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Justices reprimand Milwaukee criminal defense attorney for court conduct

By: Jane Pribek//March 22, 2013//

Justices reprimand Milwaukee criminal defense attorney for court conduct

By: Jane Pribek//March 22, 2013//

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The Wisconsin Supreme Court has publicly reprimanded Milwaukee criminal defense attorney Eric Brittain for his conduct in two separate cases.

In the first case, Brittain injected personal and irrelevant information about himself during his opening statement, in violation of SCR 20:3.4(e), when he told the jury, “I want to talk about violence. And, well, what it is like to be in an environment where people yell and scream. And I know that environment because I grew up in one, and my mom was very erratic, very emotionally unstable.”

He additionally vouched for his client during his opening statement, violating SCR 20:3.4(e), when he put his hands on his client’s shoulders and told the jury, “I know . . . a brave man when I see one.”

Brittain also suggested in his opening statement that Waukesha County Judge J. Mac Davis was creating “obstacles” to the defense, which was conduct intended to disrupt a tribunal in violation of SCR 20:3.5(d).

Davis found Brittain in summary contempt of court and sanctioned him with a forfeiture of $50. Brittain appealed the contempt order, but the court of appeals affirmed.

In the second case, the Office of Lawyer Regulation’s complaint alleged that he engaged in abusive, belligerent and obstreperous conduct directed at Milwaukee County Judge Jean DiMotto.

Specifically, Brittain raised his voice and continued to attempt to address the court, disregarding DiMotto’s instructions that the case was done for the day, saying, “Your Honor, I believe your behavior is inappropriate.”

At a subsequent hearing, he again raised his voice at DiMotto, asked her to recuse herself and called her statements about his pattern of behavior “ridiculous.” He later denied shouting at her, but maintained her behaviors were “inappropriate,” suggesting that she suffered from a physical or health issue that could affect his client’s right to a fair trial.

Brittain and the OLR stipulated to his misconduct, and referee Richard Ninneman recommended the public reprimand as the appropriate sanction. State justices agreed in a 10-page per curiam opinion, additionally ordering him to pay $3,348 in costs.

Brittain was licensed to practice in 2003, and hasn’t been previously disciplined.

He could not be immediately reached for comment. His law firm website states the office has closed.

Milwaukee lawyer Ray Dall’Osto, who represents attorneys before the OLR and who practices in criminal defense, said a few years ago he wrote an amicus brief in a different case where a lawyer had used “intemperate language” in court, and it was characterized as disrupting the tribunal.

He argued the attorney needed to create an actual disruption to be sanctionable – not just engage in an unpleasant exchange with the judge.

“It’s always troubling to me when defense counsel in a criminal case, who’s probably under the gun anyway, has his advocacy limited,” he said. “You’re walking a tightrope:  You have to make a record when you think the court makes an inappropriate ruling, and sometimes it’s not clear whether you’ve crossed the line.”

Dall’Osto said in this case, a public reprimand was probably appropriate and he’s glad the sanction wasn’t more severe.

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