Lawyer no-show at hearing earns discipline
Lawyer no-show at hearing earns discipline
A lawyer who failed to show up at a criminal hearing after filing a motion to continue that hearing has been suspended for 10 days by the Supreme Court.
The lawyer, who was also publicly reprimanded, did not indicate in his motion that the state agreed with his motion, failed to set a time to hear his motion, and did not submit a copy of the motion to the presiding judge.
As a result, the judge traveled from another county to preside over the hearing, the defendant was transferred from jail to attend, and an assistant state attorney also attended the hearing that had to be postponed because the attorney failed to attend to represent the inmate.
“The judge testified before the [grievance] referee, without hesitation, that had [the attorney] appeared at the hearing and requested a continuance, the judge likely would have granted his request,” the court noted in its opinion. “The assistant state attorney also testified that she had no objection to [the attorney’s] request for a continuance. However, [the attorney] simply chose not to attend.”
The referee noted the attorney failed to make any personal attempt to contact the judge before the hearing, and consequently the judge reported the attorney to the Bar.
The attorney had been hired to represent the inmate in a sentencing rehearing mandated by the U.S. Supreme Court’s ruling in Graham v. Florida, 560 U.S. 48 (2010). The attorney received notice of the hearing nine days before it was scheduled, but indicated in his motion that he had previously been retained to prepare a petition for a writ of certiorari for another client.
The grievance referee recommended a public reprimand and the attorney argued that was not justified because the client ultimately suffered no harm, as the attorney at a later hearing successfully obtained a lesser sentence for the client, to the satisfaction of the client and his family. But the court agreed with the referee the attorney showed a lack of diligence in not properly seeking a continuance for the original hearing.
The court also said the attorney wasted resources for the criminal justice system because the original hearing required the presence of the judge, defendant, and assistant state attorney and accomplished nothing. It also said he should have known his continuance motion was not self-executing.
“[The attorney] had an obligation to appear at the hearing on his client’s behalf; his decision not to attend the hearing, regardless of the reason for doing so, is not acceptable,” the court said.
The justices agreed with the public reprimand, but also said the suspension was warranted because although the “misconduct was relatively minor and did not cause his client any actual harm, it was nonetheless harmful to the administration of justice and we conclude his actions warrant harsher discipline than a public reprimand.. . . We agree with the referee’s conclusion that [the attorney’s] actions were harmful to the legal system and that such conduct cannot be tolerated by an officer of the court.”
The court acted February 12 in case no. SC12-2724.
