it to himself as well as to the court to be entirely frank, candid and truthful in the matter.

A simple apology might have rectified the situation. Because he did not retract his comment or show any kind of remorse, Brown was suspended from practicing in the Territorial Supreme Court and required to pay $83 in costs.

There are some obvious lessons that we can learn from this old case. First, one should be smart enough not to make injudicious remarks, especially about a court. Second, while everyone is capable of engaging in dumb behavior, one should face the issue in a direct manner and be “entirely frank, candid and truthful,” in order to avoid further trouble. (Doesn’t this sound like the kind of advice that your mother used to give?)

After I read In re Accusation against Brown, I was reminded of a story that my father told about an attorney from the northern part of the state who was very passionate about his cases. He often took unpopular cases that were weak on the law and the facts, but strong on social issues. When the Wyoming Supreme Court would issue an opinion contrary to his position, he would take out a big ad in the local paper, criticizing the Court for its decision. He was lucky that he did not suffer Melvin Brown’s fate.

In re Accusation against Brown is also interesting from a procedural aspect - from its caption to the legal basis for bringing the charge. The case was brought under English common law, because there was no statute that provided that a lawyer should not “bad-mouth” a court. The authority to rely on the common law was found in an obscure Wyoming Statute:

The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, . . . are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.

Comp. Laws, p. 193; Wyo. Stat. § 8-1-101.

Applying the common law, the Territorial Court held that an attorney had an obligation to “maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct towards the judges personally for their judicial acts.”

After establishing that the common law required attorneys to act in a respectful manner, the court turned to the Statute of 4 Henry IV, c. 18., which provided a draconian punishment for an attorney who did not behave appropriately:

And if any such attorney be hereafter found notoriously in any default of record or otherwise, he shall forswear the court and never after be received to make any suit in any court of the king. They that be good and virtuous and of good fame shall be received and sworn at the discretion of the justices, and, if they are notoriously in default, at discretion may be removed upon evidenced either or record of not of record.

It appears to me that Mr. Brown would not have gotten in trouble if he could have read Lynne Truss’ latest book, Talk to the Hand: The Bloody Rudeness of the World Today, or Six Good Reasons to Stay Home and Bolt the Door. The topic of the book is manners; its main point is that there is a current lack of and desperate need for civility, respect and good manners. Truss’ solution for bringing manners to the masses can be summarized as follows:

Rudeness is a moral issue and it always has been. The way people behave towards each other, even in minor things, is a measure of their value as human beings. Henry James wrote: “Three things in human life are important. The first is to be kind. The second is to be kind. And the third is to be kind.”

(Talk to the Hand, Gotham Press, 2005, at 196).

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