Courts Cutting Down Free Speech of Lawyers

In surfing the net to collect articles of interest to our readers, we came upon this piece today from the National Law Journal, which we republish without comment and with credit to its original source. Comments by former Judge Avalos, defeated in her election bid, and Sean Conway, Supreme Court reprimandee, make it interesting..

Lawyers critical of judges fight for rights
Are lawyers' First Amendment rights being unfairly limited?

Tresa Baldas / Staff reporter February 9, 2009

Maybe it's something in the air. Lawyers in California, Florida, Michigan, New York and Ohio, to name a few, are at the center of legal debates and constitutional battles involving harsh and sometimes vulgar comments about judges. Judges are increasingly catching flak from lawyers in a variety of forums, most notably the Internet, where blogs have become a popular tool for attorneys to vent frustrations about a judge.

In Florida, an attorney faces discipline this spring over a blog entry on a courthouse blog in which he described a judge as an "evil, unfair witch" with an "ugly, condescending attitude" and questioned her mental stability. The Florida Supreme Court refused to hear the lawyer's constitutional argument in October. He will be reprimanded in April and has to pay a $1,200 fine. Florida State Bar v. Conway, No. SC08-326 (Fla.).

In New York, an attorney was recently suspended for five years for committing several ethical violations, including writing an article on a Web site in which he criticized a judge's handling of a divorce and custody proceeding. A New York appeals court said the "overzealous behavior" was disparaging and "constituted conduct prejudicial to the administration of justice." In the Matter of Barry L. Goldstein, No. 2006-10353 (N.Y. App. Div.).Protected speech?

In Michigan, flamboyant trial attorney Geoffrey Fieger, the one-time lawyer to Dr. Jack Kevorkian, is pursuing a highly watched right-to-criticize-judges lawsuit. Fieger is challenging a state rule that was used to sanction him for calling state appeals judges "jackasses" in a radio show and comparing them to Nazis for overturning a $15 million verdict he had won.Michigan's Rules of Professional Conduct for lawyers require that attorneys treat those involved in the legal process with "courtesy and respect" and bar "undignified or discourteous conduct" toward judges.

Nonsense, argues Michael Dezsi, Fieger's lawyer, who is currently fighting to have the courtesy rule declared unconstitutional before the 6th U.S. Circuit Court of Appeals."Our argument has always been that attorneys have a right to criticize judges, even if it's harsh," Dezsi said. Dezsi said Fieger's comments were protected free speech because they were nondefamatory remarks made outside the court and did not affect a pending case."I think overwhelmingly case law has supported protecting trials, not judges' feelings," Dezsi said.

Florida attorney Sean Conway, the lawyer who called a judge an "evil witch" on a blog, echoed similar concerns. Although he is not fighting his discipline, Conway believes that lawyers' free speech rights are unfairly limited when it comes to criticizing judges."Even though we all thought we had First Amendment rights, be careful," Conway warned. "It's going to cost you a lot of money and maybe even your practice."

As for his comments that got him into trouble, Conway, who posted them using his name, said that he was expressing anger over what he claimed was the judge's giving lawyers too little time — one week — to prepare for trial. "I picked the most powerful language because I wanted to have my message heard," said Conway, adding that lawyers are increasingly blogging about judges, "anonymously and in hiding."

Catalina Avalos, a former judge in Broward County, Fla., said she knows all too well how nasty lawyer blogs can get. Several disparaging remarks have been made about her on blogs, including racial slurs, in the past year, along with many "negative, vile and false" comments about other judges."These blogs are turning up all over the country, and what's happening is you have what we presume to be lawyers blogging under anonymity," said Avalos, now a litigator at Tripp Scott in Fort Lauderdale, Fla.

Still, Avalos isn't sure about whether lawyers making nasty remarks about judges should, or can, be punished. "Our First Amendment is one of our fundamental rights," Avalos said. "Certainly, the protections are going to be far reaching."

But that doesn't give lawyers a green light to say whatever they want about judges, said James Moliterno, who teaches professional responsibility at the College of William and Mary Marshall-Wythe School of Law."There needs to be a certain amount of restraint," Moliterno said. "The public's perception of the justice system is affected by the way lawyers behave. Lawyers accept this when they get sworn in and take their license. They accept some limitations on various speech rights."

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Did I say would run this story without comment? No way. Can't resist. Sean got screwed. Aleman is no 'witch,' but the Bar prosecutors are warlocks for going after him. The Supreme Court then skated out from overturning it, even though they gave themselves a shot. Very unfortunate. Calling a judge an 'evil witch' is surely not prudent, but it is hyperbole at best; an emotional and zealous response after being placed in an untenable position in court. Yes, the case has become a national cause celebre', but in a more mature and less politically correct age, I think an apology should have cut it. Then you move on. Considering some of the things I heard lawyers say about some criminal judges over the years, from Futch to Franza, a 'witch' does not a public reprimand warrant. Man, Ray Sandstrom is turning over in his grave. ... N.K.

US Appeals Court Tosses Fieger’s Challenge to Bar Civility Rule

by Norm Kent

A federal appeals court dealt a setback to Michigan attorney Geoffrey Fieger Tuesday when it overturned a federal judge in Detroit who found that state rules requiring lawyers to use 'civility' when they talk about judges were unconstitutional. He is pictured to the right with his attorney, Gerry Spence, who had represented him on other charges relating to improper financing of a presidential campaign.

The lawsuit was challenging an ethics rule requiring lawyers to use courtesy and civility in their professional conduct and dealings.

The Cincinnati-based 6th U.S. Circuit Court of Appeals said Fieger and and Detroit lawyer Richard Steinberg did not have standing to bring the suit, according to the Detroit News and the Associated Press.

Fieger had stipulated to a disciplinary reprimand for vulgar comments he made about appeals judges who ruled against him in a malpractice case, but he reserved the right to challenge the ethics provisions that were the basis of the reprimand. The Michigan Supreme Court affirmed the discipline.

Thus, he brought his claim to the US District Court, which granted him the relief he originally sought. However, the 6th Circuit reversed the ruling today in its 2-1 opinion, a PDF version of which can be found at this site:

http://www.abajournal.com/news/us_appeals_court_tosses_geoffrey_fiegers_challenge_to_civility_rule

Fieger had called the appellate judges “jackasses” for overturning a $15 million verdict and compared them to Nazis during a radio interview.

The Fieger case had been cited by lawyers for Fort Lauderdale attorney Sean Conway last year when he sought to overturn his own consent judgment for branding Circuit Judge Cheryl Aleman 'a witch' on JAABLOG. Fighting his disbarment last year, Jack Thompson of Coral Gables also relied unsuccessfully on Fieger. Judge Adalberto Jordan of the US Southern District crafted distinctions between the Michigan and Florida Bar rules on ethics.

In the decision under review, the district court had ruled that the courtesy and civility provisions of the Michigan Rules of Professional Conduct violate the First and Fourteenth Amendments to the U.S. Constitution because the rules are overly broad and vague and enjoined their enforcement.

The majority on a divided three-judge panel reached the following holding:

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