By Jordana Mishory
Daily Business Review
New York Lawyer
July 16,2008

Fort Lauderdale, Fla., criminal defense attorney Sean Conway agreed he was in the wrong when he called a controversial Broward judge an "evil, unfair witch" and "seemingly mentally ill" two Halloweens ago.

But following the intervention of the Florida Supreme Court, Conway is attempting to get his conditional guilty plea tossed on the basis that the First Amendment protected his comments.

An attorney should be able to have some liberty in expression and not face disciplinary action, lawyers argued in Florida Supreme Court briefs.

"Questioning a judge's qualifications for an elected position lies at the core of our First Amendment freedoms," the American Civil Liberties Union wrote on behalf of Conway.

He faces Florida Bar discipline for writing disparaging comments about controversial Broward Circuit Judge Cheryl Aleman on a popular law blog. But a deal with the Bar requiring a guilty plea in exchange for a public reprimand was called into question last month by the state's high court.

The justices directed both parties to file briefs by Monday on whether his comments are protected speech under the First Amendment.

The court raised the speech issue but also has been pushing for greater professionalism in the legal community.

In several recent cases, the Supreme Court has stiffened suggested penalties in an effort to make the point that it's getting tough on lawyer misconduct.

Conway and the ACLU, which filed an amicus brief, contend his comments on JAABlog were exaggerated opinions, which are constitutionally protected.

"On Halloween 2006, the respondent referred to Judge Aleman as a mean-spirited witch," Conway's attorney b wrote. "His comment that Judge Aleman was a 'witch' is an example of figurative speech."

Wrubel also noted the limiting word "seemingly" in Conway's phrase about mental illness "falls squarely into the category of cautionary terms" and should be protected by the First Amendment. Both Conway and ACLU attorneys Randall Marshall and Maria Kayanan defended Conway's remarks as permissible hyperbole.

Wrubel said Conway was exercising a freedom exulted by founding father James Madison, and the court should reject his client's guilty plea and dismiss the Bar complaint.

In an interview, Conway said he pleaded guilty out of concern for the outcome in his case.

"With so many years of stagnant, unchanged, old-school policy, I had no faith that justice would make an appearance in my case in a South Florida courtroom," Conway said. Conway also pointed to the fact that Aleman had changed the policy that he blogged about, so he had accomplished the goal of his posting and now needed to move on with his life.

Wrubel said in an interview that just because Conway admitted in writing that he violated a Bar rule doesn't mean that he actually did. The ACLU of Florida contended the Bar's case against Conway "imperils the core values of the Constitution."

And the Supreme Court, which brought up the free speech question on its own, was also apparently troubled. In its order to show cause, the justices directed both parties to address "whether any of the respondent's comments should be considered protected speech under the First Amendment."

The Florida Bar did not see it the same way. Asserting the practice of law is a privilege, the Bar contended free speech rights don't shield an attorney from discipline. The Bar argued Conway did not have any reasonable objective basis to support inappropriate comments about a member of the judiciary. Conway, "as an officer of the court, made statements that directly attacked the qualifications or integrity of a judge," the Bar wrote.

He was accused of violating Bar rules forbidding attorneys from impugning the qualifications of a judge and making statements known to be false or in reckless disregard to the truth. But attorneys claim that you cannot measure the truth of hyperbole.

Nova Southeastern University constitutional law professor Robert Jarvis, who is not involved with the case, said Conway's statements don't mean that Aleman casts spells, wears black hats or flies on a broomstick. He said that just because a theater critic says a play is the worst show ever doesn't mean it's true. He said most readers would know that the critic had not seen and judged every play ever created but could say it for dramatic effect.

The Bar noted Conway agreed to a conditional guilty plea that hinged on him acknowledging his remarks about Aleman were either false or made with reckless disregard. But that does not mean the justices have an obligation to accept the Bar's findings. The Supreme Court has the final word.

Jarvis said the high court's order to show cause indicates that the justices want to take a closer look at this issue instead of rubberstamping the Bar's findings. Jarvis called this case a "no brainer."

"Lawyers are people, too," Jarvis said. "If you cut us, do we not bleed? And just because you become a lawyer doesn't mean you give up your First Amendment rights."

However, he added that Conway's colorful language on the blog diminished his criticisms. He said Conway should have turned to more tangible facts to criticize Aleman than name-calling. Conway also is in trouble for saying Aleman had an "ugly, condescending attitude," was "unfit for her position" and there was "nothing honorable about that malcontent."

In his brief, Conway claimed his statements were all protected opinions rather than false. His comments surfaced in a blog posting claiming Aleman forced defendants to waive their right to a speedy trial by setting trials just a few weeks after arraignment.

Aleman is one of Broward's most controversial judges -- making headlines since she was sworn in more than six years ago. The 4th District Court of Appeal overturned her in several high-profile cases for overstepping the "wide latitude" afforded judges and sentencing a defendant in excess of the statutory maximum. Last February, the Judicial Qualifications Commission, which regulates judges, filed formal charges against Aleman for threatening to hold or holding attorneys in contempt of court and not removing herself from cases where she had prior problems with attorneys.

The state JQC recommended she receive a public reprimand for engaging in a pattern of arrogant and discourteous conduct. She appealed the ruling to the court, which has not weighed in yet. Both Conway and ACLU attorneys maintained Conway was exposing a potential problem in Aleman's courtroom. If Conway were sanctioned, the ACLU contended his First Amendment rights -- and the rights of the public -- would be trampled.

Both Conway and the ACLU noted a 2001 disciplinary case cited in the Supreme Court's order to show cause. The justices in the old case noted attorneys "play an important role in exposing valid problems within the judicial system." Attorneys should only be prohibited from making false statements that would "erode public confidence" without publicizing "problems that legitimately deserve attention."

Conway and the ACLU said the Bar never challenged Conway's account of what happened in Aleman's courtroom, and his referee never conducted any evidentiary hearings to vet the truthfulness of Conway's claims. They argued his comments can be seen only as opinion because the referee never found that Conway lied about what happened.

The ACLU went a step further saying that even if Conway's statements were false, they should not violate the Bar rules unless Conway knew what he was saying was wrong or reckless. "In short, Judge Aleman's rulings provided the respondent with an objectively reasonable basis in fact to express the opinions which he posted the following day on JAABlog," Wrubel wrote.

The Bar countered that the reason the claims were never vetted was because of Conway's plea agreement. The Bar also claimed his intent was not to expose a wrong but to lash out at Aleman. He "never sought redress by any other means other than posting his blog on the Internet," the Bar wrote. "The respondent never sought judicial review of the judge's continuance policy through an appeal nor did he file any complaint of judicial misconduct with the appropriate agency." Conway said he filed a Judicial Qualifications Commission complaint against Aleman and interviewed with the JQC's special counsel who was prosecuting Ale>man.

Conway said he is shocked that the Bar would misrepresent that in a brief, when they could easily check with the JQC. However, the state Constitution maintains that JQC complaints are confidential until probable cause is found against the judge. Citing case law, the Bar said courts have ruled vile attacks and angry outbursts "by their very nature are likely to indicate a reckless disregard for the truth of what is being said and not protected free speech under the First Amendment." The Bar pointed to a 2003 Minnesota case where that state's Supreme Court rejected the argument that a lawyer had a First Amendment right to state a judge won election to the bench "by appealing to racism." The court wrote, "merely cloaking an assertion of fact as an opinion does not give the assertion constitutional protection."

