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Genesee Valley Chapter — What Would The Grievance Committee Do?

What Would The Grievance Committee Do?

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on December 9, 2009. Imagine a judge has just assigned you to represent a fellow charged with a felony. Immediately you receive a letter from the judge instructing you to appear for trial in five days, eight days after your client’s arraignment. You appear on the trial date and remind the judge that the rules of criminal procedure for your state provide that a defendant “is entitled to a reasonable time in which to prepare for trial.” She responds, tartly: “Trial or continuance?” She further advises you that, if you choose the latter, your client waives his right to a speedy trial. Reluctantly, you choose the continuance. The judge routinely puts defense counsel under the gun in this manner. Fed up, you go on a local legal blog and describe your experience, in strong words. The judge has an “ugly, condescending attitude” towards attorneys, you write. “She is clearly unfit for her position.” “Judge (not your honor because there’s nothing honorable about that malcontent.) … EVIL, UNFAIR WITCH.” Others are upset with your remarks. They complain to the state bar association, which investigates and charges you with multiple violations of the Rules of Professional Conduct. Welcome to the real case of Florida Bar v. Conway, SC 08-326. Conway was the trial lawyer who was upset by the conduct of a Fort Lauderdale judge. He did not deny making the statements. He countered that they were protected by the First Amendment. Judges are public figures, even more so when they are elected. “Debate on the qualifications of candidates is at the core of our electoral process and of the First Amendment freedoms, not at the edges.” Republican Party v. White, 536 U.S. 765, 781 (2002) (judicial election). Attorneys have a special insight on the qualifications of judges. Their criticism of judges cannot be muzzled and many courts have so held. What excited the Florida bar was the tone of Conway’s criticism. Statements of “rhetorical hyperbole” aren’t sanctionable, however, nor are statements that use language in a “loose, figurative sense.” National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974). New York’s highest court recognized that principle long ago when it refused to censure an attorney who wrote that trial judges were “whores who became madams.” Justices of Appellate Division, First Dept. v. Erdmann, 33 NY2d 559 (1973). “Witch,” “ugly attitude,” “unfit” and “malcontent” clearly are opinions, in the form of hyperbole. An attorney may be sanctioned for making a false statement of fact, which impugns the integrity of a judge. Garrison v. Louisiana, 379 U.S. 64 (1964). So what did the Florida bar do? It found Conway’s remarks to be “false or to have been posted with reckless disregard as to their truth or falsity.” Unfortunately, the bar did not detail what was false about the remarks or how Conway proceeded recklessly. It did not dispute that the judge set quick trial dates and forced counsel to waive the right to a speedy trial. The bar publicly reprimanded Conway and fined him $1,250. He gave up. I wonder what the U.S. Supreme Court, whose conservative jurists are very protective of the Free Speech Clause, might have said about the sanction. To my friends on the bench, I ask: How would you react if I blogged that you were unfit, a malcontent and a witch? To my friends on the Grievance Committee, I pose the following: Would you charge me with a violation of our new Rules of Professional Conduct, or recognize that my comments are opinions protected by the First Amendment?

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