(This blog is about ridiculousness so I am using a stately stock gavel as the accompanying image.)
In my ethics nerd friend circles, we often discuss “those cases.” “Those cases” either involve attorney discipline or judges admonishing attorneys for allegedly bad behavior outside of the disciplinary cases; they’re not of great importance or precedential value by themselves. But they act as cautionary tales and generate extra publicity and discussion (at least in my ethics nerd friend circles) because they involve some combination of vulgarity, sex, “really, you have a law license and thought this was a good idea?” and/or general silliness.
In case you were wondering, this is Wisconsin’s “that case.” (I’m not going to append an NSFW warning to a court decision, but be warned it has most of the That Case factors.)
Recently, we’ve had have the Unicorn case, the Discovery Dispute Is Not An Emergency case, and, um, the Eat a Bowl case (that one is NSFW). The latter made for great 11 pm hotel bar discussion fodder at the last APRL conference. (Much of the ethics nerd bar is 12 years old sometimes.)
Anyway, we can add to that distinguished canon the Boom Shakalaka case.
Often, lawyers ask me if they need counsel to respond to an Office of Lawyer Regulation inquiry. While it’s in my pecuniary interest to say “yes of course every time, call me,” that’s not how I answer. I ask the lawyer how they feel about responding, if they know what to do, whether they’re freaked out and should outsource their freakout. It’s human nature to want to either completely avoid dealing with a complaint like that, or to immediately respond with a lot of words and documents and denials, but neither of those extremes are going to be productive. If you’re in this situation, try not to rely on instinct, and think things through instead.
Needless to say, if your instinct is to first fail to respond, and then when ordered to explain your failure, your instinct is to respond with
I “DID COMPLY, and DID PROVIDE AN ANSWER, and my answer was provided in a form of SILENCE. (BOOM SHAKALAKA).”
(caps apparently in original, link not) …then you should get counsel.
Prior to today I’d only known the disciplinary aspect of this case, but I looked into its genesis. The respondent attorney, who I will call Sylvester Stewart of Family Stone Law LLP (because I’m 12), submitted a complaint in federal court in the form of a screenplay. (Remember in law school when we could be docked half a grade for using the wrong margins in a memo? Seems cute now, doesn’t it?) Sadly, I could not find the screenplay in a brief online search, but more detail is here. (Unsolicited advice: If you really, really want to be creative in a filing, do it as an amicus and only if you’re really sure of your audience. Maybe if you are the underdog and have little to lose. My favorite not-quite-Federal-Rules-compliant amicus briefs are this comic and of course You Can’t Sue People for Being Mean to You, Bob.)
Anyway, the judge responded to the screenplay submitted on spec with a rejection letter, and warned him of potential Rule 11 sanctions and this matter was referred to Bar counsel. Bar counsel asked Sly, Esq. for information, he did not provide it and instead responded with onomatopoetic song lyrics, and was administratively suspended. A complaint was filed for his failure to follow the rules for administrative suspension and he was adjudged in contempt.
He tried to take it higher (see what I did there?) and the Massachusetts Supreme Judicial Court affirmed the administrative suspension and contempt filings.
I realize that as the resident scold it is my job to tell lawyers that they should stick to the rules and save their sarcasm for elsewhere. (That’s why I have a snark blog.) I do appreciate innovation, really I do, but if you’re planning a creative departure from the rules, perhaps run it by someone else with more objectivity first, lest you become a That Case.
But don’t run it by me. I’m going to shut you down. I’m on Team Buzzkill, remember? But you’ll find someone who will give you the go-ahead and do it anyway. Don’t say I didn’t warn you.