The Bar also cited a 2000 case where the Delaware Supreme Court found that a lawyer's statements claiming a judge "suffered a progressive mental disability" causing "mood swings and injudicious conduct" was not protected because they were made with reckless disregard to the truth. The Bar pointed to Conway's comments that Aleman was "seemingly mentally ill," saying that he did not have the medical background to make such a claim.

Campaign finance laws exist for two reasons: one, to ensure disclosure of the influence of money on the political process; and two, to soften the effects of that influence by enacting limits on contributions and other restraints.

There is no doubt that Southfield attorney Geoffrey Fieger completely subverted those aims when he essentially laundered through employees of his law firm hefty contributions to the 2004 presidential campaign of John Edwards.

But can you make a federal case out of it? A U.S. District Court jury didn't think so, refusing Monday to convict Fieger and law partner Vernon (Ven) Johnson of doing anything illegal. So congratulations to Fieger for gaming the system and then beating it.

The problems with money and politics should, by now, be quite clear. Too much of the political process is dictated by who has money, who gives it and how public policy decisions are made with respect to the money trail. Right now, we're in the midst of the most expensive presidential campaign in history, which will be true only until the next one, four years from now.

Campaigns on the merits, in which the candidate with the strongest ideas wins, regardless of financial backing, are a pipe dream.

The obvious solution is some sort of public financing that puts everyone on equal footing. Remove private money from the process altogether and let the candidate have at each other on the issues.

No surprise, there's tons of moneyed opposition to such a system. And there are constitutional questions looming over any mandatory public finance system that prohibits contributions, which are still deemed a form of political expression, though they often seem more like naked commerce.

But even without such stark reforms, the system ought to have some integrity, and the limits established by law ought to be enforced. Fieger got around them by being clever, pleading ignorance, then getting a jury to see it his way. It certainly helped that the local U.S. attorney's office had been frighteningly aggressive in its pursuit of Fieger, and that he had the cash to hire an attorney who reputedly has never lost a case. Yes, money matters in criminal justice at least as much as it does in politics.

No doubt, Fieger's acquittal gives a little more mettle to other fat cats who want to skirt the law. It's a victory for him, but a step back for the political process.

Fieger Is Cleared in Campaign Fund Case
Lawyer Was 'Scared to Death' of Guilty Verdict

DETROIT -- Southfield attorney Geoffrey Fieger and his celebrity attorney, Gerry Spence, embraced and kissed jurors on the courthouse steps Monday after they acquitted Fieger and his law partner Ven Johnson of all criminal charges.

The joyous scene outside the federal courthouse in Detroit contrasted sharply with the mood inside, where federal prosecutors left U.S. District Judge Paul D. Borman's courtroom after being handed a major defeat in a high-profile case. "We're very disappointed," said Assistant U.S. Attorney Lynn Helland.

Fieger, 57, and Johnson, 46, were indicted by a federal grand jury last year on conspiracy and illegal campaign contribution charges, accused of illegally reimbursing more than $100,000 in political donations made by employees, employee relatives and law firm vendors to the 2004 presidential campaign of Democrat John Edwards. Fieger also was charged with obstruction of justice, a 10-year felony.

The acquittals represent the latest in a string of high-profile setbacks for the U.S. Attorney's Office in Detroit and the U.S. Justice Department, including the voluntary reversal in 2004 of convictions won in the "sleeper cell" terrorism trial, the acquittal of former Macomb County Prosecutor Carl Marlinga in 2006 and the acquittal of former federal prosecutor Richard Convertino in 2007.

After more than 18 hours of deliberations spanning four days, jury foreman Scott Duquette, a Macomb Township auto technician, stood in a packed courtroom and pronounced "not guilty" verdicts on all 10 counts.

"I hope this will put an end to political prosecutions in the age of Mr. Bush," Fieger said, referring to the U.S. president whose administration he accused of targeting him.

The key issue in the case was whether Fieger and Johnson knowingly broke the law. Fieger took the stand in his own defense, telling jurors he carefully researched the law and concluded the reimbursements were legal.

"I was scared to death," Fieger said after the verdict. "It would have been the end of my career. It would have been the end of my family as I know it. It would have been the end and I would have gone to prison."

Prosecutors alleged Fieger's firm illegally reimbursed donations to Edwards campaign totaling $127,000, a figure that was adjusted downward to $113,000 at the end of the trial.

Jurors said they decided to acquit Johnson last week and eventually reached a unanimous decision that the government never proved a case against Fieger, either.

Juror Al Rollins, 51, said he believed politics played a part in the decision to go after Fieger. Congress should make it more clear what is legal and what isn't, he said.

"The government was after them and they didn't do a very good job of it," Rollins said. "He (Fieger) clearly didn't know what he did was illegal. He thought it was legal."

Another juror, Burlrando Pearce, said he began jury deliberations Wednesday believing Fieger should be convicted but eventually came around to the majority view and voted for acquittal.

He and other jurors said discussions sometimes became heated to the point they believed they could be heard outside the jury room.

Duquette and most other jurors interviewed said they didn't know if the prosecution was politically motivated but did not believe the government proved its case beyond a reasonable doubt.

Fieger was a 1998 Democratic candidate for governor who rose to prominence in the 1990s representing assisted suicide advocate Jack Kevorkian.

Fieger alleged he was the victim of a partisan Republican U.S. Justice Department, a charge Helland denied.

Spence, 79, the legendary Wyoming attorney who announced during his closing argument that the Fieger case would be his last, hugged jurors outside the courthouse, telling Duquette that he was the one juror Spence did not feel he could get a read on which way he was leaning.

"I knew this jury would never convict," Spence said after the verdict. "They were a good, solid American jury and the evidence wasn't there."

Spence, who has written several books on criminal defense, defended former Philippine first lady Imelda Marcos, Idaho separatist Randy Weaver in the Ruby Ridge case, and the family of corporate whistle-blower Karen Silkwood.

Spence boasts he has never lost a criminal case and it appears he will now retire with his record intact.

West Bloomfield labor attorney Lester Owczarski, a former state administrative law judge who sat through most of the trial, said prosecutors failed to present a case jurors could care about. "It was too much inside baseball ... this thing was just too technical," he said of the Fieger case.

Steve Fishman, Johnson's Detroit attorney, admitted to jurors his initial confidence in an acquittal began to wane as the deliberations dragged on. Fishman told Duquette jurors they could have saved Johnson grief by returning his "not guilty" verdicts last week and continuing to deliberate over Fieger.

Feds: Case is Not Political

DETROIT (AP) _ A federal prosecutor says outspoken lawyer Geoffrey Fieger and a law partner knowingly dodged campaign finance laws to boost contributions to Democrat John Edwards' 2004 presidential campaign.

Assistant U.S. Attorney Lynn Helland delivered his opening argument Thursday in the trial of Fieger and Ven Johnson.

Both men have denied the charges. Their lawyers are scheduled to deliver their opening statements later in the day in Detroit federal court.

Helland told the jury the case was about illegal fundraising. He says both defendants "took steps to try to make these illegal contributions look legal."

The 56-year-old Fieger and 46-year-old Johnson are accused of making $127,000 in illegal contributions to Edwards' 2004 campaign

Taxpayer Advocate Richard Fine Faces Disbarment

Tarzana attorney Richard Fine is charged with moral turpitude with a recommendation by California State Bar Court Judge Richard Honn that Fine be disbarred, the Los Angeles Daily News reports.

Honn alleges in state bar documents that Fine "filed meritless lawsuits" to retaliate against judges who ruled against him. Fine alleged L.A. Superior Court judges hadn't disclosed the nearly $40,000 paid to them annually by the county, on top of their salary, in cases where the county was a party.

