*Michael Sean Quinn(See Below)
A lawyer in Virginia “Lv”was recently suspended from practice for six months and put on probation for two years as the result of his conduct at a CLE meeting (perhaps on in 2014).
For those readers who are not in the know: “CLE” stands for “Continuing Legal Education”; all state bars I know of require a specified number of hours per year, with some of them allocated to “legal ethics” (usually narrowly conceived). Some of these are conducted in large classes–usually a series of lectures given by different speakers and as panel discussions) in relatively big auditorium room, now usually with huge video screens–sometimes one each on several walls; some of it on large video screens and no live lecturers at all; some on video screens with the lecturer elsewhere–perhaps on vacation in Lilliputia;some of it purely online; and some of it–a very restricted portion–done by one’s self to one’s self alone.
Booze. It seems that Lv was inebriated, intoxicated, or what in the real world is called “very, very drunk.”
Sleeping. As a consequence of his condition, Lv was sleeping during part of the morning session. If he was sleeping sitting up or with his head bowed, that surely could not be classified as an ethics offense. I have spoken at CLEs many time and taught in law school now and then over many years, often on matters of legal ethics, and I know for a fact that boys and men either doze or out-and-out sleep at CLE functions, just has students in law school have done generation after generation. I have seen it and done it in both venues.
Sleeping upright is not a punishable offense. Sleeping with one’s head on the desk is a different matter, of course. There is a certain prominence, obviousness, and notice-invitationalness about it which might diminish the dignity of the legal profession, if observed by a non-lawyer.
Perhaps sleeping while lying down should also be explored. Of course, if the sleeping lawyer is right in front, say, or the stage or between the front row and the stage something is amiss. Everyone would worry that the person might be dead, badly injured, about to throw up, and so forth. Another early and distressing thought is that the sleeping lawyer has passed out from too much hooch. Sleeping in a fully reclined position on the floor at the back of the room is again a little different. Most people would not notice; some would regard it as interesting comedy; some would worry; and some would be offended, even outraged that a lawyer would do something like that, or let something like that happen, in a relatively public place.
Most people I know would be much more immediately distressed if the sleeper was a woman than a man. Why, in out anti-gender-discrimination age, I am not quite clear. A throw back to a bygone era, perhaps. (Something like that happened at one of the large firms for which I worked, but there was no reaction of concern, only keeping the incident quiet out of deference to the embarrassed lawyer who no longer worked for the firm.)
The assault upon dignity caused by CLE-sleeping, irrespective of origin and cause, might be particularly true if the speaker or panel member was a judge. S/he might feel ridiculed, sneered at, and held in contempt. However, I think that sleeping face down, or fact to the side, should be permitted, because it is a clear indication that the speaker may be performing inadequately, something which is often true anyway. Perhaps it should be restricted to the back rows or up against the back wall only. Sleeping lawyers could be expelled to the rear of the room.
These points can be clarified by comparing and contrasting sleeping at a CLE program with sleeping in a court room while court is going on. Sleeping or dozing why sitting upright is not likely to be classified as contempt. Sleeping with one’s hear resting on the back of the bench-pew ahead of one might well be frowned upon if it lasted more than a minute or two. A short stint in that position could easily be thought of, albeit mistaken for an incident of grief or acute anxiety. Sleeping while lying down on a bench-pew would probably not be tolerate even for a lawyer on a back bench.
Snoring. This is obviously a different matter. It is likely to be disturbing to those nearby, and in Lv’s case since he was snoring loudly, it might affect the entirety of those in attendance. I don’t think suspension is the appropriate and right penalty, however. Others nearby might have awakened him, schussed him, nudged or pushed him a bit, and so on. (As to the supposedly ethics offense of being-noisily-disturbing, Lv could defend on the ground of having sleep apnea, or the bar could deal with this problem by requiring that he sit in a separate chamber.
Snoring in court may be a different matter. Obviously, the snoring lawyer will be ordered to leave the court. I doubt s/he would be held in contempt, however, or that the conduct would be regarded as either contemptuous or contemptible, two quite different things, of course. If the snoring lawyer is a woman, as sexist as the following is, her plight would be regarded by the local bar as much more comical than if the snorer were male.
If the snoring lawyer could not re awakened to be led out, I would expect that medical personnel would be called. If he refused to leave, somehow, and returned to snoring, that might lead to a contempt citations.
When I was in high school at St. Andrews, in Tennessee, a school then known as a boys’ wrestling power house, second year algebra was taught after practice. Many of us were tired and sleepy. If we visibly began to doze off, the wrestling coach–a marvelous man–threw erasers at us. No doubt that could not be done today in high schools, given the criminal law, the culture, and various social norms. However, the idea is not out of the question for CLE lecturers and at least males attending the classes.
Of course there is the problem that there aren’t any erasers around any more, and neither baseballs nor tennis balls would do. (The fact that the wrestling coach sometimes threw used broken-off chalk sticks has some of the same problems.)
