Fla. lawyer: I’ve got every right to call judge an “evil, unfair witch”

by Walter Olson on July 29, 2008

Fort Lauderdale, Fla., criminal defense attorney Sean Conway claims he was within his First Amendment rights and should not face disciplinary action over his blog comments calling one of the judges he practices before an “evil, unfair witch” who is “seemingly mentally ill”. (Jordana Mishory, “Attorney Argues His ‘Witch’ Comments About Judge Are Protected Speech”, Daily Business Review, Jul. 16; earlier). To me, this seems rather to miss the point: sure, almost everyone but a member of the local bar enjoys or should enjoy a First Amendment right to call a judge an evil, unfair witch. Lawyers admitted to practice, however, enlist as “officers of the court” with special obligations, among which may be (to name only one) to avoid the sorts of displays of enmity that might complicate future cases before that judge, as by provoking recusal. For an extreme instance, see the Geoffrey Fieger episode recounted here, here, here, and here. More on what lawyers can say about judges from Bruce Campbell (Campbell & Chadwick) at Texas Lawyer.

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1 Brad Ford 07.29.08 at 11:15 am

While calling her a “witch” was a juvenile choice of words, all of us (even attorneys) have the right to criticize elected officials. Provided he did not do it in court or otherwise disrupt court, he should not have been disciplined.

While judicial immunity makes many judges “above the law,” judicial robes cannot, and should not, protect a judge from critics.

2 OBQuiet 07.29.08 at 3:23 pm

But as was pointed out, the specter of recusal makes this open to gaming. You draw a judge you know will not be favorable to your arguments and you publicly disparage them and then demand a new one since you one you insulted may not be fair.

3 ras 07.29.08 at 8:17 pm

It would seem to me that disallowing recusal (unless the judge has in some way responded *threateningly* to the original commentary) would be a better approach:

1. It preserves freedom of speech;

2. No slippery slope of “what’s allowed, what’s not” need be embarked upon;

3. It discourages rude behavior by the lawyer; after all, if you truly believe ,as in this example, that the judge is evil and vindictive, then you would be certain not to insult him/her in the first place (and if you did, then almost by definition your actions indicate that you nonetheless expect fair hearings in spite of your comments);

4. You eliminate the gaming described by OBQuiet while preserving the necessary ability to subject judges to criticism from those who see them up close.

5. If the purpose of the existing policy is to improve respect for judges, why would I respect them if a single harsh comment is considered, in the eyes of the law, enough to make them forsake their duty in favor of a vendetta?

4 Michael Masinter 07.30.08 at 8:09 am

The bar did not charge Conway with making comments that sought to manipulate recusal practice; it charged him with violating this rule:

“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, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.”

The ACLU’s amicus brief cogently explains why the first amendment protects Conway’s Halloween eve blog post; read it at http://jaablog.jaablaw.com/files/34726-32374/aclu_amicus.pdf

The particular judge repeatedly sought to deprive criminal defendants who appeared in her court of their speedy trial rights; Conway posted comments disparaging her practice in a blog whose audience was local attorneys. Political hyperbole (calling her an evil unfair witch on Halloween eve) has been part and parcel of our political culture since before the revolution. The ACLU is right; Conway made no false statements, and should therefore not be subject to discipline.

Finally, the recusal manipulation concern is unfounded. Judges must recuse themselves when they reasonably may be seen to be biased against a party, not against his lawyer. Cases routinely reject recusal motions that rest on out of court statements made by counsel critical of a sitting judge precisely because a contrary rule would give counsel veto power over the judge assigned to a case.

5 Cyrus Sanai 08.02.08 at 2:57 am

This is not even a close question. Calling a judge a “witch” or “evil” is a statement of opinion, not fact; it does not violate the bar rule, is not defamatory, and is perfectly appropriate outside of court.

Before a judge, an attorney must always be respectful and civil to him or her, and the same goes from the judge to the attorney. Outside, attorneys are perfectly entitled to use strong language to condemn judicial corruption, misconduct, or intentional error. Judges are public officials, and they must endure criticism stoically.

I don’t even understand what this provoke recusal point means. It is well established that a party or attorney cannot use his or her intentional act towards a judge as grounds for disqualification. If the judge is so thin-skinned that he or she loses composure towards a party or attorney who has aimed sharp comments at the judge, then that judge needs to get off the bench.

6 Ron Miller 08.22.08 at 12:26 pm

Tough issue. My feeling is that the problem is not the gist of what was said but the way that in which it was said. I’ve never had the guts to do it but I would love to call out judges who treat parties and lawyers without respect or use their power for the sake of it (I could go on and on). But if I ever do, it would be analysis of the facts and opinions without emotionally charged words. But that is easy for me to say because I’m not a big fan of emotionally charged speech. It is just a really tough issue. I think it is just stupid and unprofessional to say what he said and I condemn it. Should it be sanctionable? I really don’t know.

7 Gary L. Zerman 09.14.08 at 1:00 pm

Anyone interested in this issue should check out Huminski v. Corsones, 396 F.3d 53 (2nd Cir. 2005) to see how retalitory and abusive judges and the system (the court clerk and sheriff acted in concert) – that is supposed to serve the People – actually can be. See also Cannon v Commission on Judicial Performance (1975) 14 Cal.3d 678, Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)and Soliz v. Williams (1999) 74 Cal.App.4th 577. GLZ.

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