Fine argued his case at state Supreme Court, who haven't ruled yet.

Fine told the Daily News that the state bar began action against him because he filed cases against judges - rather than his earlier cases against the state legislature and governor. According to the newspaper, "legal observers say the case against Fine is unusual." What do you think?

The state Court of Appeal in San Diego will hear oral arguments in February in a lawsuit, filed by Judicial Watch alleging the nearly $40,000 given by the county to judges as a extra benefit are a gift and waste of public funds.

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The nerve of attorney Sean Conway, who faces disciplinary action from the Florida Bar for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" in an October 2006 Internet posting.

Where did he think he was, a free country with a First Amendment?

Nope. He's in Florida, where the Bar has been lowered with overly restrictive rules that protect judges at the expense of attorneys' freedom
Free Speech Advocate Conway speech

For sure, Conway's post on a local judicial Web site (http://jaablog.jaablaw.com) was crude and inflammatory. While criticizing Aleman for setting trial dates for two weeks after arraignment, he called her "seemingly mentally ill" and wrote that "she is clearly unfit for her position."

He said he doesn't regret the strong language. "Defendant's right to a fair trial was being trampled on," Conway said Friday. "I thought it was my duty to expose it.... If I used other words, the situation might not have gotten the attention it deserved. I believe it got the message across, because her policy changed the next week."

But the message has put his livelihood at risk.

Conway's blog post triggered an investigation by the Florida Bar's grievance committee, which in November found probable cause that he violated five Bar rules, including impugning the qualifications and integrity of a judge.

Conway could be reprimanded, fined, suspended or disbarred for his actions.

"This has put more stress on me than I want to deal with," said Conway, 36. "I want to go back to running a small, one-person firm. I don't even have a secretary."

He said he's heard from lawyers all over, including one in Ohio suspended six months and fined $18,000 by the Ohio Bar for denigrating a judge.

Part of Conway wants the matter to go away by reaching some sort of settlement. But another part wants to fight for the bigger principles, seeing as how the Florida Bar is a branch of the Florida Supreme Court.

"The right of every lawyer to expose injustice is at stake," Conway said. "The Bill of Rights is at stake. And my license to practice law is at stake."
Last year, a U.S. district court in Michigan found that state's Bar rules overly restrictive in a case involving an attorney who called judges "Nazis" in a radio interview.

Wrote U.S. District Judge Arthur J. Tarnow: "The vague and overbroad courtesy provisions that enforce silence in the name of preserving the dignity of the bench does not override an attorney's right to speak her mind against public institutions, especially an elected judiciary, regardless of whether that speech is in good taste."

Most state bars have rules prohibiting attorneys from making statements that undermine public confidence in the judiciary. Conway agrees that lawyers shouldn't be allowed to make reckless allegations about judges. "I shouldn't be able to just spout off that so-and-so is on the take," Conway said. "But in this case I was trying to protect my clients."

Aleman, meanwhile, has been transferred from criminal to civil cases and awaits the outcome of a recent hearing by the state Judicial Qualifications Commission for possible misconduct in other cases. Morrie Levine, a Hollywood attorney who was chairman of the Florida Bar grievance committee when it found probable cause against Conway, said the committee was aware of the Michigan ruling but thought it was legally irrelevant in Florida.

"We followed Florida law and Florida Bar rules in making our decision," Levine said. "Whether the rules are overly broad or restrictive on free speech is not up to us.... I'm proud of our committee."e
Levine said this was the first case he was aware of involving the Internet.

The irony is if Conway hid behind anonymity or a pseudonym, as most Internet posters do, he probably wouldn't have gotten in trouble. "My nature is not to hide," Conway said.

By being a stand-up person and putting his name to his post, he's opened himself to harsh consequences.

Where's the justice in that?

http://www.sun-sentinel.com/news/local/broward/sfl-flbmayocol0106sbjan06,0,6957463.column?coll=sofla_tab01_layout

That's exactly what some are wondering after it was disclosed that a criminal defense attorney is facing Florida Bar ethics charges for critical comments he posted on a Web log about a controversial Broward, Fla., judge.

A number of constitutional experts claim attorneys give up the full force of the First Amendment when they join the Bar, but other lawyers say they have every right to speak their mind.

The debate resurfaced after the Bar found probable cause against Fort Lauderdale, Fla., criminal defense attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an "evil, unfair witch" who is "seemingly mentally ill" on a blog about the courthouse. Formal charges against Conway are pending.

Bar rules ban attorneys from making statements that impugn the integrity of a judge or the judiciary. Attorneys who violate the rules of professional conduct could face discipline ranging from a reprimand to disbarment.

Conway's attorney, Fred Haddad, claims the First Amendment protects his client's online comments posted on JAABlog in October 2006. The post criticized Aleman for allegedly forcing defendants in her courtroom to choose between the right to a speedy trial and the right to a well-prepared defense.

"You don't give up any constitutional rights when you become a lawyer," he said. "A lawyer has an obligation to educate the public. The choice of words is immaterial."

Attorney Louis Jepeway Jr., who represents lawyers before the Bar, said Conway should not be facing any sanctions. "Lawyers aren't second-class citizens," he said. "It is unfortunate the judge is so sensitive, but it's not a reason to violate [Conway's] First Amendment rights."

The Bar's Fort Lauderdale office, which found probable cause against Conway, did not return a call for comment by deadline Wednesday.

But several constitutional experts said an attorney's ability to speak about a judge ends when the statements cross from criticism about a judge's conduct or decisions to a personal attack. The intent is to ensure public confidence in the judiciary and the courts system, but it could undermine public trust in court operations.

Lida Rodriguez-Taseff, a Miami attorney and a former president Miami chapter of the American Civil Liberties Union, said the Bar can mandate ethical rules as a condition for admission, and the rules can limit First Amendment rights. "The practice of law is considered a privilege," Rodriguez-Taseff said. "When lawyers choose to be admitted to the practice of law, they do so because they know they have to abide by rules of conduct of The Bar."

Rodriguez-Taseff, who declined to comment specifically about Conway's case, said the rules aren't designed to muzzle attorneys. She said attorneys are still able to comment on the qualifications of judges and the merit of legal rulings. "The Bar can regulate the decorum in which you express opinions," the Duane Morris partner said. "As lawyers, we have to be careful that in seeking to bring unfairness to the forefront that we do so in a manner that elevates the profession."

Nova Southeastern University law professor Robert Jarvis, who teaches classes in constitutional and ethics issues, echoed Rodriguez-Taseff's position that the Florida Bar has a right to limit First Amendment rights as a condition of a law license. Jarvis said attorneys can talk about the qualifications of the judiciary but shouldn't resort to name-calling.

Conway should have turned to the chief judge or Judicial Qualifications Commission if he believed Aleman's actions were wrong, Jarvis said. Conway said he filed a JQC complaint against Aleman."The purple prose is designed to inflame the passion of the public against this judge, which has the effect of inflaming the passion of the public against all judges," Jarvis said.

Both Jarvis and Rodriguez-Taseff note the Bar has the power to limit lawyers' commercial speech in advertising and client recruitment.

Florida has one of the nation's most stringent rules regulating attorney advertising. Attorney Barry Richard, a partner at Greenberg Traurig in Tallahassee who has advised the Bar in disciplinary appeals, said the Bar rarely reviews claims of attorneys bad-mouthing judges in public. "Only since the advent of Internet and blogs did things get widely disseminated that at one time would be discussed at a cocktail party," Richard said.

