Georgia On My Mind
Hi, everyone. At long last, some original (if not exactly breaking) content. But I’ve gotten enough questions to pivot from my other busyness and try to answer (even though the answer keeps changing as I write this)—what the hell is going on in Atlanta?
(No, not this Atlanta matter.)
Earlier this week, Brian Steel, a defense lawyer for rapper Young Thug (who has been on trial for more than a year on racketeering and gang charges, see this explainer from Vulture) was held in contempt and ordered jailed. On Monday morning, in open court, Steel revealed to Judge Ural Glanville that he was aware of an ex parte meeting in chambers between Glanville, prosecutors, and a witness for the prosecution, which may have involved ”coercion” or “witness intimidation” per Steel.
For those of you reading this who are not lawyers, “ex parte” means “for one party,” and relevant here, it means that the judge and lawyers for one party held a meeting without the knowledge and participation of the other party.
Last week, the prosecution witness Kenneth Copeland (stage name Lil Woody) was subpoenaed to testify at the trial. Before he took the stand, his lawyer asserted his client’s Fifth Amendment right against self-incrimination. However, he had apparently already been granted immunity for his testimony, and the judge indicated he would be held in contempt (and he was). Monday’s ex parte meeting allegedly expanded on that, and Copeland testified (and per his own admission, lied) on Tuesday.
Problems abound here. Per Rule 2.9 of the the Canons of Judicial Conduct (adopted in Georgia as Ga. Code Jud. Cond. 2.9, and as part of the Wisconsin Code of Judicial Conduct at SCR 60.04(1)(g))M, these communications are permitted only in certain circumstances—typically for scheduling or emergencies. Even in those situations, the judge can only permit these communications if they reasonably believe that no party receives an advantage as a result of the ex parte communications, and the judge promptly notifies all other parties of the substance of the communications and allows a response.
Similarly, Model Rule 3.5(b) prohibits lawyers from engaging in ex parte communications during a proceeding, unless authorized to do so by law or court order. Georgia’s Rule is slightly broader and prohibits lawyers (whether or not they represent a client in the matter) from communicating ex parte with a judge, juror, prospective juror, or other official, unless permitted by law. Wisconsin ‘s SCR 20:3.5 also prohibits such conduct, and requires lawyers who make ex parte communications for scheduling purposes to promptly notify the opposing counsel or party.
At this point, I’m not aware of any law or order permitting this conversation, but I am also not aware that there wasn’t. I suppose we’ll find out in due course.
Even assuming, arguendo, that there was a legitimate reason for the ex parte meeting, I am unaware of anything that would render it secret. This meeting was with a witness who had already been sworn in, for that trial, and (Was something discussed in there potentially subject to Brady disclosure?) It does not appear that the judge ordered the meeting to be secret and there is no rule that would require secrecy; at the very least, the judge was almost certainly obligated to notify defense counsel of the substance of the meeting and give them a chance to respond.
That’s not what happened. Instead, when Steel disclosed his knowledge of the ex parte meeting, Glanville demanded that Steel reveal how he learned the information. Another lawyer demanded a transcript of the meeting, which Glanville denied. The judge threatened Steel with contempt, and he again declined to reveal his source based on privilege. The defense raised motions for mistrial due. Glanville eventually found Steel in criminal contempt and ordered him to spend 20 days in jail (on weekends for the next 10 weeks). That order was immediately appealed, and the appeals court has granted Steel’s emergency motion for bond, so he will not need to report to jail this weekend. However, on June 25, 2024, Judge Glanville has set an order to show cause hearing and is requiring the attendance of everyone who was in chambers (including the witness, prosecutors, and even security personnel) on Monday, June 10. He wants to know who leaked the fact and substance of the communication.
A question, here, is whether a lawyer (be it Steel, Copeland’s attorney Kayla Bumpus, or anyone else) may refuse to answer the judge’s questions about what they knew and when. Of course, it depends—generally, lawyers are required to cooperate with the judge and abide by court rules and orders. However, Rule 3.4 permits lawyers to openly refuse to obey based on an assertion that no valid obligation exists.
Beyond that, if an attorney is ordered (via subpoena or other compulsory process) to reveal documents or information related to the representation of a client, they can’t just fork over the stuff. Remember, confidentiality under Rule 1.6 is broader than privilege, and most information is presumptively confidential. If the client consents to disclosure, great. But if the client does not consent, the lawyer must assert all reasonable defenses to disclosure (including privilege) and seek to limit the demand on any reasonable ground, and may even need to go to a court of appeals. ABA Formal Opinion 473 has a good rundown of how to proceed. (The Opinion is silent as to whether a lawyer has to go to jail to preserve the privilege, but does suggest that if an appeal isn’t available or the client doesn’t pursue it, the lawyer can comply with an order.)
I will leave a discussion of the contempt mechanics to people more familiar with criminal procedure and Georgia law (the New York Times has some good, unfortunately paywalled, commentary on that). But this is, of course, a giant professional responsibility issue spotter.