I suppose my reflections are even more absurd when it comes to a court room than a CLE hall. I can imagine a judge throwing a racket ball, but many lawyers cannot and the press would have a field day. It might even be contrary to the standing rules governing judicial conduct.
None of this need be discouraging, however, because we are after-all the legal profession, and social engineering is supposed to be at least at the margins of our many bailiwicks. Anthony Kronman, one of the great legal scholars of the 20th century has suggested that real excellence in the lawyer is to be a “lawyer/statesman.” Perhaps that idea might fit here.
Perhaps, applicants could sign a waiver about having racket balls thrown at them and an auditorium monitor could be awarded CLE credit for attending the sessions and throwing the balls pretty much accurately. (Of course, this position would have to be open to those of all genders, races, ethnic, ages, and so forth. Competence and skill would be the only requirements.)
If that approach were to be regarded as too undignified, CLE assistants could be used to circulate the room and wake up the sleeping or put a stop to the snoring. I remember we had hall monitors in elementary school, though I can’t remember exactly what they did. I spend a lot of time in the school hallway during the later part of elementary school, and they passed by many times. (Looking back as I write, I suspect there were Madams of the Junior League (or its equivalent) fulfilling their community service duties. They were good looking, of what I then saw as an imperial stance, expensively dressed, wearing hose, and well-shod with very expensive shoes. )
Shrieking. Lv is also reported to have shouted, screamed at, or yelled at the video during the afternoon session, though the sleeping and snoring incidents occurred during the morning session. Lv was said by the press to have been “led” from the room, after the afternoon incident. Notice the time of expulsion. Press pieces say neither that he was helped or escorted from the room nor that we was hauled or led from the room in cuffs or chains. The press gives no indication as to why he was yelling at the screen, what was on the screen at the time of the yelling, or what he yelled. Nor is there an indication as to whether there was a lecturer as well as a screen or what the lecturer was saying.
Pondering a lawyer’s yelling in a court room is not very difficult. A participating lawyer might get away with it once, if the matter before the court was hotly contested. A lawyer simply in the audience would be in at least minor trouble right off the bat.
Unquestionably the reporting in the press was inadequate. One supporting reason for this accusation may appear to be subtle (or better, obscure) to the general population. CLE course are seminars. A seminar is an advanced class in which there are discussions with the leader as the central point but also amongst those in attendance , e.g., graduate students, advanced undergraduates, and yes, a few types of law student. (An example: “Seminar on Part II only of Charles Taylor’s SOURCES OF THE SELF.”)
Opposite Point of View. Fairness requires that I note that Lv had a history of being a troublesome lawyer and a troubled person. He had been reprimanded by Virginia Bar in 2010 for the way he handled a case, and then again in 2011 after having served 10 days in jail for contempt of court. In the latter case Lv’s blood alcohol content was measured at .127 at the time he was in court. (Again, for the general public: this is a paradigm of contemptuous and contemptible conduct. Lawyers are officers of the court and the fiduciaries of their clients.) Of course, we don’t know what he did in court while being that drunk, but I suspect it was far more serious than sleeping, snoring, and even shouting. Some might even think the CLE incident was rather like a poor movie comedy.
Charitably (i.e., as an act of charity) in my judgment, Lv has been required to attend Lawyers Helping Lawyers Meetings and comply with all its requirements for 2 years. (Elsewhere LHL is called Lawyers Concerned for Lawyers.) I’m all for it. However, there is an interesting, hopefully hypothetical quasi-philosophical,constitutional law question about the use of such an organization. I know just a little about LCL and nothing about Virginia LHL, but to the extent that LHL resembles AA, as LCL certainly does, one must keep in mind the basic tenets of AA, and that is that one has lost one’s salvation from the addiction derives from “a belief that there is a Power greater than myself.” I myself am 100% in favor of AA principles, although they are under challenged by some medico-sociological types. Several have gotten to courts of record over many years to challenge such sentencing on First Amendment grounds, and the challengers have occasionally won. (I suppose Lv could argue, “I’m not a drunk. No! What I am is nutty as a fruit cake.” If I were Lv’s lawyer, I would not recommend this strategy. The word “backfire” is far to tepid to function as a description of what might happen.)
If the CLE offenses are taken simply as an indication of a continuing problem and not a serious offense, then VBA did a general and noble thing. Arguably, it simply used Lv’s embarrassing conduct as an excuse to try and help him along. Granted, there is a question about VBA’s complete candor in “justifying” its action. I wouldn’t really care if I were a Virginia lawyer or citizen, and I wish Lv God’s speed.
*Michael Sean Quinn
Law Office of Michael Sean Quinn
Quinn and Quinn
1300 West Lynn #208
Austin, Texas 78703
Originally posted on 04/09/2015 @ 6:11 pm