"Most lawyers are usually pretty cautious to avoid that kind of public commentary out of respect for the system, even if they don't respect the individual judge."

Constitutional attorney Rick Ovelmen, a Miami partner with Jorden Burt, said Conway has some "strong First Amendment defenses" to the anticipated Bar charges. He said the rule barring false and reckless statements by attorneys against judges is based on the defamation rule for public officials and follows accepted constitutional law against libel of a public figure.

But Ovelmen said opinion is protected speech. He said Conway would have defamed Aleman by saying she was accepting bribes. However, Ovelman thinks Conway has some good defenses on his "witch" remark.

"I pray to Aleman's God that the right result will come out. I just wish they would leave me alone," Conway said. "I wish Judge Aleman would stop reading the blog and get back to work."

In Conway's case, he used his name on JAABlog when he complained about Aleman's "new (illegal) 'one week to prepare' policy" setting felony trials one to two weeks after arraignment. Conway claimed the judge was forcing defendants to choose between a speedy trial and the right to a fully prepared defense.

JAABlog is a popular legal blog run by a small band of Broward criminal defense attorneys. The blog focuses on claims of judicial abuse and misconduct as well as courthouse happenings.

In an October post, Conway wrote that Aleman had an "ugly, condescending attitude" a during proceeding he sat through." But as anyone who has been in [Aleman's courtroom] knows, she is clearly unfit for her position and knows not what it means to be a neutral arbiter," Conway wrote. For the Web site, he replaced Aleman's name with the words "evil, unfair witch" when transcribing one of his exchanges with the judge.

The Bar notified Conway in April that they opened an investigative file against him. The Bar's 17th Judicial Circuit Grievance Committee told Conway this month it found probable cause against him for violating five Bar rules. One requires that a lawyer not disparage the qualifications or integrity of a judge by saying something "the lawyer knows to be false or with reckless disregard as to its truth or falsity." </P?

Another rule he is accused of violating states a lawyer can not "engage in conduct in connection with the practice of law that is prejudicial to the administration of justice." The other counts allege violations of a rule requiring attorneys to uphold standards of professional conduct.

The grievance committee found probable cause against Conway as the state Judicial Qualifications Commission wrapped up a three-day hearing against Aleman. She faced charges claiming she behaved in a vindictive manner, used fear to control her courtroom and exhibited a pattern of arrogant, impatient and discourteous conduct.

Lansing Scriven, a Tampa, Fla., attorney prosecuting the JQC case, recommended a public reprimand for the judge, the lightest form of punishment for a judge. The commission's six-member hearing panel has not ruled.

Sanctions for judges found guilty of violating the code of judicial conduct range from a public reprimand to removal from the bench.

Conway stands by his actions. He said he was respectful and courteous before Aleman in court but felt the need to publicly expose her behavior. "Because our judges are elected, we should not have gag orders over the very people that work in front of those judges every day," Conway said. "When something illegal is going on, we expect those people to tell the public."

Conway said the Bar's probable cause finding against him indicates people would be better off posting anonymously instead of signing their name to their comments."But speaking from hiding is not free speech at all," he said. "I don't think the founders of our country intended us to use free speech from secret hiding spots."

Haddad contends the Bar is overstepping its bounds. He pointed to Aleman's hearing as evidence that his client's statements weren't unfounded." Conway didn't say anything that every other lawyer doesn't say in the elevator every day," Haddad said.

A Winnipeg lawyer has been found guilty of professional misconduct for calling a judge a bigot in a letter sent to several colleagues.

Robert Ian Histed claimed he did nothing wrong and was simply exercising his freedom of expression under the Charter of Rights and Freedoms.

He also accused the Law Society of Manitoba of breaching his privacy rights by allowing the letter to be used as evidence against him when it was marked "strictly confidential."

Justice Freda Steel, writing for the appeal court panel, rejected both arguments.

Steel said the judiciary should be open to criticism, but to operate effectively, the legal system must operate with some degree of civility and respect.

The incident dates back to 2004 when Histed was retained by several clients in residential school litigation against several parties, including the federal government.

Histed and opposing lawyers exchanged several letters as they attempted to agree on a Queen's Bench justice who could be oversee the case as it wound its way through the courts. Four specific judges were named as potential candidates.

Histed referred to one of the choices as a "bigot" and two others as "too right wing." He called the fourth choice "fair, intelligent and a really nice guy (who) would not move the matter forward on a timely basis."

Histed has refused to back down, claiming he was "simply stating the truth" with his comments.

By Douglas S. Malan
The Connecticut Law Tribune
New York Lawyer
October 15, 2007

Hartford attorney Myles H. Alderman Jr. never admitted to violating any lawyer ethics rules by implying a judge was biased. But he also didn’t deny that his statements about the judge might lead to more serious professional discipline if he didn’t settle the matter with grievance officials.

Alderman has agreed to a reprimand based on comments he made during a July 22, 2002, deposition in his firm's lawsuit against a client to collect unpaid legal fees. In Alderman & Alderman v. Millbrook Owners' Association Inc., Alderman made statements about Superior Court Judge Julia L. Aurigemma during his deposition.

Aurigemma presided over a lawsuit involving United Technologies Corp. (UTC) that Alderman brought on behalf of Millbrook Owners' Association, which oversees a 79-unit condominium development in East Windsor. The association sued Hamilton Standard, a UTC subsidiary, for allegedly causing soil pollution at the condominium site. Aurigemma ultimately dismissed the case due to Alderman's delays in complying with court orders.

"My recollection is that a review of cases [Aurigemma] had decided, had indicated that more often than not UTC got a good outcome in front of her," Alderman said during the 2002 deposition. "Whether or not that was justified or not, I don't know."

Later, according to a transcript of the deposition, Alderman added, "I had an observation in the court, that it appeared to me that there was a presumption of credibility for UTC and UTC's counsel; and that I thought that the decision that was made by her [to dismiss the condo association's lawsuit] was in error."

Alderman had consulted with his counsel, Douglas Evans, before making that statement, which followed a question asking him if he believed Aurigemma's decision was based on a bias toward UTC. Evans did not object to the question. "In retrospect, I wish an objection had been interposed so I wouldn't have had to answer it," Alderman told the Law Tribune last week. "As a witness during a deposition, you can only answer with the honest answer."

"That is protected speech," opined Pepe & Hazard's Dan Klau, a neutral party observer. "To hold otherwise would be to punish a lawyer for a thought crime."

When asked during the deposition if he shared his opinion with any other parties, Alderman said, "I may have advised a representative of the [Millbrook] board that UTC had done well in prior matters before the court, which I think goes back to presumption of credibility."

He maintained last week that it is a lawyer's duty to research the past rulings of presiding judges, and that lawyers often discuss those rulings with their clients. He added that he never shared his comments in a public forum.

Alderman accepted grievance officials' recommendation of a reprimand. "[A] trier of fact could find by clear and convincing evidence that I violated one or more of the [state's lawyer-ethics] rules," which might lead to a different disposition that "could include a greater penalty…," he acknowledged in the affidavit accompanying his conditional admission and agreement to discipline.

Alderman told the Law Tribune it was easier to accept the reprimand than to examine "40 boxes of evidence" that would've come into play and dragged out the process, mainly because his wife and law partner, as well as their son, were going through difficult health issues. "If you'd asked me the day after the deposition if I'd said anything that offended anyone, it wasn't that," Alderman said last week. "I believe that I conducted myself in complete compliance to the letter and intent of the rules."

Rule 8.2(a) of the Rules of Professional Conduct states that lawyers "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 … ."

