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.
For the full story, click here.
Orly Taitz will get hers soon enough. The court is just being careful to do it in a way that does not cause a wingnut-driven press controversy.
I think that the proper balance is the COA. If the COA does its job and it is not political then the right thing is done. However, sometime the political machines get in the way and the wrong things is affirmed by the COAs.
The Check is the attorney presenting the case to the Judge and/or Jury. The balance is the Judge decides the matters of law. If the judge applies it incorrectly then the COA’s should reverse it.
The problem lies when the Prosecutor and Judges are cut from the same cloth and it is hard to distinguish between the two and a single actor of the state.
Briefly:
We vacate the judgment of the district court and remand with instructions to dismiss
the complaint for lack of jurisdiction. We hold that Fieger and Steinberg lack standing
because they have failed to demonstrate actual present harm or a significant possibility of
future harm based on a single, stipulated reprimand; they have not articulated, with any
degree of specificity, their intended speech and conduct; and they have not sufficiently
established a threat of future sanction under the narrow construction of the challenged
provisions applied by the Michigan Supreme Court. For these same reasons, we also hold
that the district court abused its discretion in entering declaratory relief.
Unfortunately, EDMI Judge Tarnow’s decision (quoted in part, in a link in a previous discussion of this matter) in Fieger v. Michigan Supreme Court, 2007 WL 2571975 (E.D.Mich. Sep 04, 2007) (NO. CIV.A. 06-11684) was vacated by the United States Court of Appeals for the Sixth Circuit. (Fieger v. Michigan Supreme Court, 553 F.3d 955 (6th Cir.(Mich.) Jan 20, 2009) (NO. 07-2213), rehearing and rehearing en banc denied (May 01, 2009))
Petition for Certiorari Filed, 78 USLW 3082 (Jul 30, 2009)(NO. 09-142)
Here is the public link to the Sixth Circuit’s Opinion: http://www.ca6.uscourts.gov/opinions.pdf/09a0020p-06.pdf
Another interesting story here on the east coast with a new york state senator:
By Emily Feldman
NBCNewYork.com
updated 7 minutes ago
The girlfriend of alleged face-slasher Hiram Monserrate will take the witness stand today, and what she says may determine whether the embattled state senator will have to trade in his button-down for a jumpsuit.
http://www.msnbc.msn.com/id/33088043/ns/local_news-new_york_ny/
How about a lawyer who calls judges who rule against her (on standing issues, usually) traitors, and in the pocket of the Obama Administration?
And who goes around the country seeking to impanel “citizen” grand juries to indict Obama and other public officials for treason?
And who advocates the violent overthrow of the country?
And who says in a pleading to a judge that if he does not pass on the merits of her claim — and do so in her favor — the people of this country who think President Obama was born in Kenya (or maybe Indonesia or Canada) will revolt in armed rebellion since that’s all that’s left for them?
Or who has partnered with a disbarred lawyer, who makes court appearances with her, and participates in court proceedings before a federal judge, and negotiates on her behalf with Assistant U.S. Attorneys?
Or who files cases for clients who do not even know she is representing them? And when they try to substitute their own counsel into the case, have her dismiss them out without their permission?
Or who reveals attorney-clieht communications on her webblog after a client fires her and she is facing an OSC re sanctions from a federal judge for frivolous and contumacious filings on behalf of that client?
Do you think such a lawyer would be disciplined? Apparently not, if you live in California and your name is Orly Taitz.
“There’s always the cutting room floor.”
–Alfred Hitchcock (when asked how he handled stubborn actors who would not follow his directions)
I disagree with my friend Buddha and Alan. I think lawyers are an important check on judicial power through their ability to file appeals and cast light on the imperious attitude of some (very few actually) on the bench. No one likes a bully judge, least of all an appellate court who must decipher and justify their judgments. The legislature is even more skeptical. Lawyers have the power to cast light, and in a democracy that is the ultimate appeal.
BTW twelve hundred bucks to call a recalcitrant judge to heel. That’s a deal. Can I chip in?
