Inside Attorney Misconduct: Power, Ethics, and the Cases That Shocked a Legal Community with Attorney Cynthia Payne

Episode Notes

Transcript

David Crum:

While he’s listening to cases, that’s the sound.

Brooke Mathieu:

That’s not where I thought that was going to

David Crum:

Go. I was going to ask you to guess, but you would never guess in a million years.

Brooke Mathieu:

I though you were going to say he was farting or something.

David Crum:

No, I wish he was farting. So I don’t know if they just pulled it. They pulled his robe off and aha. But that was the disclosure. Well, Brooke, we all love attorneys, at least most of us do, but they can sometimes be little bad boys and girls, and that’s what we’re going to be talking about today. Our topic is attorneys behaving badly. So I’d like to throw a question out to the listeners today. And the question is simply this. Is it ever ethical for an attorney to sleep with his or her client while they’re representing? And if it is ethical, should they do it anyway? All right. So while people are typing, furiously typing their answers, I will pose the same question to you, Brooke. Do you think an attorney can ethically sleep with his or her client?

Brooke Mathieu:

I think common sense answer would be no. However, I think a lot of people lack common sense and have a lot of lust. So I don’t know. You tell me, you’re the attorney. Have you behaved badly?

David Crum:

Well, some of these attorneys can be pretty sexy in their presentation. But before I get into my answer, what if the client wants to do? What if this is the client’s idea? Does that change your answer?

Brooke Mathieu:

No. I think that makes it more tempting and maybe because you’re both consenting adults. I just think it’s like any other. You wouldn’t do that with your doctor, right? You wouldn’t do that with your therapist. I think it’s frowned upon for all of these other professions. So why wouldn’t it be frowned upon for your attorney?That’s

David Crum:

A great question. Also, that just sounds like

Brooke Mathieu:

So messy.

David Crum:

Well, here’s the reality of it. Luckily, we have somebody who’s coming on the show today to talk about this exact question. And you’ll be surprised to know that until recently, there wasn’t a lot of rules about this. So when I was actively practicing, there was nothing wrong. Nothing wrong. And believe me, I had to many times say no, but I always said no. And here’s why I think in my opinion, and someone might have a different opinion about why this really isn’t a good idea. I think most people who come to you and where we see the predatory behavior is men who are representing women, and we see this a lot in family law cases. And family law cases is the area of law that really got the attention of the bars to finally address this question. But the client is in a really, really difficult situation.

It’s a difficult emotional situation. A lot of women have lost confidence in themselves because they’re getting divorced often after a long relationship and they just don’t know what to do. And so I just don’t ever think that’s a good idea. And I really don’t think that a person can even properly consent in that situation. So we’re going to go through all these scenarios in a little bit when we have attorney Cynthia Payne joining us in just a little bit.

Brooke Mathieu:

Yeah. I feel like it would definitely be a power imbalance just like with a lot of other professions. It’s just one person is vulnerable and one person holds all the power.

David Crum:

Yeah. And another thing that people may not be aware of is when we talk about power imbalances, and these aren’t attorneys, but they’re closely related and operate in the system, and that is police officers. And so we see a lot of police officers behaving badly when they shouldn’t be, when they should be the ones that are trusted. And so we’re going to talk about that a little bit. And then we’re also going to talk about attorneys that actually rise up and become judges and have all the power and some of the crazy things that they do. These are all important questions and that’s what we’re going to talk about today.

Well, I’m excited to welcome Attorney Cynthia Payne to the show today. Cynthia is the executive VP of US Legal Groups where she oversees about 40 attorneys in the divorce and family law world, criminal defense world, and estate planning. But Cynthia actually has been around for quite some time. Started out as a supervisor at the public defender’s office and then went into private practice as a criminal defense attorney. Came to work for US Legal Groups and then worked her way all the way up to the top. You’re a busy lady. So Cynthia, thank you so much for taking the time to talk to us today.

Cynthia Payne:

Thanks for having me. I’m looking forward to the conversation.

David Crum:

Well, when the topic came up, attorneys behaving badly. And that is what we’re talking about. I could not think of a better person to have on the show. So here’s the first question I want to start with. And I asked Brooke this. This is the question everybody wants to know, or at least I want to know. Is it ethical? Can an attorney, because we see it in the movies, we see it on the TV all the time. Is it actually ethical for an attorney to sleep with hers or her client? I mean, where do we even start with this topic, Cynthia?

