By Andrew A. Servais
It was recently reported the Court in Barden, et al. v. Johnson & Johnson (New Jersey Superior Court, Middlesex County Case Number MID-L-1809-17) struck from the record the closing argument of counsel for Johnson & Johnson in a case alleging asbestos in the company’s talcum powder caused mesothelioma in the plaintiffs’ stomach linings. http://www.abajournal.com/news/article/judge-strikes-lawyers-entire-closing-for-jj-in-case-alleging-talcum-powder-caused-mesothelioma.
According to the report, defense counsel told the jury, among other things, that evidence of the connection between talcum powder and mesothelioma was evidence that had been “created.” Given the potential exposure in the thousands of related lawsuits, including a $4.7 billion jury award in St. Louis, Missouri, all attorneys must strictly follow their obligations to tribunals, opposing parties and opposing counsel.
The nearly one year old New Rules of Professional Conduct are replete with prohibitions on violations of motions in limine orders and the type of conduct and statements which are not only prohibited in closing statements but apply to attorneys’ conduct in general including:
“Rule 3.3 Candor Toward the Tribunal” providing in part:
“(a) A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;”
“Rule 3.4 Fairness to Opposing Party and Counsel” providing in part:
“A Lawyer shall not:
(f) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; or
(g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.”
“Rule 8.4 Misconduct” providing in part:
“It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;”
But, these obligations for California attorneys are by no means new. Indeed, the Evidence Code, Courts and the prior Rules of Professional Conduct have established impermissible closing arguments for several decades. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796 [misconduct to “make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel’s motives or character” or implying that the Court endorses one party’s allegations]; Hansen v Warco Steel Corp. (1965) 237 Cal.App.2d 870, 877 [misconduct to argue the importance of a court-excluded document and asking jury to draw negative inferences because it wasn’t admitted in evidence]; Evid. Code §355 [“When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”]; Malkasian v. Irwin (1964) 61 Cal.2d 738, 747 [[“[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client’s case, he [or she] may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.”]; Brokopp v Ford Motor Co. (1977) 71 Cal.App.3d 841, 862 [misconduct to argue facts not in evidence or asserting as fact matters within counsel’s personal knowledge]; People v Roberts (1966) 65 Cal.2d 514, 520, modified on another point in In re Roberts (1970) 2 Cal.3d 892 [Misconduct for counsel to express a personal belief in the credibility of a witness]; Beagle v Vasold (1966) 65 Cal.2d 166, 182 fn. 11 [misconduct to violate the “golden rule” and request the jurors place themselves in the “plaintiff’s shoes.”])
Whether billions of dollars or no dollars are at issue at trial, violating these prohibitions has severe consequences including Court sanctions and/or State Bar discipline because the violations not only harm the profession in the legal community, but worse, harms the profession to the very public which attorneys commit themselves to serve.
Andrew A. Servais, Wingert Grebing Brubaker & Juskie LLP.
This article was originally published on the SDCBA website. Click here to view.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**