Hartford Superior Court Judge Grant Miller found probable cause of a Rule 8.2(a) violation when ruling last year against a legal malpractice claim Alderman & Alderman brought against Evans, the lawyer it retained to represent it in the fee collection suit against Millbrook Owners' Association.

• A mishandled bankruptcy filing earned Alvin E. Taylor, an attorney with McNeill & Associates of Bloomfield, a six-month suspension on Sept. 11 from Hartford Superior Court Judge James T. Graham. Taylor filed a notice of retirement with grievance officials last November.

Taylor was retained in July 2005 to file a Chapter 7 bankruptcy petition for Alex M. Perry, but Taylor did not file it until October and did not adequately explain to Perry the status of the filing, according to grievance officials. Taylor also failed to file the proper state personal exemption, which was $75,000, and failed to record both the bankruptcy resolution, which occurred in December 2005, and the removal of certain liens on Perry’s personal residence.

Taylor agreed to reimburse Perry more than $56,000 for his mistake with the exemption but had not done so as of the time of the grievance hearing. Taylor neither answered the grievance nor attended a hearing in the matter.

• Instances of bank account overdrafts and disappearing settlement money led to presentment orders against West Haven attorney Carolyn Smith Stewart in late June and she has since gone on inactive status due to medical conditions.

Statewide Bar Counsel Michael P. Bowler filed two complaints against Stewart last fall after she twice wrote checks for $224.95 against her Interest On Lawyers Trust Account (IOLTA) funds when the balance was less than $60. Stewart failed to provide a written explanation of her activities following Bowler’s two separate requests for documentation pursuant to Practice Book Section 2-28. She also failed to file an answer to the grievance complaint.

In a separate grievance decision, Stewart was ordered presented to the Superior Court for not paying $1,000 in restitution to the victim of her client. In October 2004, Stewart told the court, in State v. Lewis, that her client, Ryan Lewis, had the money to cover the court’s decision. Based on her statements, the court vacated Lewis’s guilty plea to having no insurance. The victim’s attorney, Thomas F. Maxwell Jr., repeatedly sent letters to Stewart asking about the payment, which was never made. Stewart never responded to Maxwell’s letters, nor did she file an answer to the grievance complaint.

Famous Lawyer, Sanctioned for Likening Judges to Nazis and Jackasses Wins Appeal, But He's Not Out of the Woodshed Yet

By The Associated Press
New York Lawyer
September 5, 2007

DETROIT - A federal judge has sided with former assisted suicide lawyer Geoffrey Fieger on rules that sanctioned him for comparing state appeals court judges to Adolf Hitler and referring to them as jackasses.

When judges talk about threats to judicial independence, which is constantly, they sometimes make important points about the value of the rule of law in a democracy. Other times they are looking for a pay raise.

But lately, more and more, they seem to be saying their work should be above criticism. They have been lashing out at lawyers and even other judges who say harsh things about their decisions.

Boyd K. Dyer, for instance, got a little carried away in appealing decisions to the Utah Supreme Court. Mr. Dyer, a Utah lawyer, was upset that a state appeals court there had made what all concerned agree were errors of fact and law in ruling against his clients in two real estate disputes.

In his appeal, Mr. Dyer wrote that he believed the mistakes were intentional, saying, for instance, that the appeals court had ''simply fabricated'' evidence. In a particularly ripe comment during oral arguments, he compared the mistakes to ''a recent news development with respect to a little town in Iraq called Haditha,'' where marines killed 24 unarmed Iraqis.

The Supreme Court did not like Mr. Dyer's style, finding his accusations to be ''disrespectful of the judiciary,'' ''scandalous'' and ''offensive to propriety.'' It dismissed the appeal in January without deciding the case, effectively ruling against Mr. Dyer's clients, and it ordered him to pay his adversaries' legal fees, which were about $17,000.

An appeals court in Sacramento also got prickly when it learned about what it considered an insulting comment from a state trial judge. ''You can't offend the kangaroos up there in the kangaroo court,'' the judge, K. Peter Saiers, had said in a plea hearing.

The three judges on the appeals court panel gave sober and extended consideration to how offended they should be. ''This was a pejorative remark,'' they ruled in December, after consulting a dictionary that defined ''kangaroo court'' as one in which ''the principles of law or justice are disregarded or perverted.''

Judge Saiers, the appellate judges said, had violated a canon of the code of judicial ethics, which requires judges to ''uphold the integrity and independence of the judiciary.''

Then, in a lovely moment in February, the appeals court had to reverse course. It turned out that Judge Saiers's remark about ''the kangaroos up there'' referred to a committee in the district attorney's office that met upstairs from his courtroom.

The district attorney, James P. Willett, had a more mature attitude about the comment. ''He has a knack for spotting the strengths and weaknesses of a case and discussing those factors, in plain talk, with the parties,'' Mr. Willett said of the judge in a letter to the appeals court. ''It is typically said with a pointed but jocular tone and certainly does not offend me.''

The Utah and California cases are only the latest in a series of judicial overreactions. A particular peeve in other courts is the accusation of intellectual dishonesty.

In 2005, Michael G. Brautigam, an Ohio lawyer, said a decision he was appealing to the Kentucky Supreme Court contained ''extreme intellectual dishonesty.'' For that, Mr. Brautigam was charged with violating a Kentucky ethics rule prohibiting false statements about ''the qualifications or integrity of a judge.''

He said fighting the charge was burdensome and frustrating. ''Whomever made the formal bar complaint against me — likely a Kentucky appellate judge — is protected from being identified by the bar complaint process,'' he said.

The complaint was eventually dismissed, and Mr. Brautigam is unrepentant. ''The 2-1 decision of the Court of Appeals was intellectually dishonest,'' he said. ''I said it. I meant it. I stand behind it.''

Michael A. Wilkins, an Indiana lawyer, had less luck. He was formally reprimanded a few years ago by the Indiana Supreme Court for saying in a footnote that an appeals court decision was so riddled with errors that ''one is left to wonder whether'' the court ''said whatever was necessary'' to reach the desired result.

A dissenting justice was left scratching his head. ''It seems to me no different from the attacks many lawyers and nonprofessionals have launched on many court decisions, including such notable ones as Bush v. Gore and Brown v. Board of Education,'' the justice, Theodore R. Boehm, wrote.

Mr. Dyer, who teaches law at the University of Utah, did not respond to requests for comment about his run-in with the State Supreme Court. But his adversary in the case, Edwin C. Barnes, said Mr. Dyer had promptly apologized and sent along a personal check for the full amount of Mr. Barnes's fees.

Mr. Barnes said his opponent had crossed a line. ''Lawyers suggest error all of the time — every time we object, every time we appeal,'' he said. ''But it can be done professionally, without assigning motives or impugning character.''

That is correct — as a statement of how to conduct effective advocacy. But, as Justice Hugo Black wrote in a 1941 decision reversing contempt citations against a newspaper and a labor leader, courts should be wary of policing speech critical of them.

''An enforced silence, however limited, solely in the name of preserving the dignity of the bench,'' Justice Black wrote, ''would probably engender resentment, suspicion and contempt much more than it would enhance respect.''

Fieger Wins Right to Fight Judges
Appeals Court: Southfield Attorney Can Challenge State High Court Justices' Refusal to Recuse Themselves

Paul Egan
The Detroit News
December 27, 2006

A federal appeals court Tuesday upheld lawyer Geoffrey Fieger's right to challenge the way the Michigan Supreme Court handles requests for judges to recuse themselves.

