Being classless, quirky, and controversial are not revolutionary character traits in the legal profession. None the less, I'm a bit giddy about Jack Thompson's recent disbarment. I can accept his opinion on the grounds of free speech. I am not okay with point blank refusal to follow necessary professional rules and procedures, and he has done so in a manner that seeks to impugn the basic principles of constitutional freedom and judicial fair play. He does, however, demonstrate one of the greatest flaws in our legal system. He is a case study of just how far an attorney can go in spite of ethical rules and procedures, and he acts as a good warning to anyone who wants to play the lawsuit game—there are horrible, horrible lawyers in the world who manage to keep their bar cards regardless of their abuse of the legal system.
Attorney Ethics
It seems like an oxymoron, especially with examples like JT in the limelight. However, attorneys are required to follow a code of professional ethics that are enforced by each state's bar. Although these codes vary slightly from state to state, they can generally be broken down as follows:
Duties to the Client: These include a duty of confidentiality, a duty to avoid conflicts of interest between current and/or former clients, the duty to provide competent counsel and exercise professional care, and fiduciary duties concerning client property. This is painting the rules with a very broad brush, as the duties to the client are tantamount. All attorneys are required under the rules to zealously advocate on behalf of their client, and most of the duties to the client exist to ensure this.
Duties to the Court: All attorneys are officers of the court, which occasionally puts them in conflict with the first rule of zealous advocacy on behalf of the client. In short, attorneys are required to comport themselves professionally and with dignity, and must at all times exercise candor and abide by the rules of the court and the judiciary. They must also act with candor and may under no circumstance perjure or commit fraud before the court, and they must take steps to exercise fairness to opposing parties.
Duties to the Legal Profession: This includes reporting malpractice of other attorneys, discouraging and reporting the unauthorized practice of law, reporting ones' self in certain circumstances, keeping the bar up to date on any criminal charges the attorney is brought up on, and otherwise complying with the rules of professional conduct even when the attorney is no longer practicing or no longer a member of the bar.
The unfortunate truth is that although all attorneys are required to abide by these rules, rules are only ever truly followed if they are enforced. The legal profession is self-regulated. Often attorneys don't want to point fingers at other attorneys for fear of future retaliation. Very often it is the case that large, prestigious firms commit multiple levels of fraud and malpractice but go unreported because they hold so much influence in the legal profession. And then there are those like Jack Thompson, who believe that their license to practice law is also a license to abuse the law by way of media exploitation. Once you give an attorney a soapbox, they are in a position to threaten others and they obtain leverage over their professional peers, which is difficult to counter.
The Crimes of Jack Thompson
In my personal opinion Jack Thompson is nuttier than squirrel poo. But there are a lot of quirky and very talented, committed, decent attorneys in the world who are fairly batty. Any profession that permits genius and free thought to flourish will cultivate a certain percentage of crazies. Jack Thompson being a complete nutter isn't that big of a deal. So what did he do wrong? Mostly, he failed to comport himself professionally, honestly, and in accord with the professional rules of responsibility.
1. Defaming, threatening, and abusing other attorneys and their families is a big no no. Attorneys are required to treat their professional peers at all times with respect and dignity during a judicial proceeding. Accusing other attorneys of being pornographers doesn't quite fit into that.
2.
Attorneys are Officers of the Court. In a Court of Law, the Judge makes the rules, and the attorneys are supposed to follow them. Insulting the judge is a bad idea. Attaching pornography to your memos is a REALLY bad idea. Very few attorneys have made the legal term "contempt of court" as vividly appropriate as Mr. JT.
3. If the opposing party has legal counsel, the attorney is not allowed to communicate with the other party outside of the presence of the party's counsel. This is a very big, important rule, based on the principles of conflicts of interest and creating an attorney-client relationship (i.e., giving advice) to someone who is in conflict with your client. Attorneys in litigation will often try to lure other attorneys into breaking this rule so as to get opposing counsel kicked off of a case (conflicts of interest is typically immediate grounds for an attorney's dismissal as counsel of record without informed written consent from all parties in conflict).
The litany of JT's crimes is fairly extensive, but they all tend to arise under the same general themes. He consistently disrespected the court and others in his profession, treating them with contempt and often accusing individual judges and opposing counsel of egregious offenses that could easily amount to defamation. He disregarded the rules of avoiding conflicts of interest. He disregarded the requirement of comporting himself with dignity in public, in the courtroom, and in his court filings. You can make "free speech" arguments until you're blue in the face, but the government is entitled to set reasonable and necessary rules when issuing licenses to practice law. JT broke those rules with remarkably flippant disregard, and he continues to demonstrate his defiance.
This is important: no one is entitled to have a license to practice law. A license is a privilege granted by the government. It is not a right. And even pro se parties (individuals who represent themselves) are required to act in accord with the rules of the Court. Failing to do so can lead to sanctions for contempt and civil and criminal liability.
What We Can Learn from Jack
The media is a very powerful tool. For an attorney with less than a perfect grip on reality, it is probably a very heady experience and one that gave JT an inflated sense of self worth. I don't know if he was ever a worthy and respectable attorney. I do know that at some point, he stopped acting in the best interest of his clients. He acted in his own self interest and he manipulated the cases he took to promote his own agenda. Of all of his crimes, this is probably the most egregious. The one thing we can learn is that he got away with this for a remarkably long time. Being controversial isn't a crime, but when it amounts to acting in complete disregard of one's duties it could easily render an attorney incompetent. If anything, Jack Thompson demonstrates that it is ALWAYS important to know who is representing and what they're promoting in your name and on your behalf.
On that note: Dear Jack Thompson- goodbye and good riddance.