Cynthia Payne:

Well, I do think that’s a question that people ask a lot. And for people of our generation, we grew up watching LA law and shows like that where I think some of the attorneys, that was their specialty within sleeping with their clients. But what’s interesting about the legal history of it is that there wasn’t actually a rule around it until the 2000s. So when we first started practicing in the ’90s, there wasn’t a specific rule regarding whether an attorney could sleep with their client. There were some rules around you can’t have a proprietary interest in litigation. And I guess some people could have called that a proprietary interest, but it didn’t specifically address sexual relations. Some states had created their own rules around this, but it wasn’t until 2002 that the ABA finally came up with a model rule that specifically addressed this.

David Crum:

Why do you think it took so long for the. Do you have any idea why it took so long for the legal community to deal with this issue?

Cynthia Payne:

I don’t know, other than I think that maybe there was just this myth surrounding attorneys. They’re officers of the court, they’ll do what they’re supposed to do. They’ll always choose to do the right thing, which of course you and I know that’s not true. So I don’t know if they just didn’t feel like they had to actually create a rule until it became super apparent that they needed to do that.

David Crum:

And how did that come about? Do you know?

Cynthia Payne:

Well, I think it was because there just had become so many cases that were coming before the states. And so because the state bars were starting to create their own rules, it’s interesting, sometimes the state bars end up sort of leading the way and then the ABA kind of brings up their and goes, “Well, I guess we should make a rule around this.” And then when the ABA finally made a rule around this, it didn’t address all the situations. And let me tell you why I say that. So I’m going to read you the rule specifically because I think it’s interesting. So this rule says a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the attorney-client relationship commenced. Okay? So that’s pretty black and white.

David Crum:

I know how to get around that already.

Cynthia Payne:

Heck yeah, you can get around that. It doesn’t talk about a prospective client. It doesn’t talk about former clients. It doesn’t talk about all of these little ways that people could try and get around it. And it hasn’t been amended in 24 years.

Brooke Mathieu:

Is this enforceable or is this just suggested as like how do these rules work? Will you get your license taken away?

Cynthia Payne:

So a lot of times what happens is the ABA will promulgate these model rules and they are not enforceable. But what they do is they serve as exactly what it sounds like, a model for the states to follow. So after they created this in 2002, now all but four or five states have rules around this, which are actually in their rules of professional ethics for the lawyers licensed in their states. So now, yes, you can get sanctioned for it. You can get brought up on a disciplinary board charge if you violate it.

David Crum:

So back in the day when I was practicing as a young, handsome attorney, are you telling me that you could just sleep with your client? You just have sex with your client during the middle of the case, murder case, divorce case, doesn’t matter. That was the rule. Till when? When did this change?

Cynthia Payne:

2002. So I’m going to date myself a little bit here because I have two examples of this. So the first example, actually I have three examples. The first example I’m going to give you was in the late 1990s, because that’s when I first started practicing. And this is before there was a rule in New Mexico, which has since adopted the model rule and before the ABA did their rule in 2002. So this is sort of when it was still the Wild West. When I was at the public defender’s office, there was a public defender there, a woman actually, who had a habit of finding all her boyfriends from her clients. So she would go to the jail or the prison. And this is a little side note for how things used to work in the jails. When I would go visit a client in the jail, it wasn’t like you see on TV, I didn’t get to go into a little room and talk to my client privately.

Basically, I would walk into a pod and my client would come out to talk to me and we would get surrounded by 30 guys who all wanted to ask me questions at the same time as my client. So this woman decided to take that as an opportunity to scope out the talent, find somebody that maybe she wanted to go out with. And she ended up dating a few of her clients and a few other people that way. But then again, this was the late ’90s, no rule against it. So no harm, no foul. None of them ever complained. So that’s one example.

David Crum:

What’s kind of the most extreme case you’ve seen of that on the criminal offense side?

Cynthia Payne:

The most extreme case I have seen with that actually occurred after the rules had changed. And that was an attorney who began a relationship with a client. Again, this was a woman. And I don’t know if it’s just the hammer gets brought down harder on women. I would suggest yes, but this was a woman. Thank you, Brooke. I agree. We’re going to talk about that later, I think. But this was a woman who began a relationship with a man that she was representing actually on a murder charge. And they started having an intimate relationship. This was discovered, I don’t know if it was by the court or by the district attorney’s office, but essentially, and I can’t remember now, the details escape me, if it had pled to something or if it had gone to trial and there had been a resolution that way. But when this came to light, essentially the client then moved to withdraw either the plea or to vacate the conviction, I can’t remember, based on ineffective assistance of counsel and basically said, “Well, I was sleeping with my lawyer and so that’s a problem.” And it was really embarrassing because then the client got new counsel and the attorney ended up having to testify in court as to this relationship that she had had with the client.

