Is Litigating While Drunk A Crime? I Say Yes

Dave’s video link about the drunk criminal defense lawyer has generated some interesting comments. Folks seem to feel that the judge (and presumably the state) have little criminal recourse against a defense attorney who attempts to represent a client (facing life in prison, no less) while intoxicated. I’m not sure I agree.

I think there were several possibilities here. First, the judge could probably have charged him with contempt of court. Under Nevada law (NRS 199.340) criminal contempt consists (among other things) of “disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority.” Litigating while drunk seems to qualify. And in Nevada, a judge may be able to charge the crime herself – there may be no need for a DA to bring the charges.

The DA would probably be responsible for lodging other charges. The obvious one is public intoxication. I don’t know for sure, but I would not assume that the lawyer’s failure to blow a .08 in court has any particular signficance under a public intox statute. First off, this numeric standard relates to drunk driving; I doubt that it has any explicit relationsihp to public intoxication. Second, since he’d been in court for two hours before blowing the breathalyzer, it’s possible to infer that he was intoxicated under the DUI standard for at least part of the time. (An expert can support that claim.)

Another possibility is DUI. Based on his own admission, he drove a motor vehicle earlier. Based on his breathalyzer, as well as his statements (and an accident where he left before police arrived), there is arguably probable cause to believe he committed DUI. Will the DA win at trial? Will his statements be suppressed? Interesting questions – but not ones that necessarily need an answer at the charging stage.

But I’d like to think about a final charge – some version of an attempted assault. In Nevada, assault consists of “intentionally placing another person in reasonable apprehension of immediate bodily harm.” By intentionally attempting to represent a defendant while drunk, might the state argue that he made the defendant fear unjust incarceration, and its related harms? I know this is a stretch. (He would probably argue, for example, that he did not intend to put the defendant at risk.) And I am hesitant about criminalizing lawyer conduct like this for fear that it will deter lawyers from taking serious criminal cases. But it strikes me that the choice to represent people facing life – or worse, death – while drunk is more than a courtroom management problem. It’s more than an “appearance of justice” problem.

It’s definitely more than an uncomfortable moment for a lawyer. It’s a crime.

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8 Responses

  1. PK says:

    When I initially read you post I thought it was a satirical commentary on our society’s silly need to criminalize all errors of judgment. Upon re-reading, I’m pretty sure my first impressions were wrong.

    You seem to imply that the alcohol level necessary for public intoxication should be LOWER than that for drunken driving, but that’s ridiculous. Slight reductions in reaction time create dangerous drivers, thus .08 is justified with respect to driving, but slightly lower reaction times present no public danger when the drinker is merely present in a public space. Thus, he should not be guilty of public intoxication.

    Second, is there any evidence that a blood alcohol level of .075 would cause the average lawyer’s performance to fall below the Strickland standard? Almost certainly not. Yet you claim a crime(!) has been committed. Under that standard, it would also be criminal for a lawyer to stay out late the night before a trial and not get an adequate amount of sleep, since being tired would also hinder a lawyer’s performance about as much as a blood alcohol level of .075, especially if the lawyer’s story is true and it is the remnants of alcohol consumed the night before.

    As for you absurd assault theory, where is the IMMEDIATE bodily harm? Also, what about causation? If Clarence Darrow himself couldn’t have the the defendant off, then what’s the difference?

  2. anon says:

    Point PK!

  3. anon says:

    point PK!

  4. PK says:

    FYI, public intoxication is no longer a crime in Nevada. See Robinson v. State, 117 Nev. 97, 99 (2001).

  5. Dan Filler says:

    PK, it appears you’re right about public intox in Nevada. More broadly, though, I agree with the view that society overcriminalizes conduct. But this same society under-sanctions seriously irresponsible and reckless criminal defense lawyering. Perhaps these two characteristics align: both lead to the incarceration of more people. In my view, a lawyer like this is a serious menace – potentially much more so than a shoplifter or small-time drug user.

  6. Dan –

    This looks solidly like criminal contempt to me. At least, it would be here in Tennessee.

    With no public intoxication in Nevada, the other two charges (DUI and some sort of assault charge) seem unrealistic.



  7. angelinjones says:

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  8. A person who is registering a .075 blood alcohol concentration level may be under the legal limit but they have no business practicing law while they are impaired. And they are definatly “impaired” at .075. It is a serious injustice to the person they are representing. At .075 your mental functioning is considerably deminished.

    What he did may not be a crime but it is definetly “criminal” to jeopordize his cleints future becasue of his gross irresponsibility.