Attorney Calls Judge "Evil Unfair Witch" on Blog, Gets Ethics Probe (MORE, CLICK HERE)

Attorney Who Called Judge an "Evil Unfair Witch" on Blog Fights Ethics Probe

By Jordana Mishory
Daily Business Review - New York Lawyer
December 20, 2007

Do lawyers check their free speech rights at the courthouse steps?

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.

The controversial judge is facing her own disciplinary proceedings.

Haddad said Conway's situation is "absolutely absurd."

"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."

Conway acknowledged he may be a test case for the Bar.

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." 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.