ATTORNEYS CAN BE SANCTIONED FOR CRITIZING A SITTING JUDGE – KENTUCKY HAS LONG ZIPPED LAWYERS LIPS….

September 12, 2009  New York Times

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in the future, as young people who grew up with Facebook and other social media enter a profession governed by centuries of legal tradition.

“Twenty-somethings have a much-reduced sense of personal privacy,” Professor Gillers said. Younger lawyers are, predictably, more comfortable with the media than their older colleagues, according to a recent survey for LexisNexis, the legal database company: 86 percent of lawyers ages 25 to 35 are members of social networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. For those just out of law school, “this stuff is like air to them,” said Michael Mintz, who manages an online community for lawyers, Martindale-Hubbell Connected.

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200.

That penalty is light compared with the price paid by Kristine A. Peshek, a lawyer in Illinois who lost her job as an assistant public defender after 19 years of service over blog postings and who now faces disciplinary hearings as well.

According to the complaint by officials of the state’s legal disciplinary body, Ms. Peshek wrote posts to her blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the identities of clients and confidential details of a case, including statements like, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ ”

Another client testified that she was drug free and received a light sentence with just five days’ jail time, and then complained to Ms. Peshek that she was using methadone and could not go five days without it. Ms. Peshek wrote that her reaction was, “Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me?”

The complaint, first noted by the Legal Profession Blog, said that not only did Ms. Peshek seem to reveal confidential information about a case, but that her actions might also constitute “assisting a criminal or fraudulent act.”

Ms. Peshek declined to comment, citing the pending inquiry “for which I am currently seeking representation.”

Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower court because of his blog postings as a juror. According to a decision published recently in the California Law Journal and picked up by the Legal Profession Blog, Mr. Wilson, while serving on a jury in 2006, posted details of the case on his blog. Any juror who blogs about the details of a trial risks trouble and even civil contempt charges. But lawyers like Mr. Wilson also face professional penalties that can threaten their livelihood.

Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. He said that warnings not to discuss the case did not ban blogging; the bar disagreed. Mr. Wilson also had not disclosed during jury selection that he was a lawyer. In an interview, Mr. Wilson said he had not been working as a lawyer at the time and had only been asked his occupation.

Judges, too, can get into trouble online. Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in California, was investigated for off-color humor that was accessible on his family’s Web server, though not intended to be public. He was cleared of wrongdoing, but a three-judge panel admonished him for not safeguarding the site, which they said was “judicially imprudent.”

Of course, some lawyers’ online problems are the same as everyone else’s, like getting caught in a fib. Judge Susan Criss of the Texas District Court in Galveston recalled in an interview a young lawyer who requested a trial delay because of a death in the family. The judge granted the delay, but checked the lawyer’s Facebook page.

“There was a funeral, but there wasn’t a lot of grief expressed online,” Judge Criss said. “All week long, as the week is going by, I can see that this lawyer is posting about partying. One night drinking wine, another night drinking mojitos, another day motorbiking.” At the end of the delay, the lawyer sought a second one; this time the judge declined, and disclosed her online research to a senior partner of the lawyer’s firm.

Judge Criss, who first told the story at a panel during an American Bar Association conference, said that the lawyer has since removed her from her friends list.

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately concluded that his online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system. And so, the court concluded, the statements “fail as protected free speech under the First Amendment.”

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Kentucky has established a standard of conduct for lawyer which restricts their comments about a sitting judge.

Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980)

   We have previously, yet infrequently, had occasion to review charges of professional misconduct by attorneys who by their conduct and comments chip away at public confidence in the integrity of the judicial system. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321 (1955) the attorneys involved charged in pleadings and in the local newspaper that a change in the assignment of special judges was politically motivated. We recognized that an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence. The attorney “owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes.” KSBA v. Lewis, supra, at 324. Recently, in KBA v. Nall, supra, we applied this rule to an attorney who described a proceeding before a hearing officer of an administrative body as a “mere farce” and a “Kangaroo court” during a radio station interview. Insolent, impudent, and derogatory conduct can only serve to bring the judicial system into discredit in the public mind. Kentucky Bar Association v. Getty, Ky., 535 S.W.2d 91 (1975) cert. denied, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636.

        We are not alone in our opinion that by coming to the bar an attorney incurs the ethical obligation not to bring the bench and bar into disrepute by unfounded public criticism. “Our system of justice rests upon the mutual regard of the bench and bar.” Matter of Frerichs, supra at 766. “(I)n the case of a lawyer an abuse of the right of free speech may be some index of his character or fitness to be a lawyer.” In re Lacey, S.D., 283 N.W.2d 250, 252 (1979) quoting In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644, 57 A.L.R.2d 1355 (1956). “Nor does free speech give a lawyer the right to openly denigrate the court in the eyes of the public.” In re Raggio, 87 Nev. 369, 371, 487 P.2d 499, 500 (1971). See also, In re Glenn, 256 Iowa 1233, 130 N.W.2d 672, 12 A.L.R.3d 1398 (1964); ABA Code of Professional Responsibility, EC 8-6; Annot., 12 A.L.R.3d 1408; Annot., 56 L.Ed.2d 841, 855-69. But see, Justices of the Appellate Division v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973); State Bar v. Semaan, Tex.Civ.App., 508 S.W.2d 429 (1974); Polk v. State Bar of Texas, N.D.Tex., 374 F.Supp. 784 (1974).

        We conclude as did the Board of Governors that Respondent’s public attribution of “highly unethical and grossly unfair” behavior to a named sitting judge, a charge that Respondent knew, or should have known, was unwarranted, was unethical and unprofessional conduct tending to bring the bench and bar into disrepute and to undermine public confidence in the integrity of the judicial process. If the Respondent had had reason to believe in good faith that the trial judge had engaged in proscribed conduct, then the proper forum in which to have made his claim was the Judicial Retirement and Removal Commission as provided in our Constitution, Section 121, and in our rules of court, SCR 4.000-4.300.

Taking into account the sincerity of the Respondent, his relative inexperience at the bar, the emotional issue involved, and our recent disposition of a similar case, we concur with the recommendation of the Board of Governors that Respondent be publicly reprimanded. However, while two recent instances such as this one may be a coincidence, three would certainly indicate an unwelcome trend. It is enough to say that in the future a stiffer penalty may be imposed. See KSBA v. Lewis, supra.

Page 169

        ”(E)very lawyer, worthy of respect, realizes that public confidence in our courts is the cornerstone of our governmental structure, and will refrain from unjustified attack on the character of judges, while recognizing the duty to denounce and expose a corrupt or dishonest judge.” KSBA v. Lewis, supra, at 326.

        This court finds the Respondent, Robert L. Heleringer, guilty of unprofessional and unethical conduct which tended to bring the bench and bar of the Commonwealth of Kentucky into disrepute. He is hereby publicly reprimanded and directed to pay the costs of these proceedings.

        All concur.

 

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