And the conviction did get vacated. And so he got a new trial out of the whole thing. But the disciplinary board at that point did discipline her and she received a deferred one-year suspension. So it was kind of a slap on the wrist, but it was still a mark on her record because of that.

David Crum:

Can you imagine sleeping with a murderer right after the murder? That’s pretty wild. Brooke, do you think this is just the ultimate bad boy attraction? What’s going on here?

Brooke Mathieu:

I definitely think – Sometimes

Cynthia Payne:

There are

Brooke Mathieu:

Reasons. Both men and women have bad boy, bad girl. That’s just what they’re into. Personally, I’m not. I would prefer to be stress-free, but some people like that.

David Crum:

Cynthia, so why would that be a conflict? I don’t understand the conflict of interest. Or why would that be ineffective assistance of counsel if she got them a plea and everybody was happy? What’s the thinking there?

Cynthia Payne:

I’m not sure why the court found it was a conflict of interest, but you can imagine the inherent conflict of interest. Are you advocating zealously and effectively and impartially if you have a vested interest in the outcome? Are you perhaps not behaving on the up and up with clients? Maybe there’s a question of candor to the tribunal if you are having to talk about client history or anything like that. I just have no idea. These were closed proceedings because it was a disciplinary board thing. So I don’t know why they found that, but they definitely found it in New Mexico’s equivalent of that rule. So yeah, it was because of the attorney-client relationship.

David Crum:

It would also be a really easy way to break up with your boyfriend, right? Just fucking plead him to some, get them out of your life.

Brooke Mathieu:

Seems

David Crum:

Extreme. That might be what they’re thinking. It kind of seems like a

Brooke Mathieu:

Lot of work.

David Crum:

It’s a lot of

Brooke Mathieu:

Work.

David Crum:

So is it a problem though? What if the client wants it? Can you waive it? What if the client

Cynthia Payne:

Wants it? But don’t you think that is the question for

David Crum:

The

Cynthia Payne:

Professional? I mean, you have a license for a reason.

David Crum:

It’s improper. It’s improper.

Brooke Mathieu:

Yeah, I kind of agree with Cynthia on that. That’s where you have to ask yourself ethical boundaries. And I do think it’s a little bit wild that it’s not just common knowledge because I feel like you said earlier, David, a lot of other professions, it’s just kind of the standard.

David Crum:

Yeah. Well, so one thing that I would see a lot when I was practicing is that this accusation would come out a lot in cases where it was always the guy on the other side, opposing party would say, “I think my wife is fucking her attorney.” They would say it all the time. And it turns out that sometimes the guy was right. And so what have you seen on those? The classic. And I guess the other question is whether you’ve seen any of these cases where they’re trading services. This is what I would get all the time. That’s how she’s paying her legal fee. It was almost always a female client with a male client. Have you seen anything like that in your career?

Cynthia Payne:

I know I’ve had two examples now of this happening with women, but I do think we need to be really cognizant of the gender imbalance and the power imbalance when you’re talking about it happening with female attorneys with male clients or male attorneys with female clients. And here’s a good example. A few years ago, we had a woman who came and retained the firm here in New Mexico and had previously had a very, very high profile divorce attorney represent her who had been very well known, had practiced for decades. And when she came in and her new attorney essentially said, “Why are you switching attorneys?” It turned out that her attorney had basically been sexually abusing her. And I say that, and I know that sounds harsh, but essentially it had gotten to a point where she was sleeping with him because she felt like she had to.

He was convincing her that if she did not continue to keep him as her attorney, everything was going to go terrible. She was going to lose all the money, she was going to lose the kids, all this kind of thing. But she couldn’t afford the fees. And so he essentially was like, “Well, you really need me to still be your attorney and I’ll continue to do that, but I need a little something in return.” And so she was traumatized basically at the point she came in and had hired one of our attorneys who by the way was a female and really needed counseling after all of this and frankly should have turned him into the bar, but didn’t. And this is where I think we can start to talk about some of the power imbalances in these things.

