Mark Brennan: He's loud, he's physical, he's profane. But does that make him a bad lawyer?
It began with Presiding Disciplinary Judge William Lucero slapping attorney Mark Brennan with two contempt citations. It ended with Brennan leaning into opposing counsel Kim Ikeler, moving him bodily away from the podium and calling him "a little piece of shit." In a little-used courtroom in the Denver City and County Building, the combative Brennan has been fighting for his professional life -- and, perhaps, making the case for the opposition that he's every bit the legal terror they claim he is.
For the past three days, Lucero and two other members of a state disciplinary panel have been hearing testimony and considering whether Brennan's license to practice law should be suspended for "conduct intended to disrupt a tribunal" and "prejudicial to the administration of justice." The complaint against Brennan, a big man with a take-no-prisoners approach to litigation, stems from his conduct in a 2006 civil trial in federal court, during which he clashed frequently with Judge Robert E. Blackburn over procedural matters and had an angry confrontation in the hall with a defense attorney, whom he called a "fucking weasel." Brennan won an astonishing $1.2 million verdict for his client, William Cadorna, a former Denver firefighter claiming age discrimination. But the award was wiped out months later by Blackburn, who ordered a new trial because of Brennan's "boorish and unprofessional behavior."
As reported in my detailed account of that trial, "Blackburned," the judge maintained that Brennan's flamboyant trial tactics "inflamed" the jury into an unreasonable verdict. But jurors I interviewed insisted that they found in favor of Cadorna because it was clear that the city had fired him over a flimsy pretext -- the alleged theft of a cookbook -- after a lengthy campaign by fire officials to drive him out.
Cadorna ended up settling with the city for a tad less than his initial windfall ("Denver shells out $850,000 to settle costly cookbook case"). But his attorney remained on the hook with the state's Office of Attorney Regulation Counsel, leading to this week's donnybrook of a hearing.
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Brennan's supporters, including activist blogger Sean Harrington of knowyourcourts.com, have dubbed the proceeding a "show trial," pointing out that the panel's rulings have tended to favor the prosecution and prevented Brennan from putting on the witnesses and evidence he wanted. In fact, the panel has treated the Cadorna jurors' views of Brennan's behavior, and whether it disrupted the trial or influenced the outcome, as all but irrelevant; the real issue seems to be whether Brennan's passionate advocacy betrayed a disdain for Judge Blackburn and the system of justice.
In many ways, the hearing became a demonstration of what the Cadorna jury found to admire in Brennan -- and his evident problems with judicial authority and the usual decorum. When Brennan took a cutting and mocking approach to questioning prosecution witnesses, Lucero instructed him to tone it down, then fined him, while a videographer from Colorado Law Week caught it all on video.
But Brennan insisted his missteps at the Cadorna trial amounted to "a hiccup, not a major faux pas ... Any good trial lawyer, in the same circumstances, would have done exactly what I did." Testifying in his own defense for more than five hours, Brennan did his best to scandalize the panel with his view of Blackburn's supposed efforts to sabotage his case: "The mere fact someone puts on judicial robes doesn't make them a saint. They get to be judges because they have friends in high places ... a lot of incompetent people get to be federal judges in this country."
Ikeler described Brennan as a rogue actor who "engaged in grandstanding, bombast and bullying" in an effort to win at all cost. "Theatrics are not necessary," he said. "The job can be done without them."
The physical confrontation between the two, late in the closing arguments at the end of the hearing, led to sheriff's deputies being summoned to the courtroom. ("This is not trial by combat," Judge Lucero complained.) But Brennan was allowed to finish his final bit of speechifying, during which he called on the panel to merely censure him rather than suspend his license over "nonsense." He argued that witnesses and attorneys who hide evidence and offer perjured testimony -- as, he insisted, happened in more than one instance during the Cadorna trial -- are much more deserving of punishment.
"Do you understand my rage at all, gentlemen?" he asked. "I'm a damn good lawyer, and I won the case fair and square ... Since when am I subject to being prosecuted for my personality?"
Brennan may have a point. Whatever one thinks of his sometimes over-the-top courtroom behavior, it's worth noting that neither Blackburn nor the city attorneys moved for a mistrial or seemed to have a serious problem with what Brennan did -- not until after the stunning verdict. And he now faces the loss of his license for what amounts to longwindedness and a lack of awe of judges -- while a district attorney who uses her office to interfere in a civil case gets what amounts to a slap on the wrist.
"The kind of things I am accused of doing are done in every courtroom in the country," Brennan insists.
Maybe. Maybe not. But there is plenty of rage for the panel to sort through while reaching a decision on what to do about one outrageous, outraged lawyer.
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