I never said it would be easy, Alan. 😀
P.S. that should have read “I like your ideas…”
@Buddha Is Laughing: I think your ideas but they will never come to pass without significant public pressure or amendments to the state constitution. The courts jealously guard their powers over the bar and will not give them up willingly. For example, when the legislature attempts to get involved, the courts, through their ability to interpret the laws, simply declares this to be an unlawful separation of powers violation. The courts in the end respond only to unflattering media attention, or the potential for a situation to generate unflattering media attention. The ultimate check of course is impeachment (which is hardly ever exercised), or election in those jurisdictions (such as NY, cited above) that elect judges (and has its own set of tradeoffs).
> “But what would you suppose would be the proper balance?”
That is a good question. I think for starters, all judicial and bar discipline records need to be open to the public with the names of the complainants and respondents redacted at their request, and any confidential info of clients published only with their permission. If and when a matter is “docketed” for further proceedings (whether before a court or a committee), then the name of the respondent should become public if previously redacted. All proceedings should be open to the public, and recording devices should be allowed. The committees also need to include members of the public who are elected rather than appointed, and there needs to be a private right of action (if bar counsel does not bring proceedings, a complainant should be allowed to proceed privately). These steps would ensure the integrity of the proceeding for all constituents: the judiciary, the bar and the public.
I agree with Alan. The State Bar associations are a bit of a joke. To any who doubt this, look at what letting someone like Orly practice has led to: lots of wasted judicial resources. To address this instant issue, I’m going to pull an oldie out of the hat – a set of conclusions from a group argument in law school over this very subject. After discussing the disparity of treatment for attorneys vs. judges, the unequal admissions requirements and the disciplinary duties, we came up with two solutions.
The first is pretty straight forward. Separate judicial and practicing bars with a well defined cross channel complaint and review processes in addition to an appointed or elected civilian review board of appeal or access to traditional civil courts to hear judicial vs practitioner complaints or appeal bar rulings. Something analogous to non-binding arbitration with standing and right to appeal. State’s being as they are, the appeals process could be enhanced by distancing to Federal courts, but that presents other issues.
The second idea sounds crazier than it actually is. I like it, to admit bias, because the root of the idea was mine. Eliminate state bars all together and create a separate and distinct body of civil and criminal laws based on the Canons. If utilized with a high degree of focus on conflict of interests in venue selection (and there are many structural ways to ensure greater compliance from court structure proper to very specific modification to venue laws) this form could work. And it presents no issue about qualifications to practice. How? If everyone holding themselves out as an attorney is held to the “expert knowledge” standard in the Canon for non-practicing but legally educated and/or experienced individuals, what difference does it make if you take a knowledge test and the practically useless MPRE (and I say useless because a parrot can say “ethics” and not know what it means)? If you’re concerned about basic knowledge, then make a law degree the qualification to hold out services for hire and leave it at that. If they had the skills to pass, they have the skills to access directly. How competently they do so, as today, is entirely up to them. The frauds and bad actors would soon end up in punished civilly or criminally and forbidden to represent others in court as part of their punishment (either permanently or for a period) – an item that could could be a simple list like a sex offenders list. By defining the unacceptable behavior before hand with very specific statutory language, we eliminate a lot of the wiggle room for personal biases from any judge hearing the cases as well – an additional control. To this end, you would not need a bar associations. What you’d need is a state office to collect a statement along with ordinary business operating licenses that states that the undersigned willingly subjects themselves to this specialized body of law by holding themselves out offering representation and counsel services with the full understanding that penalties can include “disbarment” be they operating as either counsel or judiciary if found guilty of their breach of legal duty. You’d then get a nice little official piece of paper to hang on the wall with your business and tax licenses that says “Joe Blow is licensed to offer legal services.” Period. If you think this wouldn’t work, I suggest that the recent PA scandal involving the two judges “cooking the books” to send innocent teens to jails for profit would not have gone on nearly as long if citizens subject to that injustice had had better tools to take on the judges. What about Orly? I think under this proposed system, Rhodes would have a much easier time smacking her down for her misrepresentations and malpractice. And if you think the current system keeps out the incompetent and the bad actors? You haven’t been reading this blog.
I think both of the above approaches have merit.