David Crum:

Yeah. I mean, if this is who I think it is, if this is who I think it is, that dude’s hourly rate, I would’ve been sleeping with him too. I mean, this dude is very, very pricey.

Brooke Mathieu:

It sounds like she was kind of backed into a corner on this situation. Was he notorious for doing that? Did that ever come out that he was doing that with other people or it just kind of got swept under the rug?

Cynthia Payne:

I had not heard that previously. I mean, I hadn’t. But I mean, we very much believed her when she said that this is what had happened to her.

David Crum:

I would guess that a lot of the same things apply to in sex crimes cases. There’s just a lot of shame around this, I would guess. This is why I think it would be rare for people to report it. I could see why she would tell us and would feel safe to do that, but I mean, it’s not a surprise to me that this isn’t what that might’ve

Brooke Mathieu:

Happened. I feel like a lot of people didn’t start feeling too comfortable with even coming out about that kind of stuff till relatively recently. So that makes total sense. I was just wondering, I guess, if he kept doing this or if any other cases had come out.

David Crum:

I don’t know. I didn’t hear anything. I didn’t

Cynthia Payne:

Hear anything else about it, but that to me is the kind of thing that would’ve been very, very quiet.

David Crum:

This is why I said it was shocking that it took till the 2000s to get this because you’re in such a position of authority and power and emotional distress for the client that it’s just not fair or ethical to think that someone could even agree even if they said they wanted to. It’s just a weird set of circumstances. Let’s talk about some of the more extreme things that you’ve seen coming up that you just couldn’t believe that an attorney was actually doing this. Give me a good story in that regard.

Cynthia Payne:

I think one thing to remember before you sort of really, or anytime you’re having these discussions about attorneys behaving badly is attorneys go to law school for three years. They pass a bar. They swear an oath to do all the things right. They’re an officer of the court. They’re not going to lie. They have a zealous duty to represent their client at all times. And I think these are things that are important to keep in the back of your mind as you listen to these stories. So I know the person you’re talking about. This is an individual who turns out he was here in New Mexico having been chased out of California for a bunch of ethical violations, which included lying in trying to get clients. He was essentially sending solicitations to people who’d been arrested in the jail, which when you send those, it clearly has to say like, “This is an attorney solicitation.” And instead he was saying, “These are attorney-client confidential communications.” So he was slipping it past basically the sheriff’s department and the jail authorities basically.

So you can’t do that. That’s a big no-no. See, he was already in trouble. So then he comes here and then New Mexico puts him on automatic probation because of the problems he was having there. And so then while this is all going on, he takes a case. He takes a case which has very ugly underlying facts. This is what this guy does. First, he charges him a fortune for the case. So he gets a bunch of fees paid in it. Then he has multiple conversations with his client, which he records in which he tells his client, “Hey, you’re going to get convicted. I think you should bribe the witnesses. And if you decide you want to do that, I’ll deliver the bribes for you.” Oh, and by the way, this could get me disbarred. He recorded the entire thing. So then he does it.

He does it. Oh, and by the way, in this recording, the client says, “Oh yeah, I’m totally guilty. I did this thing. And we’re going to convince everyone to lie about it.” So then he delivers the bribes. Then he goes and prepares affidavits saying everything we said is a lie and he has all of them sign it. Okay. No, no, you can’t do that. You cannot do that. So then a year goes by until the case finally goes to trial. At this point, the granddaughter has decided, “I’m going to testify. I’m going to go in and tell the truth about what happened. He needs to be convicted.” They go to trial. She gets on the stand and says, “Yes, he did this to me. This attorney then takes the false affidavits he prepared and uses them to impeach her.” He says, “But you said it didn’t happen.” All of these are huge, huge ethical violations.

Huge ethical violations. Did you know what she

Brooke Mathieu:

Had signed though?

Cynthia Payne:

She did because she was being intimidated. Yeah, that’s fair. So there are separate crimes for bribery and intimidation of witnesses, which this attorney was committing with the

David Crum:

Clients. So did the grandpa get acquitted?

Cynthia Payne:

He did get acquitted. He did get

David Crum:

Acquitted.

