13 December 2007

Blawging Boundaries

While I have sometimes felt like the frustrated attorney whose blog is at issue in an attorney regulation proceeding in Florida, I make it a policy not to blog frankly and broadly about litigation in which I have personally been involved.

I personally don't think that this lawyer's case is one that justifies any sanction more serious than a public reprimand. He made some derogatory statements of opinion and some quite possibly true statement of fact that provide a basis for him having that opinion. Nothing was hurt but the judge's feelings. This was clearly not a civil way to present an opinion about a judge, but arguably the First Amendment even protects the questioned posts of this attorney. The First Amendment would clearly protect such a statement from a member of the general public not involved in the cases in question (assuming that the factual statements were true). But, the role of a lawyer as an officer of the court with duties to his client and the tribunal may constrain this right. More importantly, one of a lawyer's jobs coincident to getting good results for current and future clients is to not piss off the judge, as this almost never helps a client.

The trouble, of course, is that information about the judicial temperament of judges is one of great public concern. But, it is often a matter which only attorneys who practice before those judges are in a good position to evaluate. Not all judges perform their jobs in an model manner, and the public needs to known this because voters have a role in electing or retaining those judges in almost every state. Removing intemperate or unfair judges is the public's business. Getting this message to the public often takes bold words.

The alternative is for lawyers who don't practice before a judge, or the educated lay press, to observe the events in question and report upon them, possibly with the assistance of confidential lawyer sources. But, these steps only address the continuing and modern concern about not hurting a client. These steps do not address the archaic standard for comment about the judiciary by lawyers that is rooted in British sensibilities about respect for the court, and civility, that aren't consistent with modern American ideas about freedom of speech and freedom of the press.

2 comments:

Andrew Oh-Willeke said...

Update, the judge in question is also facing disciplinary charges.

Ken said...

"Not all judges perform their jobs in an[sic] model manner,"

Welcome to the real world, Andrew! That admission was LONG overdue (even though it would be far more accurate to say that most judges don't perform their jobs in a model or even competent manner); it's about time you found a pair and finally started calling spades spades.

So tell me, Andrew, what would you say about a group of judges who decided a case where they didn't have jurisdiction? What should they be required to do? Resign, and pay the victim restitution before they can even practice law again? I'd just like an abstract statement of principle here, 'cuz I know that you are scared sideways of judicial retaliation.