Rule 4-8.2 of the Florida Rules of Professional Conduct, prohibits a lawyer from “making 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….” The commentary section of this rule notes that “assessments by lawyers are relied on in evaluating the professional or personal fitness of persons considered for election or appointment to judicial office….”. This section goes on to note, “Expressing honest and candid opinions on such matters contributes to improving the administration of justice.” Bottom line, if it is true, a statement concerning the qualifications or integrity of a judge is fair game. Let’s explore.
In 2006 Broward Defense Attorney Sean Conway criticized a local county judge, the late Cheryl Aleman, and utilized pretty colorful expressions in offering his opinion about her judicial conduct. Conway was frustrated that Judge Aleman scheduled trials immediately after arraignment and then made attorneys choose between going to trial (even if not given reasonable time to prepare) or requesting a continuance (in order to timely prepare) thereby waiving speedy trial. This excercise in free speech triggered a letter from The Florida Bar advising Conway of an investigation related to his remarks on JaaBlog.
The honest and candid opinion canvass Conway brushed colorful expressions on about Judge Aleman came from a word palette that included, “evil, unfair witch, malcontent, and mentally ill.” Depending on ones particular taste, it may not exactly be considered a VanGogh verbal work of art. Some argue, but it is free speech, no matter how uncouth. Others opine, yes but how do Ad Hominem attacks “improve the administration of justice?” Whether you agree or not with Conway’s choice of addressing a legitimate issue, to his credit he did not anonymously post (as most Free Speech “supporters” on Jaablog) his valid concern. That took courage. Even the most professional judicial polls are conducted anonymously. Why? Fear of reprisal from judges because after all they are only human. That’s right, most attorneys believe that if you offer an honest public critique of the judiciary in order to “improve the system” the gavel is gonna fall hardcore. Some fear the result may be, fairness and impartiality be damned from now on, how dare you judge me? Can we rely that a judge who we raise a legitimate issue about (again, they are only human) will recuse him/herself from the case thereafter if there is even a slight doubt of being able to remain impartial?
- “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” James Madison
Attorneys are human too. We also need to be kept in check. Let’s fight the good fight and do so honorably and with conduct that is exemplary. Let us appeal to the better angels of our nature. Let us not use our “free speech” to malign anyone. There is a proverb in the Cuban culture that goes, ” Lo cortés no quita lo valiente.” Translation, “Being polite does not mean you are weak.” You can call out questionable judicial conduct without compromising your conduct in the process. Last year I had an opportunity to speak to Sean Conway and he told me that although he opted against challenging the grievance further, notably, the Florida Supreme court inquired about the First Amendment freedom of speech implications related to his case. Eventually Conway accepted a reprimand and a $1,200 fine. Interestingly, Judge Aleman was also disciplined by the Judicial Qualifications Commission for being “arrogant, discourteous, and impatient to the lawyers appearing before her.”
Bill Gelin & Jaablog: He’s Got a First Amendment Right & He’s Not Afraid to Use It
The comment that led to Conway’s grievance was posted on Attorney Bill Gelin’s blog, Jaablog. Jaablog is both entertaining and thought provoking, worth the visit (viewer discretion is advised). Last year Gelin was also investigated by the Florida Bar for posts on his blog. South Florida Local News 10 ran the story. The grievances were submitted anonymously and Gelin wonders whether the complaints may have come from two local judges that he criticized, Judge Marni Bryson of Palm Beach County and Judge Robert Diaz of Broward County. If in fact the anonymous complaints came from judges, the irony. Judge not that thou be not judged. In contrast to Conway’s outcome, the Florida Bar found no probable cause in Gelin’s case. The truth set Gelin free. Heavy hitter and freedom of speech Attorney Norm Kent went to bat for Gelin. I’m sure Kent loves that metaphor. Looks like Kent hit it out of the park! Get this, Kent did it pro bono. Thank you for standing up for our right to free speech for free. Freedom isn’t free though.
“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.” Thomas Paine
My mother fled Cuba when she was just nineteen years old, alone. Her father, Julio Cepeda, whom she adored, fainted in the airport right before she boarded the plane. The cost, she was separated from him for 16 years, pales in comparison though to those who have died seeking liberty. My mom could have stayed and vocalized opposition to a dictatorial regime, she would have faced something far worse than a bar grievance I assure you. If you don’t like people like Gelin questioning the system then maybe living in places like Cuba are more to your liking. When I learned about Gelin’s investigation, I called him and asked, “How can I support you?” He suggested that I write an article but cautioned me against revealing my identity, he wanted me to guard myself against what he was going through. I opted against anonymity. I don’t think that fear and free speech were meant to go hand in hand and I don’t want to dwell in “The Land of the Muzzled and Home of the Gagged.” To you mom and to freedom!
Whether you agree with Gelin’s journalistic style or not, this gentleman has Chutzpah, and well what do you know, Gelin commented on a valid issue within the system. Consider former Circuit Judge Ana Gardiner, she resigned from the bench while the JQC investigated allegations that she had exparte communications with the prosecutor on a death penalty case. The Florida Supreme Court suspended the prosecutor for 2 years after finding that the prosecutor had exchanged over 1400 calls and texts with Judge Gardiner during a murder trial. Prior to the JQC investigation of Gardiner, Bill Gelin began to question her relationships with lawyers appearing before her and the possibility that criminal cases had been compromised. Gelin began to raise questions on his blog in response to news coverage by local reporter Bob Norman who wrote two articles about Gardiner, Judging Ana and Judge’s Gambit. Public commentary such as this is what I think the founding fathers had in mind in guaranteeing the freedom of both speech and the press.
Rule 4-8.2 does not shield judges from criticism, The Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001). It is vital in a free system of checks and balances that we speak up without fear to preserve and protect the constitutional principals the US is founded upon. So go ahead, cry aloud and spare not, but remember, always let truth be your guide. Reaction? FloridaYouJudge!