There is a bizarre fight brewing in Florida between a lawyer and judge over their respective alleged misconduct. Lawyer Sean Conway faces discipline for attacking Judge Cheryl Alemán is facing possible discipline before the Judicial Qualifications Commission. At issue are not just standards of professional and judicial conduct, but the first amendment.
Conway’s problems began with an entry on his blog on Halloween 2006 where he described Alemán’s “ugly, condescending attitude” and questioned her mental stability. He described how she made lawyers choose between unreasonable trial dates or waiving their clients’ rights to a speedy trial. He also described her an “evil, unfair witch.” He also added: “She is clearly unfit for her position and knows not what it means to be a neutral arbiter.”
The posting was made on Jaablog, a courthouse weblog.
Conway is accused of five bar violations, including impugning the judge’s qualifications or integrity. That standard has always raised serious constitutional questions since lawyers have a right to speak out against judges. This is particularly the case when judges run for office. While it is clear that a judge has considerable power to regulate the conduct and statements of lawyers in court, the punishing of statements made in the public forum about a judge can threaten free speech.
Courts have long viewed the issue differently. Although lawyers have free speech rights, they insist that the privilege of serving as an attorney requires compliance with professional standards of civility, decorum, and respect. Yet, this should not immunize judges from attacks over their own conduct. While the witch comment was unnecessary, Conway was raising serious questions about the judge’s conduct.<
He also filed formal charges against Alemán with the Judicial Qualifications Commission. She is currently waiting the outcome of her three-day trial for allegedly threatening to hold defense attorneys in contempt and refusing to remove herself from cases in which she had an acrimonious relationship with the defense attorney.
Conway appears to have a constitutional case and is expected to rely on recent challenges to such rules in other states. The most recent involved controversial attorney Geoffrey Fieger who successfully challenged a formal reprimand by the Michigan state courts. Fieger called specific Michigan judges “three jackass court of appeals judges” and referred to them as “Nazis”. Nevertheless, this year, U.S. District Judge Arthur J. Tarnow found that the are unconstitutional as both overly broad and vague under the First Amendment (free speech) as well as violative of the due process requirements of the Fourteenth Amendment.
“As interpreted by the Michigan Supreme Court, the State of Michigan’s effort to regulate unprotected speech through the courtesy provisions causes a substantial amount of protected speech to be regulated as well.
In addition, the courtesy provisions are so imprecise that persons of ordinary intelligence must guess at their meaning. Although it has long been recognized that states have legitimate interests in restricting attorney speech both to protect the fair public’s perception of it, these interests do not extinguish a Michigan attorney’s First and Fourteenth Amendment constitutional rights to free speech and due process.
Limiting an attorney’s extrajudicial criticism of a branch of government in the name of preserving the judiciary’s integrity is likely to have an unintended, deleterious effect upon the public’s perception, since attorneys are often best suited to assess the performance of judges. Political speech– speech about government issues or government officials–is “at the core of what the First Amendment is designed to protect.”
Conway’s discipline would trigger another such challenge and could well add to the cases limiting the ability of the courts to restrict public criticism of their records or conduct.
For the Florida story, click here