Cynthia Payne:

So then after he gets acquitted, the attorney says, “Hey, I think you client owe me more money. You didn’t pay me enough.” So he sues him. He sues the client to say, “You should give me more money.” So client counter sues him and says, “You’re stalking and harassing us and we’re going to get a restraining order against you.” So then in his response, he doesn’t say, “No, I’m not stalking you. It’s all this.” He says in writing, he says, “Well, I don’t owe them any relief because this client is guilty. He committed this crime. Not only did he commit this crime, he admitted to me that he has been molesting underage women since 1966.” And so I should prevail because he is a pedophile who’s been committing crimes for 50 years. So he conveyed –

David Crum:

That was in the paper. I remember seeing that

Cynthia Payne:

In the paper. It was in the paper. Yeah. So he conveyed confidential communications from his client in a court pleading admitting client’s guilt. I remember that. This is only the first

David Crum:

Crazy thing. He’s just getting started though. This isn’t even the good part. This isn’t even the good part. This

Brooke Mathieu:

Is not even the good part.

David Crum:

No, no.

Cynthia Payne:

No, no.

David Crum:

It’s the good part. No.

Cynthia Payne:

So in this case, he has three major violations. So this is his behaving badly. So one, he’s counseling his client to bribe the witnesses and he’s delivering the bribes himself. And then two, he’s constantly lying to the court, making misrepresentations over and over and over. They signed these affidavits and this is what they said. Now they’re lying. He knows that’s not true for all of the witnesses. And then the third part is he’s revealing client confidences. These problems are difficult.

Brooke Mathieu:

This sounds like the real life better call soul. This is a good

Cynthia Payne:

Dude. It’s crazy. It’s crazy.

David Crum:

But it does get worse.

Brooke Mathieu:

It gets worse.

Cynthia Payne:

It’s crazy.

David Crum:

Come on, this is the story that I wanted to stop. This is the one I wanted to talk about.

Cynthia Payne:

Okay. I’m sorry. I’m taking too long with all these lawyer stories because I think it’s fascinating. So this guy is lying to courts, bribing witnesses, revealing client confidences, stealing hundreds of thousands of dollars for his clients. And while all of this is going on, we had an office downtown and right across the street, right out my window, I could see this guy’s office. He was right across the street from us. And one day I go, “Hey, there’s a bunch of police officers and ambulances across the street. And why would that be? Because this guy shot someone in his office.”

Brooke Mathieu:

Someone that works with him, not a client.

Cynthia Payne:

Nope. Somebody that just came in the door. Some homeless guy that just came in and was like, “Hey, can I have some food or something?” And he told him to get out and the guy didn’t. So he shot him.

David Crum:

And his wife videotaped the whole thing. He’s like, “Are you getting this, babe?” He’s got a gun. I’ll never forget this. He’s got a gun. And the guy is standing right outside of his doorway and the attorney’s pointing it at him. And he’s like, “If you step through that door, you’re dead,” he says to the guy. And he says three times. So this guy is like – Crazy. I think he’s just swacked out on meth or something. And he puts his foot inside the door. And then the attorney shoots him. But I mean, do you think he was trying to shoot him in the leg? I think he was just nervous. And he shot him in the leg. I have no idea. And it’s not funny, but the guy was like, “Oh, motherfucker.” And he fell down and then Chip just shut the door. And it’s like, “Why didn’t you just shut the door to begin with?” So he was prosecuted for that.

But take a wild guess what happened. He ends up representing himself.

Cynthia Payne:

He represents himself in court. And so the judge puts all these parameters on it. You can’t talk about him being homeless. You can’t do this. You can’t do that. First thing he does is he publishes the guy’s mugshot that says busted across it to try and influence the jury. Because I guess if you’re homeless, you deserve to be shot in his mind. So yeah, he kept calling the victim a methed out lunatic instead of using his name. And then the methed out lunatic came in my office. So yeah, just not great. And he was acquitted. Yeah. The first one was a mistrial because he refused to follow court orders so many times that the judge finally did a mistrial, and then he was finally acquitted. But at that point, the state bar here said enough. He was permanently disbarred in 2017. And then once New Mexico disbarred him, he was disbarred in four other states.

And so then I did a little diggy-diggy to see where he is now. Now he apparently owns a bonding company.

David Crum:

Well, the other thing that we sometimes forget is that the other set of attorneys are the attorneys that make it to the bench and become judges. And you would think that those would be the best of the best. They wouldn’t be doing any of this kind of nonsense, but that’s not what we find. So talk a little bit about, can you start and talk a little bit about the chief justice, what his case was? And then I have one I want to tell because it’s just seriously unbelievable and not a lot of people have amazingly heard the story. But talk a little bit about what happened with our chief judge.

