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.
It is really sad that it has come to this. I am not too sure which side to take.
The Florida Board of Medicine is as equally screwed up as the Florida Bar. The Sun sentinel recently ranked the 47th worst in the nation in terms of physician discipline. Just like the Bar, they will do whatever possible to cover up for physician misconduct unless media exposure forces them to take action. This includes allowing physicians to give severely ill pts who lose their state-funded coverage during a treatment a sample packet of drugs and telling them to move to another state if they want care. Even when the pt turns up dead days later on an overdose of those same drugs, the Fla Board of Med does nothing.
One of the real screwy things about Florida is how lawyers are treated differently than other professionals. My dental license issued by and I am subject to the Dept of Professional Regulation. Almost all professions are under DRP. But not lawyers. They are members of the Bar, which, although it is governed by a Board of Governors, the real control lies with the Supreme Court, and thus with the judges. Talk about control! Poor guy was doomed, because they will protect their own.
Not only must one hold judges’ feet to the fire with judicial complaints, Remember one thing: As long as states receive Federal funding for anything (e.g., Dept. of Justice, Dept. of Labor, Dept. of Human Servcs., Dept. of Ed., child support, domestic violence, traffic control, child abuse prevention, etc.) the automatically wavie Sovereigh immunity for violating constitutional rights of people that this funding serves (that means everyone). When Sovereign immunity is waived, so is any kind of judicial immunity because judges are state public officials.
If a statute manifests clear intent to condition participation in the programs funded by the Federal government, acceptance of funds waives a State’s constitutional immunity, allowing federal courts to have jurisdiction over States that accepted funds. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247 (1985).
Florida Prepaid, 527 U.S. at 686 reaffirmed the holding of Petty v. Tennessee-Missouri Bridge Com’n, 359 U.S. 275, 276, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), where a state waives sovereign immunity by a general appearance in litigation in federal court, or by statute. The Court held Congress could condition the exercise of one of its Article I powers (there, the approval of interstate compacts) on the States’ agreement to waive Eleventh Amendment immunity from suit. Congress has the authority to condition receipt of federal funds for education programs on waiver of immunity. Congress’ power to authorize interstate compacts and spend money was the grant of a “gift” on which Congress could place conditions that a State was free to accept or reject. Florida Prepaid, 527 U.S. at 687.
States are free to accept or reject the terms and conditions of federal funds, much like any contractual power. A state no longer needs to consent to a waiver. As one of those conditions, federal funding and especially federal education funding cannot discriminate against anyone on basis of race, color, nationality, or gender. The obligations imposed by Congress may not induce a governmental receipt to violate any independent constitutional provisions. South Dakota v. Dole, 483 U.S. 203, 209-211 (1987). Congress has a legitimate interest in preventing the use of its funds to encourage, entrench, subsidize, or result in discrimination against persons on the basis of gender.
In order to avoid the need to attach nondiscrimination provisions each time a federal assistance program was before Congress, and to avoid “piecemeal” application of the nondiscrimination requirement if Congress failed to place the provision in each grant statute, this interest against discrimination extends to all federal funds. See 110 Cong.Rec.6544 (1964)(Sen. Humphrey); id. at 7061-7062 (Sen. Pastore); id. at 2468 (Rep. Celler); id. at 2465 (Rep. Powell). Other Supreme Court cases upholding as valid exercises of the Spending Clause conditions not tied to a particular spending program, see Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127 (1947); Salinas v. United States, 522 U.S. 52, 60-61 (1997)(upholding federal bribery statute covering entities receiving more than $10,000 in federal funds). There is no distinction of constitutional magnitude between a nondiscrimination provision attached to each appropriation and a single provision applying to all federal spending.
When Congress elects to disburse Federal funds, “Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions…and that acceptance of the funds entails an agreement to the actions.” Florida Prepaid, 119 S.Ct. at 2231. “Unlike legislation enacted under §§5 [of the Fourteenth Amendment]…legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’” New York v. United States, 505 U.S. 144, 158, 167 (1992).
The Florida Bar and others fail to realize that this type of silliness only harms public confidence in the profession and the courts. Look how ridiculous the NBA looks when it tries to fine coachles for even the slightest criticism of referees no matter how legitimate, when you have one of those referees fixing games. You don’t earn public trust by constatntly trying to cover up for incompetence and corruption. You earn trust by showing the public that you recognize there is a problem and you are doing everything possible to fix it. The epidemic of wrongful convictions in this country is more than sufficient evidence that something is terribly wrong with our judicial system and needs to be fixed. The lack of judicial accountability for their mistakes is the number one reason so many innocents are behind bars.
it is in my opinion that there are far too many corrupt judges and if they can dish out insulting comments then they too should not complain when when others critise them for not doing their jobs properly. the system stinks and i was called a liar in lawyer terminology by a judge whom is nothing more then a lawyer with a robe. they too should should have to obey the laws. however in florida the courts are as others have described a kangaroo court and with good reason there are no laws in florida they make them up as they go. judges act like they are god and and you should bow down and kiss their butts. bull hockey. they are put there to find the truth not conduct their private lives at the expense of clients waiting for justice. i have only been to a trial once in my life and its in fortlauder dale fl. it was a joke and a disgrace. and like said above cannot get an attorney to fight for my rights properly because its where he lives and works and stated just that way so how is justice ever to be served.