The decision of the 6th U.S. Circuit Court of Appeals is a partial victory for Fieger and a setback for a Michigan Supreme Court that is battling internal dissension.

Fieger, the Southfield attorney known for his inflammatory comments and multimillion-dollar judgments, state's seven Supreme Court justices to recuse
themselves from his cases.

Fieger alleged Justices Maura Corrigan, Clifford Taylor, Robert Young Jr. and Stephen Markman demonstrated personal dislike and bias toward him.

The 6th Circuit upheld a lower court ruling that federal courts have no jurisdiction to overturn past refusals by the justices to recuse themselves. But the appeals court reversed the decision of U.S. District Judge Marianne O. Battani when it said federal courts may consider a challenge to the constitutionality of the recusal process.

"This is basically the end for them," Fieger said of the four justices. "They've basically considered themselves above the law and they're not answerable to anybody."

Michigan Supreme Court justices make their own decisions on whether to recuse themselves from cases and provide no review process. Fieger alleged that violates his due process rights.

Battani will proceed with discovery and a possible trial in federal court in Detroit on whether the recusal process is constitutional.

Michigan Supreme Court Justice Elizabeth Weaver, who has criticized her four colleagues for refusing to disqualify themselves from Fieger's cases, last week criticized them again in a dissenting opinion, saying they were advancing a policy of greater secrecy and less accountability.

Those justices have alleged Weaver is resentful over being replaced as chief justice.

Rusty Hills, a spokesman for the Michigan Attorney General's Office that argued the appeal for the Supreme Court, declined comment.

To read the petition for writ of certiorari in Fieger v. Michigan Grievance Administrator -- a case asking whether an attorney has a First Amendment right to publicly express non-defamatory personal criticism of a judge click here.

Top State Court Denies Fieger Request to Postpone Reprimand
Majority of Justices Say the Action Will Not Harm
His Ability to Practice Law as He Makes an Appeal

Lansing-- The Michigan Supreme Court on Thursday denied lawyer Geoffrey Fieger's request to postpone disciplinary action against him for vulgar comments about judges, and the case again exposed the long-standing animosity among Republican justices.

The majority said Fieger would suffer no "irreparable injury" if his reprimand stays in place while he appeals to the U.S. Supreme Court.

The court in July had reprimanded Fieger, which doesn't affect his ability to practice law.

In her dissent Thursday, Justice Elizabeth Weaver accused four other GOP justices of imposing secrecy around the court's operations when they issued a Dec. 6 order to keep confidential justices' internal communications involving cases.

Weaver wrote that the order was a "gag order" showing the "majority of four's increasing advancement of a policy of greater secrecy and less accountability."

She accused them of using the order to suppress her dissent before changing their minds Thursday and allowing it to be published.

Chief Justice Clifford Taylor and Justices Maura Corrigan, Stephen Markman and Robert Young Jr. responded that Weaver improperly disclosed internal memorandums and deliberations in her "unprecedented" dissent.

Taylor wrote that he couldn't directly respond to Weaver's "selective and misleading disclosures" because of an obligation to honor confidentiality.

Taylor said the court will hold a hearing Jan. 17 on whether to retain the order keeping certain communications confidential.

He also said justices will consider what means of enforcement or sanction should be in place when a justices violates the rule.

Justices traditionally have not talked publicly about what is said during case deliberations.

Democratic Justice Michael Cavanagh said he didn't think Weaver's dissent violated the law.

The dispute partly stems from the high court's decision to reprimand Fieger for vulgar remarks he made on the radio about three state Court of Appeals judges.

At the time of the ruling, Weaver said Taylor, Corrigan, Markman and Young showed bias and prejudice against Fieger by not disqualifying themselves from the case.

The majority responded in the Fieger ruling that Weaver's criticism was "rooted in personal resentment."

Henry M. Coxe, III
President, The Florida Bar
Tallahassee
The Stuart News
December 22, 2006

Regarding the editorial ("Is this any way to honor judges?" Nov. 28), and the guest column by Barry L. Crane ("News flash: Florida's judges play politics," Dec. 1), to paraphrase Voltaire, I may disagree with what you say, but will defend to the end your right to say it.

The Florida Bar respects the editorial's encouragement of greater education of the electorate in voting on judicial merit retention. We conduct a statewide poll of lawyers — who are most familiar with the qualifications of Florida's judges — prior to each retention election as a public service to voters.

But we continue to look for additional ways to evaluate judges in both their selection and retention, with the goal of having the highest quality judicial officers possible.

However, the Bar has no such respect for the guest columnist's attack on four respected judges of the 4th District Court of Appeal that suggests their decisions have been based on anything but the evidence and the law.

To suggest that any of these judges consistently take one side in a criminal case is nothing more than a skewed view of the writer. The opinions of each of these judges are a matter of public record and are based on the spirit of a fair and impartial judiciary devoid of political and special interest concerns.

Simply put, judges are bound to apply the laws as they now exist. Judges do not write laws; they must abide by them as they are written, even if they personally disagree with them. The bottom line is this: a judge's absolute duty is to follow the law and uphold it, and there are checks and balances in place to ensure judicial ethics are maintained.

By Scott McDonald Associated Press Writer
New York Lawyer
December 22, 2006

BEIJING -- A Chinese activist lawyer was convicted of subversion for posting political essays on foreign Web sites and received a suspended three-year prison sentence, a state news agency reported Friday.

Gao Zhisheng was detained in August amid a crackdown on Chinese lawyers who represent clients with grievances against the government regarding corruption, land seizures and other complaints.

Gao was convicted based on nine articles posted on Web sites abroad, the Xinhua News Agency reported, disclosing the details of the charges against him for the first time. It said the articles "defamed and made rumors about China's current government and social system, conspiring to topple down the regime."

Xinhua did not say when the verdict was handed down. Phone calls to the Beijing No. 1 Intermediate People's Court, where Gao's trial took place, were not answered.

Gao will be under supervision for five years, and if he breaks the law during that period the three-year sentence will be reinstated, Xinhua reported. He also was stripped of political rights for one year. Under Chinese law, such rights include free speech and the ability to gather or protest.

Xinhua said Gao's sentence was lenient because he "voluntarily reported others' offenses and provided important clues for cracking other cases."

Gao's one-day trial took place two weeks ago, but his lawyer Mo Shaoping was barred from attending on the grounds that it involved official secrets.

"I have still not received the verdict from the court," Mo said. "I shouldn't comment before seeing the verdict, but for the sentence I can say it is not heavy and within my expectations. If the sentence is suspended, he could be released on bail very soon."

Xinhua said articles cited at Gao's trial had titles such as "Three Open Letters to Hu Jintao and Wen Jiabao," referring to China's president and premier, and "The Regime Has Never Stopped Killing People."

It said they appeared on Web sites such as the Falun Gong-affliated Epochtimes.com.

Gao also gave interviews to foreign media "and the records of his seditious talks were made into audio programs and posted on their Web sites for online listening and downloading," Xinhua said.

The Chinese government has been tightening restrictions on lawyers this year in an apparent effort to contain a surge in politically sensitive cases. The new restrictions require lawyers to follow government guidance in handling cases, to avoid talking to foreign reporters and to discourage clients from protesting.

A group of more than 50 foreign scholars and human rights campaigners issued a public appeal in October for Beijing to stop harassing activists, citing the cases of Gao and others.

The Michigan Supreme Court on Monday reprimanded an outspoken lawyer for "vulgar and crude" attacks against appeals court judges, whom he likened during radio appearances to Nazis.