Cynthia Payne:

I’ll keep this one brief. This is actually, it makes me kind of sad, but this was the chief judge for the largest district here in New Mexico and was a good judge, had always been a good judge, very impartial to everyone, but had a little bit of a problem with the drugs and alcohol. So he gets arrested at a DWI checkpoint. And when he gets arrested, he has cocaine all over his shirt and a baggie in his lap. So he gets arrested and then he ends up pleading to DWI and possession of cocaine and resigns from the bench. But things do not get better for him. Four years later, the cops are breaking down his door in response to a noise complaint. And it turns out that he’s in there. He was 60 at the time with his 25-year-old girlfriend. And he ends up getting arrested on domestic violence, kidnapping, and aggravated battery on a household member.

Very intoxicated at the time. So that wasn’t great. But then at that same point in time, we just had a spate of judges getting arrested for DWIs. One guy that was driving a state-owned van, rolled it in a ditch, and then arrested, convicted of DWI, forced to resign. A court of appeals judge who got a DWI and was forced to resign. Another judge that was arrested on felony sexual offenses, acquitted, but forced to resign and had to say he would never hold another judicial position. I would note these are all men. So I love New Mexico, by the way.

Brooke Mathieu:

What do you think that is? Because I mean, I just don’t think it’s kind of common sense not to do some of these things anyways, but when you’re in such a high level of power or is that what it is? It’s just you have this power trip, an ego trip. Nothing can stop me. I don’t understand.

David Crum:

I think that’s

Brooke Mathieu:

Part of it.

David Crum:

I love New Mexico and I love practicing law there. It’s a very good place to practice, but it was like the wild west out there, man. It was like the judges are just – Maybe it’s

Brooke Mathieu:

Just New Mexico.

David Crum:

Wild. Maybe. I don’t know. No, it can’t be.

Cynthia Payne:

I think it’s a good question though, Brooke. I mean, I think what you. And even people who just watch it on TV, TV shows or movies, you see a lot of people going, “Yes, Your Honor. No, Your Honor. Do what you say, Your Honor.” That does go to people’s heads. And I’ve watched. I mean, Dave and I have been around for. We’ve been doing this a really long time now. We’ve watched many of our colleagues and peers and friends become judges. And in fact, when we first started working together 20 Years ago, I was like, “Hey, I’m going to go on the bench at some point.” You couldn’t pay me enough to do that now. It’s a miserable experience. But also it changes who a person is. It really does. I think if you have people all day long being very deferential to you, taking what you tell them and saying, “Okay, well then that’s what we’re going to do,” it does become easy to get that attitude of, like you said, a power trip or thinking that you can do no wrong, and they can.

David Crum:

These judges, they do. It’s a little bit weird, the power that kind of goes to your head, but also it’s very isolating, and that’s what people don’t realize. For

Cynthia Payne:

Sure.

David Crum:

You can’t really hang around with your friends. You can’t go fraternize with all the attorneys that are your friends that may have cases in front of you. You can’t go out drinking, go to dinner, any of that stuff. So in many ways, your life does become, it can become pretty small. But this first guy she was talking about, I heard that he came through a roadblock and he had a prostitute on the passenger side, and there was so much coke on his blazer that it was taken into evidence. They put it in a bag because it had so much coke on it. So yeah, that was not a great look. And then it’s hard to think that these people are sitting in judgment and doling out jail sentences to people. I think that’s a tough one to swallow. Okay. The one that I had that I still to this day cannot believe.

I’m not going to even say this guy’s name. He was from another state, but I don’t want to heap any more embarrassment on this guy. If you really want to look it up, you can look it up. He was a district court judge sitting on the bench. And over a long period of time while he was listening to cases, there would be this weird behavior that he would kind of be exhibiting on the stand or on the bench. And there was an odd noise that was coming from his person. It was like.

And people are like, “What is that? What’s that noise?” And he’s like, “I don’t hear anything.” Well, comes to find out, I swear to God, this guy under his robe during trial is using a penis pump while he’s listening to cases. That’s the sound. That’s not where I though that was going

Brooke Mathieu:

To go.

David Crum:

I was going to ask you to guess, but you would never guess in a million years.

Brooke Mathieu:

I though you were going to say he was farting or something.

David Crum:

No, I wish he was farting. So I don’t know if they just pulled it. Oh, they pulled his robe off and aha. But that was the disclosure. And it was like a total scandal, complete embarrassment. All of the cases, many of the cases that he had presided over had to be retried or were overturned. And then he was prosecuted for felony charges, which I didn’t know a penis pump was that serious, but I guess people take it pretty serious. Wouldn’t that be

Brooke Mathieu:

Considered public indecency?