Why would these work? Because the system(s) as they stand and noted above are inherently biased because they are self-policing. Take a long look at Wall St. and see how well the idea of self-policing works. That is why we are SUPPOSED to be a nation of laws, not men. The second suggestion goes to this end, but the first suggestion is probably more “politically salable” although (IMO) the less through or perfectible of the solutions.
As always, I welcome feedback, but . . .
Importance of this issue in context requires some perspective. In the scale of systemic problems plaguing our country, the problems with state bars is important, but it’s purely second tier to issues like restoration of the rule of law and the multiple Constitutional violations ranging from violation of the Separation of Powers Doctrine to the multiple civil rights violations that Bush started and Obama continues. It’s a problem, yes, and it it needs some attention but we have bigger fish to fry at the moment.
The attorney has never been a check on the judge. The attorney is an officer of the court who is admitted by and serves at the pleasure of the court. The attorney can be removed by the court at any time, and regardless of due process, if the court wants an attorney gone, it will find a way. The attorney is an advocate for his client and a liaison between the court and the public to ensure the wheels of justice can keep turning (if every party were pro se, the courts would quickly grind to a halt). This in no way constitutes a “check on the judge”. It is more of a check on the parties and matters that come before the court, and the manner in which they are handled.
The Attorney is supposed to be the check on the Judge and the Court of Appeals is supposed to be the balance to assure that the lower court judge is doing the correct thing.
Isn’t this just yet another case of what “Associations” do? Whilst giving lip service to “protecting” the public and “monitoring/controlling” their members they are really there solely for the good of their principal members (in this case the judges) and to back them up, right or wrong.
Protect the good name of the group and screw the people they are all supposed to be serving.
Alan,
I cannot say that you are wrong. But what would you suppose would be the proper balance?
P.S., I am strongly in favor of more media and citizen oversight of both the judiciary and the bar. For starters, both the judicial oversight and bar discipline processes need to be revamped to make them more transparent to the public.
Anonymously Yours wrote: “All to often these are summarily dismissed as unfounded. They have the institution to protect.”
Contrast this however with cases where the media leads the charge against a judge. These almost always get a response from the judicial committee. The same charge though, when bought by an attorney, will get the attorney sanctioned. To understand this you have to look back again at the purpose of both the bar discipline and judicial discipline processes: to protect the judiciary and the courts from unflattering attention.
This is a sensitive matter for attorney’s practicing before the bitch. Oops meant to say bench. It is called Black Robe Fever and all to often the power goes to their loins.
While I have said some rather uncharitable things about some rather uncharitable judges, let it be understood that I never put it in writing. Even when I filed a complaint about unfair treatment against a judge with tenure qualifications committee. I was up front and honest, I did not let emotion carry the way. It would have been easy to. All to often these are summarily dismissed as unfounded. They have the institution to protect.
In this case, I would have made my point on the record and been held in contempt. However, I would have done so artfully and skillfully that she would not have realized until I was gone what had been really said. The courtroom is where speech is protected, or else I would long ago been convicted of libel and slander.
I think she was and is wrong as well as the state bar of Florida. I believe that this is protected speech and the judge is wrong. What was that case where two judges in PA were charged for accepting bribes, etc. and not Chicago style either or they never would have been caught. How many complaints were filed against them prior to the charges being brought? If none, you know that the attorneys were afraid to say anything because they had to practice before these bozo’s. If some were filed what was the disposition before the charges were brought?
I have practiced before what I would consider two honorable judges out of the nearly 75 that I have been before. One ruled against my various clients numerous times, but he was always fair and took the time to hear the cases. I did not like the ruling but he put a lot of time into reaching the merits of the case. The other judge was a decent human being that made judgment calls and was right about 95 per cent of the time. He was not afraid to make a decision and was most fair.
I can see where this attorney is coming from.
You are surprised by this? The bar discipline process was specifically established to protect the judiciary. It is completely undemocratic and unelected. Everything it does has evolved from the purpose of protecting the courts from unflattering criticism which historically would come from the media. Here was have an attorney who used his blog to being unflattering attention to the judiciary, exactly what the bar discipline process was designed to prevent. Of course he is going to get sanctioned on some trumped up charges.