Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing Ft. Lauderdale Judge Cheryl Aleman on a blog, including calling Conway an “evil, unfair witch.” We previously discussed this case, here. The ruling is a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges. What is particularly interesting is that Aleman has been charged with misconduct by the Judicial Qualifications Commission.

Conway was apparently fed up Aleman’s mistreatment of lawyers and unreasonable orders. This includes her alleged habit of refusing defendants reasonable time to prepare for trial and then insisting, if they wanted to prepare, that they waive their constitutional right to a speedy trial: “She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it. And that’s why I stand by what I did.” What he did was in Oct. 2006, on Jaablog, he called her an “evil, unfair witch” and described her “ugly, condescending attitude.” The contents of the posting are linked below, but the posting includes five specific remarks raised by the Bar:

(1) l along with several other attorneys, had to endure her ugly, condescending attitude as one-by-one we all went up to the podium and noted that our respective clients had just been arraigned on Oct. 18th as she forced us to decide between saying ready for trial – or need a continuance”; (2) “Every atty tried their best to bring reason to that ctroom, but, as anyone who has been in there knows, she is clearly unfit for her position and knows not what it means to be a neutral arbitec’; (3) “Evil, unfair witch (“hereinafter “witch”)”; (4) “As my case was on recall for 2 hours, I watched this seemingly mentally ill judge condescend each previous attorney”; and (5) “Judge (not your honor b/c there’s nothing honorable about that malcontent) there seems to be a mistake in this case.”

The Bar sent this letter (2007-04-03-Letter Notifying Conway of Bar Investigation) to Conway placing him under investigation (which includes the original article and correspondence).

Yet, the Florida Bar seems to have lost its collective mind and found five bar violations, including impugning a judge’s qualifications or integrity (a standard so vague and overbroad that it defies reasonable limitations).

What is equally bizarre is the the Florida Supreme Court has upheld this abusive fine and in the process tossed aside first amendment concerns. Conway was required to pay $1,200.

The proper response to Conway would have been a letter of caution that asked him to be a tad more respectful while acknowledging his right to voice his objections about the record or demeanor of a judge.

The Court has long protected opinion and “rhetorical hyperbole”, particularly from government sanctions. See National Ass’n of Letter Carriers v. Austin, 4l8 U.S. 264, 284 (1974). Lawyers are required to conduct themselves with decorum and respect in the courtroom but they do not waive their rights of free speech in criticizing judges — particularly elected judges who are necessarily subject to criticism in the public forum. Notably, when the New York courts dealt with this issue, they came down solidly on the side of free speech. In Justices of Appellate Division, First Department v. Erdmann, 33 N.Y.2d 559, 560 347 N.Y.S.2d 44I, 301 N.E.2d 426 (1973), a lawyer was protected in saying that few trial judges in certain local courts left guilt or innocence to jury and that the appellate judges in same department were “whores who became madams.” The lawyer even went as far as saying that the only way to become a judge was “to be in politics or buy it.”

As the Court has stated, “speech is often provocative and challenging . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminello v. City of Chicago, 377 U.S. 4 (1949). I fail to see how this speech presents a “clear and present danger for a serious substantive evil.” Yes, it contained some juvenile rhetoric, but lawyers are in the best position to raise such objections about allegedly incompetent or abusive judges. Judges deserve respectful treatment in court and lawyers should be punished for uncivil or unprofessional conduct. However, this case creates a chilling effect on speech that is perfectly glacial.

We have seen courts overreaching in recent cases to punish lawyers and parties alike for their public statements. A minister was hit with a probation violation (later reversed) for calling down “demons” upon a Michigan judge, here. One California blogger was arrested in Singapore for saying that a judge was “prostituting herself.”

The Illinois case of Kristine A. Peshek raises a more difficult and closer question. Perhek lost her job as an assistant public defender (with 19 years of service) over blog postings which are described in the bar report:

…Respondent was an assistant public defender in Winnebago County, Illinois. In the course of her duties, she had access to information about clients that would otherwise be confidential or secret.

Between June 2007, and April 2008, Respondent wrote and published an Internet web log (“blog”) entitled “The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense.” Approximately one-third of the blog was devoted to discussing Respondent’s work at the public defender’s office and her clients, and the remaining content of the blog concerned Respondent’s health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or by their jail identification number.

Respondent’s blog was open to the public and was not password-protected. Respondent knew or should have known that the contents of her blog were continuously available to anyone with access to the Internet, and she maintained a site meter on the blog that counted the number of visits to the blog. At some point, Respondent posted the following language on her blog:

Commentary is Both Invited and Appreciated. Let’s Get Some Dialogue Going!

On or about March 14, 2008, Respondent represented a college student in relation to allegations that he possessed a controlled substance. On March 14, 2008, Respondent published the following entry on her blog:

#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

Respondent knew or should have known that information contained in her March 14, 2008 blog . . . was confidential, or that it had been gained in the professional relationship and the revelation of it would be embarrassing or detrimental to her client.

Thefiling goes on to detail additional such examples. This case shows a legitimate concern over public statements by lawyers that could harm former clients or undermine the confidentiality guarantees in our profession. Notably, however, she is also charged with referring to one judge as “Judge Clueless” which does raise the same first amendment concerns.

Another distinguishable case involved San Diego lawyer Frank R. Wilson, who discussed details from his service as a juror on his blog and caused a criminal case to be overturned, here. Wilson insists that orders not to discuss the case did not expressly include references to a blog. He received a 45-day suspension, paid $14,000 in legal fees and lost his job.

As we have previously discussed, even judges have faced allegations over their blogs or postings, here, as in the case of Judge Alex Kozinski.

The Conway case is materially different from lawyers violating court rules as jurors or revealing confidential information. Here he was criticizing a judge and is being punished for what the court called “arrogant, discourteous and impatient” speech. The decision by the Florida Supreme Court and the lower courts is itself a case of judicial arrogance in policing the criticism directed at its own judges. I do not agree with the tenor or content of Conway’s remarks. However, I am far more alarmed by overreaching by these judges than I am overheated rhetoric by this attorney.

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