David Crum:

Yeah, I guess. I mean, no one saw it.

Brooke Mathieu:

But you

David Crum:

Could hear it. Just the wildest thing though. The weirdest thing. I think someone saw the-

Cynthia Payne:

The state’s

David Crum:

Big on things

Cynthia Payne:

That could

David Crum:

Have happened.es coming out of his robe and they’re like, “That motherfucker’s got a penis pump.” So that’s one of the weirder ones that I’ve seen. We’re coming down to the end of our time here. So I kind of want to wrap it up. For me, unfortunately, one of the themes that I see emerging in all this is that there’s a very obvious gender dynamic here on what’s going on. And I wanted you to talk for just a little bit here toward the end about you’re someone who came up as a young attorney in your mid – 20s, working in the public defender’s office, going to court, doing jury trials, being around a lot of male attorneys. What was your experience of that? And do you think that has changed? Is it better today? Because everyone feels like wants it to be better, but I just don’t know the answer to that.

Cynthia Payne:

Well, I want to clarify because I gave a couple of examples involving female attorneys, but one was fairly harmless. She was finding some dates that way. And the other one was actually a pretty sad case because I think that attorney fell in love with that person. I mean, I think it was a pretty serious relationship. And so those are really the only two examples I have of women sort of using their power, behaving really badly in these sort of power dynamic sort of ways. My personal experiences, I graduated in 1996, so I’ve been doing this for 30 years. The very first jury trial I ever did, and this is just a good example of a gender thing. I did it with a male partner and afterwards we talked to the jury. All their questions and comments for him were about his performance. All their questions and comments for me were about they didn’t like my nail polish color.

I shouldn’t have worn pants one day. And why did I wear my hair down? It was all on my appearance. It was nothing about my performance. And that was like 1996, so it’s 30 years ago. As a young public defender –

David Crum:

What do you think of that? I mean, I know how you must have felt, but what

Cynthia Payne:

Was going through your head? It was just sort of shocking to me. I wasn’t expecting it. They’re like, “Oh, you want to talk to the jury? They’re going to talk to you about what they thought I did.” And you’re excited, thinking they’re going to give you some like some tips on your cross or something. All this kind of stuff. And they were just like, “You shouldn’t have worn pants.” I was like, “Okay, I guess I should have worn a dress.” So that was pretty upsetting. And then as a young public defender, I had more than one male judge hitting on me to the point of counsel approached the bench. I would go up and they were sliding notes across the bench to me about what I was wearing, what was I doing later, things like that. And then I went back and I told. Oh, I went back and told my supervisors about it and I said, “So this is going on.” They’re like, “Great, that means you’re going to get good results in there.

We’re going to put you in there more.”

David Crum:

Wow.

Cynthia Payne:

And I would like to say that I think things like that have changed, but here’s how I know that they haven’t. Dave and I have another attorney we know here in town, and this happened a couple of years ago, male attorney. And all of the courtrooms have cameras in them now. And one of the judges was off the bench. She and her clerk went off the bench and she came back. And the clerk had a note that someone had stuck to her monitor that had that saying like, “I hate to watch you go, but I love to watch you leave.” Some sort of comment like that, that someone

David Crum:

Had stuck

Cynthia Payne:

On her. Right. Totally gross. Disgusting. And so she shows it to the judge who is female, and the judge said, “Hello.” And she talks to the entire courtroom. She goes, “Who put this note on her computer?” And nobody will admit it. And she said, “No one’s leaving till I find out.” Still nobody says anything. And so she has the bailiff shut the doors so no one can leave. And she said, “I’m going to go watch the video to see who it was.” And so at that point, this person that Dave and I know, who I have said for decades is very misogynistic, stands up and says – It was me. Married, 20 years older than her, daughters, all this stuff. Of course. And that’s who did it. And that was just within the last couple of years. I’ve talked to young public defenders, young district attorneys, and they say this sort of thing is still going on.

So we still have those power dynamics. And all the other examples we’ve talked about are where men have taken that power and used it against women. We didn’t even talk about the male attorneys who represent strippers and then date them or all of these other extreme examples we can talk about. And I’ve just never heard of a female attorney doing that. Is there somewhere in the world I could find that, yes, anecdotally it has not been my experience.

