My Shingle

Why Is This Lawyer Representing Himself At A Disciplinary Proceeding?

by Carolyn Elefant on July 22, 2009 · 0 comments

in Ethics & Malpractice Issues

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IMPORTANT  – POST UPDATED HERE -The Other Side of the Story

By all accounts, Denver lawyer Mark Brennan was treated badly.  Last year, he won a verdict for his client in federal court, only to have it snatched away by the judge, as a sanction for Brennan’s inappropriate and outrageous conduct during the trial.  Though I haven’t seen the trial or transcript, I can’t imagine any level of conduct that would have warranted penalizing Brennan’s client and simultaneously exposing Brennan to potential malpractice liability for the forfeited verdict. 

Fortunately, Brennan’s client later settled the case with the City for $850,000.  But nearly two years later, Brennan is fighting ethics charges filed against him in connection with his conduct at the trial.  Thus far, a number of bloggers have sided with Brennan, agreeing with his characterization of the ethics proceedings as a "witch hunt."  But unfortunately, Brennan isn’t going to get much sympathy from the ethics committee because in this case, he has a fool for a client.

Inexplicably, Brennan is representing himself in this ethics matter, and that’s what’s going to bring him down.   Because any lawyer who is human is going to take ethics charges personally, and when that happens, the defense becomes less about the law and more about the lawyer.  Moreover, how much more effective would Brennan’s case have been if he’d had an advocate appearing on his behalf – perhaps a trusted colleague or a highly regarded lawyer in the community?  A lawyer (and maybe even an expert witness) could have shown that Brennan’s conduct at trial didn’t exceed the bounds of zealous representation and that the judge’s repeated sanctions lacked any legal basis.  A lawyer also would have kept Brennan in check and saved him from himself.  But by conducting himself as depicted on the video, Brennan essentially proved the other side’s case.

You can feel sympathy for Brennan if you want or rail about the injustice of a system that punishes dedicated advocates.  That’s fine.  But Brennan let his conduct jeopardize his client’s case, and now, he’s letting it interfere with his own.  I don’t call that courage or righteous "rage against the machine," as I’m sure Brennan believes.  It’s sheer stupidity.

[Final note - this is why I so emphatically believe that lawyers should have malpractice insurance: it covers the cost of representation in grievance proceedings so that you don't have to represent yourself.]

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