Are motions to censure opposing counsel used?

Question

Is it common, considered a good tactic, or even allowed, to move a court to censure – or even hold in contempt – the opposing counsel?

If one has a reasonable argument for why the opposing counsel is out of line, and the judge hasn't called them on it, it seems to me like it would almost always be a good tactic. And it seems like it could occur with some frequency when the opposing counsel is a criminal prosecutor, since their duty is to truth and justice, and it's a fine line to walk between being a principled advocate for justice and a competent adversary to a defendant.

But what is the reality? Are such motions allowed? Do judges take kindly to being encouraged to censure an officer of their court? Are there clear benefits or expected outcomes of such motions?

Also, would such motions succeed by appealing to the principles espoused by courts and legal professional associations? Or does a lawyer really have to substantially neglect their duty or abuse their position before a motion to censure will be entertained?

Answer 1

The reality is that it is almost never an acceptable tactic to use in any jurisdiction where I ever have/or currently do practice. The bar is relatively small no matter where you are; even in bigger cities. Your reputation is your most valuable asset and it would be crippled if this became your M.O., or was used in anything but the most rare and egregious situations (e.g. withholding evidence, lying to the judge, tampering with jury). Small violations (which are seemingly big in the heat of trial) happen every day and if you even suggested this it would come back on you more times than not. This is exponentially true in the criminal arena where the Judges and prosecutors interact on a daily basis and have formed collegial relationships. If you practice criminal law you often need to form good working relationships with the ADAs or AAGs since most cases get disposed of through negotiations with these very individuals.

I have been in situations where my colleagues and I discussed it, opined on how it would be appropriate, but in the end have never gone that far. One time things were so bad with opposing counsel on so many levels, I considered it; however, I was a newish lawyer and my mentor at the time told me that he had never seen anyone but a federal court judge issue a sanction and aside from that, had never even seen it requested by a lawyer in the local bar. And these were horribly bad violations of the rules of procedure, conduct unbecoming, etc. So, I would suggest avoiding this practice. My rule of thumb is that unless the offending practice is so egregious that one would be technically duty bound to report the conduct to the bar, it is not appropriate to ask for sanctions.