The court voted 4-3 to reprimand Geoffrey Fieger for twice appearing on Detroit-areas radio shows in 1999 and calling state Court of Appeals judges "jackasses" and other names. The judges had angered Fieger by overturning a $15 million medical malpractice judgment he had won.

Fieger -- best known for defending assisted-suicide advocate Jack Kevorkian -- also likened the judges to Adolph Hitler and other Nazis.

Fieger argued he and other lawyers have a First Amendment right to publicly criticize judges. The Michigan Attorney Discipline Board agreed in a 2004 ruling, but the grievance board that filed the complaint against Fieger appealed to the state's high court.

In the majority opinion, Chief Justice Clifford Taylor concluded Fieger's broadcast remarks were "nothing more than personal abuse."

The dissent said Fieger's speech was political and should be protected under the U.S. Constitution.

The reprimand does not affect Fieger's license to practice law. His attorney promised an appeal to the U.S. Supreme Court.

By Robert Napper
Highlands Today
Mar 21, 2006

SEBRING, Fla. - A Sebring attorney has been reprimanded and placed on probation by the Florida Supreme Court for swearing at prosecutors and writing a scathing letter to a local judge on an open case, according to court documents.

The Florida Supreme Court formally reprimanded longtime Sebring defense attorney Steve Kackley and placed him on two years probation with the Florida Bar.

Kackley is still allowed to practice law in the state of Florida, but has been ordered to complete the conditions of his probation, according to Kenneth Bryk, who investigated Kackley for the Florida Bar.

The Florida Supreme Court ruled Kackley must contact Florida Lawyers Assistance Inc. for an evaluation. Florida Lawyers Assistance provides "assistance to bar members who suffer from substance abuse, mental health, or other disorders which negatively affect their lives and careers," according to its Web site.

If treatment is recommended as a result of the evaluation, the court ordered Kackley to enter into a rehabilitation contract with Florida Lawyers Assistance.

The Supreme Court also ordered Kackley pay a registration fee of $250 and probation monitoring fee of $100 a month to the Florida Bar. Kackley was also ordered to pay the Florida Bar $2,805.48 for investigative costs.

The Florida Bar’s investigation documents a letter Kackley wrote to then Highlands County Judge Peter Estrada on Dec. 12, 2003, expressing outrage over a ruling Estrada made against his client, putting her jail. Estrada has since been appointed as circuit judge in Highlands County.

At the time of the letter, the case was still pending in front of Estrada, which violated Florida Bar rules, according to court documents.

"Judges like yourself still think like prosecutors, the easiest answer is to put them in jail rather than take the time and give each and every case the attention it deserves," Kackley’s letter to Estrada said, according Bryk’s report.

"You are more concerned with pleasing the probation officer than doing your job as an impartial judge," the letter said.

Kackley wrote to Estrada that his ruling "was not only a miscarriage of justice, it was downright immoral."

The reprimand and probation also stemmed from two incidents in 2003 when Florida Bar officials say Kackley yelled and swore at state prosecutors and a probation officer with regard to cases he worked on.

Kackley expressed frustration over the ruling, pointing out to the Florida Bar numerous cases in which attorneys did much worse without punishment. He said completing probation will not be a problem.

"They do what they have to do. I felt like my client was being mistreated and lost my temper. Sometimes it goes with the territory if you are a good defense attorney. I am sorry it happened," he said.

Kackley said he sent the letter to Estrada as a concerned citizen and made a mistake by referencing a pending case.

"I was not trying to influence him on the case. I just wanted to set up a meeting to discuss some concerns I had with the judicial system in Highlands County. I know all of the judges in Highlands County, have practiced in front of all of them, and have the highest respect for them," said Kackley.

A constitutional battle involving a lawyer's right to insult a judge has been joined at the Michigan Supreme Court, which could set new limits on what lawyers say and do outside the courtroom.

And at the center of it all is Geoffrey Fieger, the outspoken former attorney for assisted-suicide doctor Jack Kevorkian.

Fieger faces a reprimand from the Michigan Attorney Grievance Commission for insulting three state appellate judges on a radio talk show in 1999 after the judges overturned a $15 million verdict he won in a medical malpractice case.

According to the grievance commission, Fieger used numerous obscenities, called the justices "three jackass court of appeals judges," declared war on them and referred to them as "Nazis."

Big deal, argued Fieger's lawyer, Michael Alan Schwartz, maintaining that Fieger's comments outside the courtroom are protected by the First Amendment.

"There's no law that says you've got to be dignified," said Schwartz of Schwartz, Kelly & Oltarz-Schwartz in Farmington Hills, Mich. "Why are they looking to Fieger and what did he do that was so terrible? He made some uncharitable comments about a couple of judges in the course of a radio program."

But according to the grievance commission, Fieger violated two Michigan rules regarding professional conduct, including a "courtesy rule," which is unique to Michigan and requires that lawyers treat judges with respect and courtesy.

"We all agree that attorneys have the right to criticize judges. There's no doubt about that ... . They just have to do so in a professional way," said Robert Edick, deputy administrator for the grievance commission.

Edick said the commission is asking the state high court to draw the line between an attorney's right to free speech and an attorney's obligation to courtesy and professionalism.

"This is more of a very pure courtesy case," said Edick, adding that the commission also wants clarity on whether it can "prosecute lawyers for repeated public acts of discourtesy."

In 2004, the state Attorney Discipline Board ruled that Fieger's comments were protected by the Constitution. But the grievance commission believes Fieger went too far with his antics and has appealed to the Michigan Supreme Court, which heard arguments from both sides last week.

Attorney George Kuhlman, ethics counsel with the American Bar Association, said there is no ABA rule that specifically says that a lawyer's statements cannot be disrespectful of the court. He noted that there is an ABA rule that prohibits lawyers from using reckless disregard or making a false statement about a judge's integrity.

Kuhlman also noted that disciplinary boards can call into question the private conduct of lawyers, particularly if it reflects on their fitness to practice law.

"Of course you can go after somebody for saying something about somebody outside a courtroom," Kuhlman said. "It doesn't matter where it occurred. It could be on an island [in] the south Pacific. If it reflects on the lawyer's fitness to practice law ... it could be a violation of the rules of professional conduct."

In the Fieger case, Kuhlman said that it will be up to the court to decide whether Fieger's comments were protected by the First Amendment. He said case law on such matters tends to go in the direction of the First Amendment.

Kuhlman cited a 1995 ruling from the 9th U.S. Circuit Court of Appeals, which cleared an attorney, who had called a judge anti-Semitic, of any wrongdoing. The 9th Circuit held that the accusation of anti-Semitism was protected because the lawyer gave a factual basis for his opinion. Standing C Committee on Discipline v. Yagman, 55 F.3d 1430.

Meanwhile, Schwartz said he too has plenty of case law to back up Fieger's First Amendment claims.

He cited the U.S. Supreme Court's 1947 Craig v. Harney decision, in which the high court ruled in favor of a group of individuals who were held in contempt for publishing derogatory articles about a judge.

Schwartz said that if the Michigan Supreme Court rules against Fieger in this case, that would have "a chilling effect on an attorney's ability to engage in criticism of government officials.

"That's what we're talking about here. Judges are government officials, and once we allow people to be harmed for criticizing government officials, we've lost an enormous bunch of freedoms," Schwartz said. "That's pretty, pretty, pretty bad."

Lawyer's Criticism of Judge on "Secure"
Internet Site Lands Him in Ethical Thicket

Brian F. Labovick was shocked to receive a letter from Palm Beach Circuit Judge Diana Lewis, saying that she’d received a copy of a critical note about her that the Jupiter attorney had posted on a confidential Internet forum.