Brooke Mathieu:

See, I feel like when I hear more on the female side, when they’re doing that, not always, some girls are bad too, but it’s almost like a Harley Quinn joker situation where it’s like you kind of truly fall in love, get manipulated. It’s like this bad boy. And then you forget that their intentions are still bad at the core because rose-colored lenses, you’re in love. Whereas I feel like with men, it can be a little bit more of a power thing.

David Crum:

Yeah. I’ve not heard or seen of any predatory behavior from female attorneys. I’ve heard of them being involved in relationships, but not in a predatory way. So I think that Cynthia’s, to me, if there’s a silver lining or if there’s a bray of hope, I think the system is responding a little bit differently. I mean, I’ve certainly seen this with sexual harassment and just like what the judge did and taking it seriously and everything. But the underlying behavior that causes it, there’s still tons of that. Tons of it. All right, Cynthia. Well, before I let you go, I have one more question for you for our viewers out there. And so if you’re a woman, I guess if you’re a man too, but if you are being represented and you find yourself in this situation, either this is just unwanted or maybe you’re financially desperate and this is the proposition that is being made to you, what are your next steps?

What do you advise people to do? Where do they go? Who do they talk to if they find themselves in this kind of situation?

Cynthia Payne:

I think it depends on the individual person and the circumstances. There are resources that are available to the public at the state bars. So you can contact your local state bar and ask to speak to their disciplinary section. You can go in, you can make a complaint about your attorney that your attorney will have to answer. Now that can become, it’s an adversarial proceeding because essentially if you do that, it gets sent to the attorney, the attorney has to respond, and almost always that’s the end of the relationship. And so you’re going to have to go out and find another attorney at that point, obviously. But if it’s gotten to the level that you think it’s abusive, that you think that you’re being taken advantage of in any way, physically, verbally, financially, in any of those ways, you can go ahead and do something like that.

Another thing you can do is that you can go and get a second opinion. A lot of attorneys will offer you a consult for a second opinion depending on what kind of case it is. Even if it’s a family law case where you might have to pay a little bit to go in and talk to another attorney, they may be able to clarify for you whether or not the advice you’re being given is correct or whether you’re actually experiencing some form of harassment or abuse. And if that’s the case, you can hire that attorney and they can advise you on the next steps to take at that point. If it’s really, really bad, like if you are scared for your safety or you think this person is making me uncomfortable enough that I think they could take punitive action against me or try and get back at me in some way, go make a police report.

You can get restraining orders. I mean, that’s very extreme. So I think the first thing I would do would be to either get a second consult and talk to another attorney to say, “Hey, is this a behavior appropriate? Are they doing the right things?” Or to make a disciplinary board complaint. Either of those I think are correct. Would you say the same thing, David?

David Crum:

Yeah, I guess I’d add a couple things to that because there’s some confusion around this, I think, and there’s some threats that are made sometimes. And one is I absolutely agree with the second opinion. People don’t realize you just go, and this is very likely. This happens probably more often in divorce and family law cases, I would say, than in any other type of cases. And so you can go to the attorney, you can go to an attorney and get a second opinion. But here’s the thing, you have the right to fire your attorney at any time. Even if you owe them money and they cannot hold your file, that’s some bullshit that people will tell you, “Well, you’re not going to get your file back. You got to pay me first.” All this stuff. They’ll do a lot of threats to something like that.

If I was in that position, I would go find the most aggressive attorney I could find on the other side of that, hire that person to do my divorce, and then make sure that I get my file, help me with my disciplinary complaint. And then if the case has been compromised, because sometimes you’re halfway through the case, your attorney may need to get continuances and may need to massage the court to be able to continue to represent you without interruption of the case. But all of that is possible and the court would be very open to that. They would have some sympathy for that. Let’s say that you were coming up on trial and you ended up firing your attorney. There would be some sympathy for this. I don’t want people to be afraid to fire the attorney and go forward with it. So yeah, that’s all I would add to it.

Well, Cynthia, listen, thank you so much for your time. There’s so much else I would’ve loved to talk to you about. I wanted to talk to you and we should have you back to talk about AI because there’s some nastiness going on and some nonsense going on with attorneys using AI, but we don’t have time for that today. For sure. So anyway, you’re welcome to come back anytime. I really appreciate it. And I’ll see you soon.

Brooke Mathieu:

Thanks, Cynthia.

Cynthia Payne:

Thanks so much. Bye-bye.

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