Thursday, December 20, 2007

The first amendment and the Florida Bar

DISCLAIMER: I'm not an attorney. Perhaps SrCohiba can add his thoughts, since he is.

Received an email today from David Bruce Smith with a link to this Daily Business Review article about the kerfuffle regarding a Ft. Lauderdale criminal defense attorney named Sean Conway who called a judge a "unfair witch" and "seemingly mentally ill"on his blog . The Bar association is charging him with ethics violations and this has become a big conundrum about the first amendment and whether Conway is being illegally muzzled.

We've often debated the first amendment on this blog because we moderate comments and some see that as a sign that we don't believe in what we preach, free speech. But the first amendment was created to protect the people from an overreaching government, not other private citizens. You can say whatever you want, you just can't say it in my house.

You can also try this little experiment: walk up to your boss and tell him how much of an asshole he is. When he fires you, try to sue him for infringing on your first amendment right to speech.

The article explores the idea of whether lawyers give up certain rights when they join the Bar. Now I don't know specifically regarding the Bar but it seems to me that when you join an association, professional or otherwise, you are agreeing to play by the rules of that association. You are in a sense giving up some rights you may have outside of the association to be a part of it.

The Bar has determined that personal attacks on other members of the Bar and judges are not kosher. That doesn't mean they can't be critical of the actions or rulings of those members or judges.

My question is this: If Mr. Conway were trying a case and he called a witness a witch would it be permitted by the judge? My guess is no. An attorney's job is to argue the merits of the case and the evidence without prejudice. So certain types of statements are unacceptable from attorneys in a courtroom. If you can't win your case without insulting a witness or the defendant you must be a pretty lousy attorney.

The point is that Bar is charged with a responsibility to maintain the credibility of the judicial process in our country by insisting that those that operate within it live by a higher standard than everyday citizens. The Bar certainly restricts many types of behaviors that would be permissible in other fields of endeavor.


Srcohiba said...

I had actually written about this on the now defunct SOTP when they were trying to argue this is a 1st amendment issue. It is an issue of the rules regulating the Florida bar and the decorum of attorneys.

not a 1st amendment issue at all.

Tomás Estrada-Palma said...

Yes there is a difference between free speech and a license to say anything to anybody that you choose.

Alex said...

Where you are wrong is that "joining" the Bar is not optional. You don't have a chance to "agree". If you want to work as a lawyer, you have to be a member in good standing of the Bar, period. It's mandatory, not voluntary like working at a particular company or for a particular boss. The FL Bar is an agency of the government, not a private association.

So one could argue that by having regulations restraining their free speech, the state is unreasonably restraining their right to make a living as well.

This has been tested before (e.g: lawyers who advertise in a manner which the Bar didn't like) and the Bar has lost.

In addition, the lawyer in question followed the Bar regulations to complain against the judge. His other comments were made outside of court and outside the practice of law. If that's the standard, then any lawyer who has ever called another a scumbag in private would have to be disciplined. Ergo, no lawyers.

Henry Gomez said...

First of all nobody forces you to become an attorney. The rules of the bar are well established and advertised BEFORE you choose that profession. Secondly, what are then saying is that any government employee can say anything anytime he wants. Scooter Libby begs to differ.

Henry Gomez said...

And another thing, just because he did in fact follow the protocol for complaining about the judge does not in any way then give him license to go outside the protocol.

And really, if the only way this guy thinks he can win the argument is by using ad hominem attacks on the judge how good a lawyer can he be? I mean these guys are supposed to warriors of words. What he did was weak.

Alex said...

Yeah well, nobody forces you to be an American citizen either so your rights aren't guaranteed. That's a ridiculous argument. Scooter Libby committed perjury and obstruction of justice. Baseless comparison.

If you want to say "any government employee can say anything about other people in government", then yes that's true. Especially if they do it as private citizens, in their private time. It happens all teh time. You should be defending that position if you really believe in liberty.

The bar is not a private club, it's a government institution. But what's really going on is that the bar overseers are a bunch of old stuffed suits who are part of the same chubby club as judges are, and they protect and prop each other. How do you think judges get elected? Who finances their campaigns and who votes for them?

As far as the guy being a good lawyer; as I said, he filed a complaint before he wrote the "witch" comment in his blog -and way before the judge had already made clear to him his clients weren't going to get a fair shake in her courtroom. He had nothing to lose with the judge.

Henry Gomez said...

Scooter Libby committed perjury

Oh you mean like Bill Clinton. Seriously, Libby was accused of saying something he shouldn't have. Meaning there are things that are illegal for government employees to say.