In the letter, Lewis who was presiding over an auto negligence case Labovick was handling indicated that she had received a copy of Labovick’s Web posting from an anonymous source. She included the posting with her letter, but offered no comment on it.

In the posting to the 200-member discussion group run by the Palm Beach County Trial Lawyers Association, Labovick criticized a modified voir dire procedure the judge had used.

Now the posting, and Judge Lewis’ response, have triggered an unusual ethics controversy. The Palm Beach County Trial Lawyers Association has hired a forensic expert to investigate who may have breached the Web discussion group’s confidentiality rules. The association’s board is considering lodging a complaint against the perpetrator with Chief Palm Beach Circuit Judge Kathleen Kroll.

The association also is considering seeking Florida Bar sanctions against the perpetrator. The association declined to say on what formal grounds it might bring its complaint. All members of the discussion group, called Trial Talk, had signed an oath promising not to disclose anything from the Web site to nonmembers.

""If a lawyer did it and lied about it, he could be subject to discipline," said site founder Walter C. Jones IV, a Palm Beach Gardens lawyer. "He wouldn’t be disbarred or anything, but the candor of the site is compromised when its security is violated.""

The underlying auto negligence case, Guertin-Sykes v. Jinn, was tried in September. It concluded with a jury verdict for the defense. The defense has filed a post-trial motion for attorney fees and costs.

Judge Lewis declined to comment on any aspect of the controversy on the grounds that the auto negligence case is pending. The Daily Business Review could not obtain either Lewis’ letter or Labovick’s Web posting.

In an interview, Labovick declined to go into any detail about his Web criticism of Judge Lewis or her new voir dire procedure, saying his comments were confidential. Since receiving her letter, he said, he has had no discussion with the judge about the posting.

"I don’t know how the judge gained access to it," Labovick said. "She sent me a very factual note that said to one effect or another that she had seen it. I would not speculate on her motives in sending me that note."

Labovick said Judge Lewis also sent the letter and enclosure to the other lawyer in the case. "So it might be that she was simply adhering to judicial ethics that forbid her from ex parte communication with anybody in a case before her," he said.

Neither of the two defense lawyers in the case James Munsey of North Palm Beach and Cymonie S. Rowe of Boca Raton returned a call for comment.

Coral Gables attorney David Deehl, of Deehl & Carlson, who served for a decade on The Florida Bar’s professional ethics committee, said Judge Lewis "probably" behaved appropriately in notifying both sides in the case that she had received a communication from a third party regarding Labovick.

But Deehl, who’s not involved in the case, said that without knowing the precise content of Labovick’’s Web posting and Lewis’ letter he couldn’t say whether any Bar ethics rule was violated.

Anthony Alfieri, director of the University of Miami law school’s Center for Ethics and Public Service, said there are at least four levels of ethics issues that need to be explored in the case Labovick’s original Web posting, the disclosure of the posting, whether opposing counsel participated in the disclosure, and whether Judge Lewis’ letter to the lawyers violated judicial canon.

Another ethics question is whether Labovick told his client in the auto negligence case about the incident with Judge Lewis and the potential for it to impact the case. One lawyer who did not want to be identified said Labovick is obligated to consult with the client. Labovick did not return a second phone call to discuss this issue.

According to one attorney who did not want to be identified, the issue raised by Labovick in his Web posting centered on how Judge Lewis chose to interview prospective jurors.

Normally, the members of the jury pool are interviewed in one large group, and if a juror makes a comment that could taint the rest of the pool, the judge will call that individual up for private questioning by the plaintiff and defense sides.

But given the courts’ budget and time constraints, judges face growing pressure to avoid having an entire jury pool tainted by an individual’s comments and then being forced to call another large bloc of potential jurors for voir dire.

To avoid that situation, Judge Lewis reportedly asked potential jurors to come up individually for questioning on hot-button issues such as their feelings about insurance companies, then she had them return to the general pool for other types of questions. That apparently is what Labovick complained about.

Judge Lewis, 52, a former shareholder at Carlton Fields who was elected to the bench in 2002, attended Notre Dame University law school with a number of current members of the trial lawyers’ discussion group.

West Palm Beach attorney David Prather said that he has high regard for Judge Lewis but said his view is not universally held in the Palm Beach County Trial Lawyers Association, of which he is a member.

Some members who have appeared before Lewis, he said, have been critical of their "perceived treatment" in her courtroom. He declined to elaborate.

In the Palm Beach County Bar Association’’s 2005 survey of its members’’ views of local judges, 29.5 percent of respondents rated Lewis’ demeanor and courtesy to lawyers excellent, while 36.5 percent said she needs improvement. Only three other judges received higher "needs improvement"" scores on demeanor.

On knowledge of the law, Lewis was rated excellent by 46.8 percent, and on impartiality was rated excellent by 46.2 percent.

The Trial Talk Web site started by the Palm Beach County Trial Lawyers Association on Yahoo! about five years ago is supposed to be secure and access limited to members of association members, Jones said.

Members can get access only through use of a private password, and they’re sworn to secrecy about its contents, said Prather, a plaintiff lawyer and associate at Lytal Reiter Clark Fountain & Williams.

The Web site is similar to professional discussion sites operated by trial lawyer groups in Florida and around the country, and similar to sites operated by professionals in other industries, Jones said.

The site’s purpose, Prather said, is to provide members with information and insights that can help them serve clients. Only lawyers who solely represent plaintiffs are permitted to use the site.

"It’s not a forum designed for people to criticize judges, although you might see some constructive criticism on it occasionally," Prather said.

Its purpose, he said, is to "promote the free flow of productive information information on orders, on the tendencies of certain judges in certain sorts of rulings, on how various judges handle jury selection. It provides information on expert witnesses. People can ask other members if any of them have depositions from this expert or that one."

"It’s a secure site," Jones said. "The FBI could get in, I suppose. But the average person couldn’t hack that site."

A letter describing the incident has gone out to all members of the discussion group. Prather said he considers the breach of confidentiality to be an ethical violation by the perpetrator.

"We’re concerned now that if we say things [on the Web site], it’s going to be leaked to everyone, including the news media," Jones said. "It definitely puts a chill on it."

Labovick said his posting did not represent "a personality issue" between himself and Judge Lewis. It was "a warning to other members that this is the way Judge Lewis is now doing this in her courtroom. That’s all it was."

By Thomas B. Scheffey
New York Lawyer
The Connecticut Law Tribune
August 15, 2005

In Connecticut’s first case on the subject, a judge has ruled that a lawyer should not be fired for trying to follow the Rules of Professional Conduct, because doing so constitutes an "important public policy" exception to the employment-at-will doctrine.

New Haven Superior Court Judge Carmen Lopez rejected the arguments of Guilford-based Delaney, Zemetis, Donahue, Durham & Noonan, which fired associate Bruce Matzkin after he sought to grieve another lawyer for suspected witness tampering.

"Because the legal profession is self-regulated and relies upon its members to police itself, no lawyer’s employment should be conditioned upon turning a blind eye to violations of the Rules which are applicable to all lawyers," Lopez wrote.

Matzkin claimed a firm partner told him "we do not grieve other lawyers," when he attempted to get permission to report to bar authorities that a trial opponent called witnesses Matzkin had subpoenaed, telling them they need not come to court.

Matzkin says he considered it witness tampering, and believed he had a duty under Rule 8.3(a), which requires reporting any violation of the ethics rules "that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer ..."

The firm, represented by name partner Patrick M. Noonan, argued in its motion to strike that the ethics rule "