Monday, May 24, 2010

Lawyer Blogging Tip: When the Judge Is A "Total Asshole"

It's always fun to chat with folks who firmly believe the First Amendment applies to blogs. It mostly comes from commenters who insist their angry hate filled comments against the blogger be published, but it also comes from lawyers who don't believe they give up certain Constitutional Rights when they enter the Bar.

Let's review:

Model Rules of Professional Conduct

Maintaining The Integrity Of The Profession

Rule 8.2 Judicial And Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.


Over at Legal Profession Blog, we learn of a now-fired Illinois public defender suspended for 60 days for allegedly blogging about her cases while exposing client confidences, revealing her complicity in a client's fraud on a court, and referring to one judge as "clueless" and another judge as "a total asshole,"

This wasn't the first time this lawyer tangled with the Illinois Bar. Back in 2001, she:

....filed a motion to substitute a judge (recusal), that included false statements about the judge's financial obligations and credit limits. The motion also contained false allegations that the judge had conducted an ex parte interview with Barringer's client's son.

In Florida, we're all too aware of this issue. Lawyer Sean Conway called a judge a "evil unfair witch," and bought himself a Reprimand and a $1250 fine.

The lesson - if you're going to blog about judges, do it anonymously.

Seems ridiculous, but it's the way things are. Had Conway made that comment without the courage to include his real name, there would be no Reprimand, no link to any story about his comment. (P.S. the judge, widely criticized by the Bar, has decided not to seek re-election.)

Back to the suspended former PD.

The First Amendment doesn't apply to blogs. The First Amendment doesn't apply to lawyers who blog. It's a troubling issue. We go to school to become advocates, and agents of change, yet we are restricted from making certain comments about others. To some, this is troubling, to others, it is the only way we maintain integrity in the profession. Name calling is unprofessional, it demeans the profession, and should be regulated, says the Bar. To others, we show disrespect to the First Amendment by preventing ourselves from speaking our mind.

The rules of our profession cause these types of comments to be made quietly, at restaurants, in the halls, by both judges and lawyers. As judges always say, "you talk about us, we talk about you."

This is now the second lawyer I've seen sanctioned for disparaging comments about judges (although our PD here was sanctioned for other reasons as well.)

If you are a coward, and make these comments anonymously, you can make them all day, every day, with no repercussions. But put your name to your thoughts, and suffer discipline.

There is something very wrong with that.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.Share/Save/Bookmark

9 comments:

Jenna McWilliams said...

Er, I think you have something a little wrong here. The first amendment does not protect all speech in all circumstances. Lawyers, doctors, mental health professionals, and members of similar types of professions are required to maintain confidentiality, and this is not about their right to free speech but about their clients' rights.

Additionally, the anonymity issue seems framed a little strangely here. It's not that lawyers who blog anonymously are allowed to speak ill of other members of the legal profession or their clients, but that if they choose to blog anonymously there's little anyone can do to identify and stop them from doing so.

Brian Tannebaum said...

Thanks for stopping by. Next time, you may want to read the post before you attempt to sound intelligent and fail.

"The first amendment does not protect all speech in all circumstances." Gee, thanks.

You didn't happen to see where I wrote: "The First Amendment doesn't apply to blogs. The First Amendment doesn't apply to lawyers who blog."

But you can't stop there: "It's not that lawyers who blog anonymously are allowed to speak ill of other members of the legal profession or their clients, but that if they choose to blog anonymously there's little anyone can do to identify and stop them from doing so."

Did you happen to run across this: "If you are a coward, and make these comments anonymously, you can make them all day, every day, with no repercussions. But put your name to your thoughts, and suffer discipline."

Here's my suggestion if you want to play here: Read the post, read it again, think about it, and then, if you think you understand it, read it again. Then, if you want, go ahead and type. I'll post it here even if it is wholly incorrect and evidence of a complete lack of understanding of my point.

Anonymous said...

Brian you're an asshole.. lol jk


-Anonomous

Mark Bennett said...

Wow, Brian. You're a bitch this morning.

David Fuller said...

The Rules of Professional Standing aside, you've got to be a special kind of idiot to take a run at a judge in a blog. If you practice with any regularity, judges learn your name, you routinely file motions in front of these judges, and when you take a vacation you will probably ask this judge for at least one continuance. Now do you really want to publicly call this person a total asshole?

Brian Tannebaum said...

Ah, David. You raise the issue that too many lawyers ignore when discussing "law:" The difference between what's ethical, legal, and right.

Anonymous said...

Anonymous protests are cowardly? Do you know that most of the first protests by the colonists against the King of England here in the Americas were anonymous?

Sean Conway said...

Brian.

I appreciate you noticing that signing my name to the words was, in fact, an act of courage.

Sure, I could have just written something anonymously and ran away. But, like you noted, it took some courage to expose what she was doing with my name. Some doorknob posted earlier "not a good idea b/c you have to file motions in front of this judge" or something like that. Sure, that applies to most judges, not Aleman. She herself was reprimanded for her behavior and is not seeking reelection. I, on the other hand, have gained a lot of respect from many judges who I didn't know before this matter, and also from lots of attorneys locally and around the country.

And, although I didn't plan on this, you can imagine how clients love it when they see the framed Sunday NY Times article featuring how I had the courage to do it.

Had I used plain words, or signed it anonymously, I doubt that her "1 week trial policy" would have ever been exposed. She changed it back to a normal one immediately (plus, I am happy to report that she is no longer going to be a judge in Broward county!)

But, I have to ask, what (or who?) were you referring to when you noted "now back to the former suspended PD". Who was suspended?

Sean Conway

Brian Tannebaum said...

Sean,

Thanks for stopping by. I of course followed your case closely, and appreciate you taking the time to comment. The link with my post to the Legal Profession Blog references the PD I was writing about.

Take care.