Prof. Turley,
Very intereresting blog post. You are probably aware of a Virginia lawyer who recently received an order from the Virginia Supreme Court to show cause why he should not be sanctioned up to the loss of privileges to practice for stating in a circuit court that the Virginia Supreme Court did not have the “guts” to address a particular issue. I’m interested in your thoughts on the matter.
Sincerely yours,
Joshua Silverman
It’s another judge in Florida behaving stupidly.
http://www.reuters.com/article/idUSTRE5B63HX20091207
Hiring a make-up artist to cover a defendant’s Nazi tattoos because they might be prejudicial.
Like hiding the man’s true identity and personal preferences he loved so much he had them inked into his skin from the jury isn’t prime facie prejudicial AND deliberately misleading as to the defendant’s character.
Are the judges in Florida drinking from lead ware?
The U.S. Senate Judiciary Committee is intended to be the constitutional check on the federal judiciary. But the Florida Bar will deny you admission if you exercise this check by asking people to write letters urging Senators to oppose the nomination of judges who routinely rule against civil rights litigants. In Florida, falsely impugning the integrity of a judge has evolved into any criticism whatsoever of a judge, regardless of the merits.
There is an even more disturbing aspect to the Florida Bar’s actions. Whereas the rule for lawyers is that they may not falsely impugn the integrity of a judge or legal official, the Florida Board of Bar Examiners has arbitrarily decided that the standard for the bar applicants can be “whatever we want it to be.”
Florida Bar applicants are presently denied admission for one year or more for *any past criticism* of a judge, regardless of truth, falsity, or tone, and even if it occurred years before the applicant was even in law school!
Of course the common criticism of the Florida Bar is that these actions are used to generate revenue and limit the supply of lawyers in the state–criticism that appears to be valid based on these cases, especially since the fee for admission based on rehabilitation is $1800.
and how ironic of you to write that, Mespo, considering your first impression of the “commerce” aspect:
“… BTW twelve hundred bucks to call a recalcitrant judge to heel. That’s a deal. Can I chip in?”
mespo727272 1, September 30, 2009 at 10:27 am
actually, Mespo, I got the idea for my comment from reading what you wrote – and yes, please ‘chip in’. You can send donations to the Center For great Apes in Wauchula, FL
if that the last sentence got Mespo to change his stance on the 1st amendment implications, then he mustn’t have had a very good understanding of the issue since his opinions seems to change like the wind …
“commerce” had nothing to do with it – the comment was intended to rub it in the faces of some other jealous ‘haters’ in the legal community down here who mistakenly think I was ‘punished’ by being fined.
The point is that, by attacking expression, it always backfires & brings the point to a larger audience (Lenny Bruce, Two Live Crew, etc.). Relax Mespo, and try to stay true to your positions.
Attorney Sean Conway wrote:
“I’m still amazed at how much interest this matter generated…”
_________________________________
Professor Turley wrote:
“The ruling is a major blow to free speech and another case of courts or the bar overreaching…”
“What is equally bizarre is the Florida Supreme Court has upheld this abusive fine and in the process tossed aside first amendment concerns”
_________________________________
Nonlawyer FFLEO writes:
It matters to me, Mr. Conway, because of 2 simple, although universally critical words:
Free Speech
Sean:
“publicity [is what] the clients love to read when they are deciding which attorney to hire. $1200 was cheap for the publicity it generated.”
****************
I was on your side until that last couple of sentences. Fights based on principle are what we’re about; yours seems more based on commerce.
the word I used was arbiter (not arbitec’) – not sure how your site f-ed that up?
I was happy just to know that Aleman changed her odd “1-week until trial” policy after my post on the blog.
I’m still amazed at how much interest this matter generated – I saw no need in fighting the Bar’s actions (as Aleman’s policy had ended). Still, making the Wall Street Journal, New York Times front page, (and now jonathanturley’s blog!) is publicity the clients love to read when they are deciding which attorney to hire. $1200 was cheap for the publicity it generated.
Anyone know a judge who’s not an evil unfair witch?
Maybe in their first two weeks, yeah….
Years and years ago, I worked for a businessperson who produced a product of real value. This individual truly enjoyed every aspect of the production process and took great pride in the finished merchandise. However, the individual despised almost everyone who sought to purchase the completed goods. As a result, this businessperson would commonly get into an argument with the customer and end up calling him or her the profane version of “rectal orifice”. Where upon many of the customers would threaten to sue the businessperson for slander. The response to this threat would be, “My attorney tells me that as long as I can find ten people who, from their own experiences in dealing with you, agree that you are a rectal orifice … and I know I can for you are a rectal orifice … then I will win any lawsuit you bring.”
I suppose the operative phrase is “from their own experiences in dealing with you”. Perhaps State Bar Associations need to apply that rule of ten before sanctioning an attorney for speaking plainly about a judge.
Having never had any contact with her nor do I know anyone who has, I have no reason to believe if this is true or false but I’m just sayin’:
The seemingly mentally ill Judge Cheryl Aleman is an evil, unfair witch with an ugly condescending attitude who is clearly unfit for her position and knows not what it means to be a neutral arbitec’!
Cheryl Aleman is an evil unfair witch