The Colorado Supreme Court's disciplinary judge has finally issued a ruling in the long-running saga of Mark Brennan, the pugnacious attorney who won a $1.2 million judgment against the City of Denver in 2006 -- only to see it thrown out by Judge Robert Blackburn, who denounced Brennan for "boorish and unprofessional behavior" during the case, the subject of my 2007 feature "Blackburned."
Presiding disciplinary judge William Lucero has suspended Brennan's license to practice law for a year, finding that he intentionally disrupted the trial and engaged in "obstreperous behavior" in violation of attorney rules of conduct.
The ruling isn't exactly surprising: Lucero slapped Brennan with two contempt citations during his disciplinary hearing last July, which Brennan denounced as a "kangaroo court." But the harshness of the punishment shows just how seriously the judicial establishment regards Brennan's defiance of a federal judge -- regardless of whether his conduct was as prejudicial to the verdict as Blackburn made it out to be.
"There is a point at which zealously representing a client does harm to our judicial system," Lucero wrote. (Read the entire opinion here.) "The Hearing Board believes this case demonstrates what can happen when an attorney abandons respect for the tribunal under the guise of zealous representation."
Brennan's client in the case was William Cadorna, a former Denver firefighter claiming age discrimination. The jury found he'd been fired over a flimsy pretext -- the alleged theft of a cookbook -- that was part of a campaign by fire officials to drive him out. (Cadorna evenutally settled with the city for $850,000.) Brennan clashed frequently with Blackburn and city attorneys during the trial, often out of the presence of the jury. Blackburn even accused Brennan of attempting to "bully" him -- a somewhat comical notion given Blackburn's ferocious reputation for running a tight ship.
But Lucero gave great weight to the testimony of a court reporter who felt threatened by Brennan. "Respondent is a big man, at least six feet tall, with a stocky build and voice that booms, especially when he is angry or agitated," Lucero noted. He had the opportunity to witness Brennan's demeanor firsthand during the disciplinary hearing and found him "bombastic, sarcastic, and contemptuous."
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In an e-mail to Westword, Brennan notes that he was greatly restricted in calling witnesses in his defense and that Lucero paid little heed to jurors' perceptions of the trial. "He discounted everything the jurors had to say or would have said, and gave great weight to Judge Blackburn's hearsay and the patently biased testimony of Blackburn's minions," he says. "What he calls 'clear and convincing' evidence is nothing of the sort."
Lucero's decision contains one intriguing concession. He found that Brennan's "misconduct interfered, rather than substantially interfered, with the trial." In fact, jurors interviewed by Westword insisted that they found in Cadorna's favor because of the overwhelming evidence that the city screwed up, not because (as Blackburn claimed) Brennan's theatrics had won them over.
While condemning Brennan for his tactics, Lucero's ruling makes no mention of the questionable aspects of the city's overkill investigation of Cadorna that Brennan claims demanded his "zealous" response. Lucero even blames Brennan for the jury's perception that Blackburn was biased in favor of the defense: "The fact that one of the jurors the People interviewed wondered whether the City had 'gotten to the judge' is evidence of injury he has caused."
Attorneys are disciplined for all sorts of reasons. The harshest remedies, suspension or disbarment, are usually reserved for miscreants who have slept with clients or stolen from them or committed other felonies. But as the Brennan case shows, failing to show proper respect and deference to an imperious judge can be a pretty serious offense, too.