By Matt Masich, LAW WEEK COLORADO
DENVER — Colorado lawyers are on notice to mind their manners in the courtroom.
Rude behavior such as rolling the eyes, making sarcastic remarks and interrupting the judge clearly violates the rules of etiquette — but the state’s attorney regulators say it also violates the Colorado Rules of Professional Conduct and is possible grounds for sanctions.
Attorney Mark E. Brennan knows this all too well. Last year, the state Office of Attorney Regulation Counsel filed a complaint against Brennan over his behavior while representing the plaintiff in a 2006 civil trial in the U.S. District Court for Colorado.
The complaint alleges that Brennan’s unconcealed dislike for opposing counsel and witnesses, expressed through snide comments and negative facial expressions — and his verbal sparring with the judge, Robert Blackburn, broke two rules: One forbidding “conduct intended to disrupt a tribunal” and one forbidding “conduct that is prejudicial to the administration of justice.”
The Office of Attorney Regulation Counsel, or OARC, wrote in its complaint that Brennan’s conduct was “designed to aggravate Judge Blackburn.” Brennan does concede there was tension between himself and Blackburn.
“The reason he and I butted heads was that it became more and more apparent as the trial went on that he was doing everything he could to constrain me from making my case. I deeply resented the fact he was going out of his way to help the city,” Brennan said.
This week, Brennan will appear before a three-person panel, including Presiding Disciplinary Judge William Lucero. The trio will decide whether his lapses in congeniality warrant disciplinary action, which can range from public censure to disbarment.
The disciplinary hearing will be the final act in a tumultuous last few years for Brennan. In June 2006, the Centennial-based solo practitioner won an age discrimination lawsuit and a $1.2 million judgment for his client in a suit against the City and County of Denver. In September 2007, Blackburn vacated the judgment and ordered a new trial because he found Brennan committed misconduct. (Denver eventually settled with Brennan’s client for $850,000 in December 2008). OARC initiated its investigation shortly after Blackburn issued his order for a new trial, in which the judge was scathing in his criticism of Brennan.
Clash of personalities
The complaint against Brennan can be seen as the result of the clash of personalities that occurred when the swaggering attorney and the hyper-decorous judge met in court.
Brennan stands 6’3”, with a commanding bass voice to match an imposing physical presence. He has strong opinions and doesn’t hesitate to share them.
That quality, combined with a seemingly innate distrust of authority and an irreverent, occasionally mocking, sense of humor, can make him seem aggressive or confrontational. Outside the courtroom, he makes liberal use of profanities, particularly when discussing the corruption he sees among “the leaders of the bar.”
An Indiana native, Brennan received his law degree from Stanford Law School in 1983 (he points out he was also accepted at other prestigious schools) and has practiced as a labor and employment lawyer for most of his career.
In solo practice for over a decade, he takes special pride in representing the little guy in suits against large organizations. This led him to take on the case of William Cadorna, a former Denver firefighter who brought an age discrimination suit against the City and County of Denver.
In 2006, the case went to trial in federal court before Judge Blackburn, a 1974 graduate of the University of Colorado School of Law. Blackburn was born in Lakewood, but lived much of his life in Las Animas, Colo. He has served as a U.S. district judge since 2002 and before that spent 14 years as a state district judge in Colorado’s 16th Judicial District.
Among lawyers who practice in Colorado’s federal trial court, Blackburn is known for his immense vocabulary. In his writing and speech, he not-infrequently uses words so unusual as to baffle all but the most learned lexicographer. In the courtroom, he maintains tight control over proceedings.
On the ratings Website robingroom.com — which calls itself the place “where judges are judged” — Blackburn scored a better numerical rating than most other judges in the district. The written comments on the site are a mixed-bag, perhaps indicating two sides to Blackburn’s judicial persona. Some of the anonymous posters praised his courtroom demeanor.
“He is fair, respectful, and kind to each and every person who steps foot into his courtroom,” wrote one person.
Others took him to task for his perceived imperiousness. One poster called him a “pedantic martinet with deep-seated issues and barely-concealed hostility toward plaintiffs.”
Wrestling control of the court
From day one of the eight-day Cadorna v. The City and County of Denver trial, Brennan and Blackburn seemed to get on each others’ nerves. Blackburn regularly reprimanded Brennan for continuing to question witnesses after opposing counsel made an objection and before the judge could rule on it.
