Decorum in the dock: The top legal follies of 2009

Jacquie McNish

The legal profession stepped awkwardly into the future in 2009.

Rituals and practices long shrouded in secrecy crept into the public glare as technology and public pressure made increased transparency unavoidable. Television cameras rolled in Britain's new Supreme Court. Lawyers blogged. Regulators smacked down lawyers' digital tantrums. And ethics committees wrestled with Facebook.

It wasn't always pretty, it wasn't always perfect and sometimes it was just plain ridiculous. The future is stumbling toward a law firm, court or regulator near you. Here are your Legal Follies for 2009.

Beam Me Up Supremes

Britain cut centuries old ties that bound its highest court to the House of Lords this year by launching the country's first supreme court. The new Supreme Court of the United Kingdom got its own building in London, symbolically across the street from the Houses of Parliament, and a public relations strategy. Court hearings are filmed and a website gives court junkies something that was never before available: bios and pictures of the judges, summaries of pending cases and a “customer satisfaction” section.

Judicial wardrobes also got a makeover. Out are ermine-trimmed red robes, horsehair wigs and breeches. In are black robes with ornate gold brocade for formal occasions. For every-day court wear, judges get flowing black robes with two stripes of red velvet. Inevitably the modernism was too much for some. A Supreme Court judge, sniffed a Guardian fashion editor, “now just looks like the man who sells you tickets for the Star Trek Experience at the Las Vegas Hilton.”

To Blog or Not to Blog

Kristine Ann Peshek started a blog in 2007 to share her thoughts about her hobbies, health and career. She posted photographs, comments about bird watching and insights about her work. The problem with Ms. Peshek's blog, “The Bardd (sic) Before the Bar,” was that her musings were drawn from her case work as an assistant public defender in Winnebago County, Illinois. As first reported by the Legal Profession Blog, Ms. Peshek was hauled before a state disciplinary commission this year after it issued a complaint that she improperly revealed information that was “embarrassing or detrimental” to her clients.

Blogs cited in the complaint included: “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he's no snitch.'” In another entry she referred to one bencher as “Judge Clueless.” In a later post, Ms. Peshek denied she was revealing client secrets because some stories used pseudonyms and others were composite studies of various clients.

A report by the disciplinary committee said Ms. Peshek was terminated as a public defender, a job she had held for 19 years.

Florida lawyer Sean Conway didn't lose his job, but he was ordered by a state disciplinary commission to pay a $1,200 (U.S.) after the State Supreme Court earlier this year upheld a disciplinary ruling that called him offside for an entry on a local legal blog. After a Fort Lauderdale judge gave Mr. Conway only a week to prepare for a trial, he vented on the blog that she was an “evil, unfair witch.”

Mind Your Modern Manners

Transparency has come slowly to Canada's law societies. The self-regulatory bodies are slowly opening their doors to give the public access to disciplinary hearings and decisions. The last holdout was the Law Society of New Brunswick, which after a legal battle with a local newspaper, agreed a few months ago to open disciplinary hearings to the public.

The heightened transparency appears to have encouraged regulators to take a harder stand against uncivil behaviour. Some Canadian lawyers have been smacked down for rude e-mails and others for unsportsmanlike behaviour in court. A recent disciplinary case against Toronto lawyer Reid Rusonik offers some clues about the new boundaries of civility. An apparent disciple of the “go hard or go home” school of cross examination, Mr. Rusonik lost his temper in a 2006 criminal trial after a witness with a criminal history warned the lawyer that he might find “a noose around your neck.”

Court transcripts publicized by the Law Society of Upper Canada show Mr. Rusonik responded “Okay, tough guy, c'mon let's go.” The lawyer then called the witness names and challenged him to a fistfight outside. Police and court officers intervened and the presiding judge ordered a mistrial after the outburst.

A three-person tribunal of the Law Society agreed in November to suspend Mr. Rusonik for a week during the Christmas holidays and he must pay $1,500 to cover the hearings costs. During the hearing, Mr. Rusonik told the panel “I should have just sat down.”

The Lawsuit That Time Forgot

For all this talk about innovation and technology, justice can move like a turtle in Canada. Just ask Pablo Jiminez. He moved to Canada from Peru in 1991 in search of a better life, and for four years he lived the dream working in Ontario factories. His hopes were crushed in May, 1994, when a car in which he was a passenger became involved in a serious accident that left him with extensive internal and external injuries.

More than 15 years later, Mr. Jiminez is still looking for justice from an insurance company. Superior Court of Ontario Master D.E. Short was so dismayed by what he called a “legal nightmare” of delays, trial date fumbles, out-of-date documents, failed mediation and other legal hitches, that he despaired the case had become a Dickensian travesty.

In an endorsement released earlier this month, Master Short compares the Jiminez case to the hopeless plight of the fictional and unending litigation between Jarndyce and Jarndyce in Dickens' Bleak House . Quoting the book, the master said: “Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means.”

To pull Mr. Jiminez's case out of legal quicksand, Master Short ordered the case to be fast tracked as an urgent trial. “This Master is not going to permit these files to become any dustier. ... I intend to do whatever is required to make this case ‘go right' with a view to either seeing this case resolved without a trial or to ensuring that the plaintiff and the defendants have their ‘day in court' as promptly as is reasonably possible.”

Facebook No Friend Of Judges

It's no secret that the life of a judge can be monastic. Business and organizational ties have to be severed to avoid the appearance of conflict and socializing is typically limited to other judges and trusted friends. Turns out judges also have to watch their step on social networking sites.

Florida's judicial ethics committee was so concerned about the appearance of impropriety on online social fishbowls such as Facebook that it recommended judges not “friend” lawyers who may appear before them. “It reasonably conveys to others the impression that these lawyer ‘friends' are in a special position to influence the judge,” the committee said.

Judge Thomas McGrady, the chief of the sixth judicial circuit in Pinellas County, said the committee's decision underlines the need for judges to appear impartial. He said he does not have a Facebook page.

“If somebody's my friend,” he said, “I'll call them on the phone.”