And certainly there are rights that people in the armed forces sign away when they join. Their freedom of movement and speech is certainly restricted.

Practicing as an attorney is a privilege not a right. Just like having a driver's license. You agree to live under the rules that govern driving.

The reason the Bar has such rules is not satisfy the desires of stuffed suited old men. It's to preserve the dignity and respectability of one of the most important institutions in our country, the independent legal system. When the legal system becomes Stuck on the Palmetto we're in big trouble.

As you know, I'm not an attorney, but neither are you. I'll take Mike Pancier's word on it. I think he knows a bit about about constitutional law.

Plus we'll see what happens with Conway. Wanna make a bet?

Alex said...

I knew you were going to bring up Clinton. Fine. But Libby didn't say "things that are illegal for government employees to say." He lied under oath. That's very different than this case.

The Army: another bad comparison. Conway is not in the Army. There are reasons why movement is restricted for military personnel (speech is not BTW, aside from secrecy. A soldier is free to criticize anything in the Army as long as he/she performs in the line of duty).

I don't get the SotP dig, but if you are so worried with respectability of the judicial system, then you should be more worried about Judge Aleman's disregard for defendant's rights AND her waste of taxpayer's money -when she forced appointed public defenders to request continuances, that costs ALL OF US money. BTW, Aleman was just reprimanded for he conduct in court.

I'm not a lawyer and you are free to take Pancier's word. I'll take the many lawyers who have said this is clearly a 1st amendment case. Yes, being a lawyer is a privilege just like a driver's license, does that mean the state can deny you a driver's license unreasonably? Of course not. It'll be tested just how much the bar can restrict speech. Bets? What do you want to bet? I know Conway will get a slap in the wrist so that's not in dispute. The Bar is pretty much its own regulatory body. It's not likely they will rule against themselves. Now THAT is a crappy system.

Henry Gomez said...

I knew you were going to say Libby wasn't convicted of exposing Valerie Plame, but it was what caused the investigation.

I'm pretty sure that the code of conduct for attorneys wanting to practice in Florida is pretty well established.

The Dig at SotP was gratutious but the point is the Bar is not the blogosphere and the bar can require its attorneys to live by a code of conduct outside of the working environment just like any employer can.

Worrying about Conway's inappropriate remarks and judge Aleman conduct on the bench are not mutually exclusive propositions and you know it. You're too smart for that. One does not excuse the other. There are ways to denounce and get rid of bad judges and calling them a witch on your blog is not one of them.

Henry Gomez said...

Conway, will be slapped on the wrist and it won't be because he criticized a judge. It will be because of the way he did it. He violated the code of conduct that he agreed to when he joined the bar. If he didn't like the code of conduct he had the option to sue the bar before he joined it. He knew what he was doing. Either that, or he's the world's worst attorney.

And Pancier just got the frivolous lawsuit against Marta Flores (by Gen. Rafael del Pino) dismissed. He said she violated his first amendment rights. Yeah, I'll take his opinion. He also advised me regarding mr. ACLU's (John de Leon) threatening letter. Yeah, I'm gonna take his word on it.

Alex said...

I'm not doubting Pancier's qualifications (Del Pino's lawsuit, from what I know, had no chance). But if you read the many press accounts of the Conway case, you'll see there are constitutional rights lawyers on both sides, interpreting the law in both ways. It's not cut and dried. It has to be tested, that's what is all about.

(BTW, among the ones saying Conway is not protected is Miss ACLU, Linda Rodriguez-Taseff, the previous president)

The code of conduct: nobody is disputing they can't regulate conduct, is the extent to which they can regulate that's in dispute. What Conway said (or an equivalent) has been said many times by attorneys about judges in private or even in the press, with little consequences. I can't find another case and attorneys interviewed for the story say the provisions are rarely enforced. What makes this interesting is that it involves a blog and blogs have been very controversial in the judicial community.

Re. Libby: Libby got in trouble not because of revealing Plame's identity but for covering up who did in an investigation, which is a crime. In addition to that, revealing her identity was a crime or technically supposed to be, depending on her status at the time. Armitage didn't get indicted, so the special prosecutor must have determined it wasn't.

But the difference with Conway is twofold: Libby was a government employee, Conway is not. And Libby was cleared for receiving confidential information which Conway was not and didn't. Revealing confidential information is not protected under the 1st amenmendt. Two completely different cases. But you are smarter than that, so let's not argue Libby anymore.