Blackburn also took exception to the sarcastic editorial comments Brennan would interject while examining witnesses. Blackburn terminated Brennan’s cross-examination when the attorney remarked, “There is a straight answer” after drawing a response from an evasive witness.
Blackburn also claimed that Brennan was trying to bully him by interrupting and trying to get in the last word. After several warnings, he found Brennan in contempt of court after another interruption.
Despite the friction with the judge, Brennan won the case, and the jury agreed that his client was unjustly fired from the Denver Fire Department on false pretexts and denied reinstatement because he was over 50 years old. The $1.2 million in damages was one of the largest verdicts won in a suit against Denver — until Blackburn threw it out 15 months later.
In his order for a new trial for the Cadorna suit, Blackburn wrote that Brennan’s behavior was so egregious as to prejudice the jury and prevent a fair trial.
“Such disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench,” Blackburn said.
The judge theorized that Brennan intentionally flouted his authority in an effort to “to cast the court before the jury as bad tempered and nitpicking and himself as the victim of my supposed personal displeasure with him.”
Blackburn said that Brennan “successfully converted the courtroom into his bully pulpit,” wresting control away from the judge. The judge further claimed that the jury’s “verdict was the result of impermissible passion and prejudice inflamed by Mr. Brennan’s unacceptable trial tactics.”
‘Just trying to prove his point’
The issues raised in Blackburn’s order form the basis for OARC’s complaint against Brennan. In his response to the complaint, Brennan lambasted Blackburn’s new trial order.
“Judge Blackburn appears far more concerned with enforcing rules of etiquette than federal law,” Brennan wrote.
Beside the items mentioned in Blackburn’s order, the OARC complaint also mentioned other misconduct Brennan committed during the trial, such as calling an opposing lawyer a “little f—ing weasel” outside the courtroom.
In an interview with Law Week, and in his response to the complaint, Brennan readily admitted to doing this, but said it was irrelevant as it occurred outside the jury’s presence.
During its investigation, Office of Attorney Regulation Counsel representatives interviewed seven of the eight Cadorna jurors. According to notes taken by the investigator, none of them found Brennan to be abusive or disruptive during the trial. One juror reported that Brennan was “[n]ot trying to disrupt — just trying to prove his point.” When another juror was asked if Brennan was abusive or obstreperous, he answered, “Not at all!”
Curiously, the juror interviews are not being included in the regulation counsel’s formal complaint – and none of them have been asked to testify at the disciplinary hearing. Brennan, meanwhile, is forbidden by the federal court from subpoenaing them. The jury foreman did agree to give an official deposition for the OARC case in which she said Brennan was passionate and occasionally smart-alecky, but never intentionally disruptive.
Brennan is convinced that both Blackburn and regulation counsel went after him as a favor to the Denver city attorney’s office, initiating the disciplinary proceeding against him to serve as a warning to other lawyers who would take on the City and County of Denver.
“I think there are a whole lot of deep psychological levels at which [Blackburn] felt the need to bring me down,” Brennan said. “I think he enjoyed doing it, even though the real motivation was something much more concrete and involved some kind of back-scratching between a big Republican contributor and the city of Denver.”
For his part, Attorney Regulation Counsel John Gleason said such speculation isn’t worthy of response.
Brennan’s case is remarkable for a few reasons. It’s rare for a disciplinary case to go all the way to hearing. Since 2000, the regulation counsel has received an average of a little more than 4,400 complaints a year, which result in about 56 formal complaints. Of these, around 18 a year go to trial before the presiding disciplinary judge. Most end with a conditional admission from the attorney — essentially a plea bargain.
Brennan, who is representing himself in the two-day proceedings this week, is also notable for the colorful language he uses in assessing OARC’s case against him: In interviews he refers to the “pusillanimous Judge Blackburn;” calls the case against him an “unethical witch hunt;” makes references to Soviet show trials; and alludes to “the craven apparatchiks who control the legal establishment in Colorado.”
The disciplinary hearing is being held in Denver District Court. The severity of the sanctions against Brennan – or the possible dismissal of charges – will help show where Colorado draws the line between bad etiquette and misconduct.
Distributed by Colorado Capitol Reporters