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Trash-talking about judges

Every now and then, every appellate lawyer gets a decision where he's tempted to go Geoffrey Feiger on the judges.  Feiger, best-known for defending Jack Kevorkian, had gone on a radio show in 1999, shortly after a Michigan court of appeals reversed a $15 million medical malpractice judgment he'd won, and called the appellate judges jackasses and Nazis.  (Intemperate language was hardly new to Feiger; when he ran for governor of Michigan in 1998, he labeled the incumbent governor a product of barnyard miscegenation, and asserted that "rabbis are closer to Nazis than you'd believe."  He lost the race by 24 points.)  After eight years of disciplinary proceedings, the Michigan Supreme Court held that Feiger's comments weren't protected by the First Amendment, and imposed a public reprimand.

A reprimand is also what was handed down to Sean Conway, a Florida lawyer who happened to write a post on a courthouse blog denouncing Judge Cheryl Aleman for her "ugly, condescending attitude," calling her "an evil, unfair witch," and suggested she was mentally ill.  That was prompted by her habit of scheduling trials in criminal cases one week after the initial pretrial.  Interestingly, the judge herself was given a public reprimand for being "arrogant, discourteous, and impatient to the lawyers appearing before her," such as, probably, giving defense counsel a week to prepare for trial.

Mark Gardner would have liked to be so lucky.  Back in 2003, after he got a decision from the 8th District he didn't like, he wrote a motion for reconsideration lambasting the panel for having "distorted the truth," having a "prosecutorial bent," and manufacturing a "gross and malicious distortion."  Disciplinary counsel suggested a public reprimand as a sanction, and the panel agreed, but the board upped the recommended penalty to a six month stayed suspension.  The Supreme Court went them one better, handing down an actual six-month suspension.

And if that isn't bad enough, you've really got to wonder what a lawyer can say about a judge after a couple of recent Supreme Court disciplinary cases.

Philip Proctor got hit up for $26,000 in sanctions for filing a frivolous lawsuit.   When Proctor filed a motion to vacate that judgment, the judge recused himself and transferred it to another judge, who denied the motion.  In a subsequent pleading, and in an appeal, Proctor alleged that the initial judge harbored a bias against him and had engaged in ex parte communications with the other attorney, and then had "gone to great effort to cover this up and/or deny that these things happened."  Although the court in Gardner held that "[u]nfounded attacks against the integrity of the judiciary require an actual suspension from the practice of law," it backed off that somewhat in a case last year, imposing a stayed suspension where a lawyer had called a judge a "lying, cheating bitch" -- to the judge's bailiff, no less.

Proctor got a six-month actual suspension nonetheless, and the reason is clear; some abject groveling can go a long way towards showing sufficient remorse for one's infelicitous remarks.  The lawyer who accused the judge of being a lying, cheating bitch wrote an apology, pled guilty to contempt of court, and offered to paint the judge's house.  (Okay, I made that last one up.)  Proctor, on the other hand, spent most of his time in the disciplinary proceedings trying to walk back his stipulation that he had no reasonable basis for his allegations against the judge.  With very few exceptions, denying that you've done anything wrong is not a winning strategy in a disciplinary case, especially when you start out by agreeing that you've done something wrong.

Just how little wiggle room attorneys have in this area is indicated by the Supreme Court's decision yesterday in Disciplinary v. GalloGallo, less than a year out of law school, was sent to handle a pretrial conference in a divorce case in Lake County.  He'd never met his client, the husband, but knew that the wife was in a relationship with Common Pleas Judge Eugene Lucci; in fact, the wife and children were living in Lucci's home. 

While he was waiting for the pretrial to begin, Gallo saw someone repeatedly come out of Lucci's judicial office, look around, then reenter the office.  The wife's lawyer then walked up and handed Gallo a motion that Lucci had filed, asking to intervene in the divorce action.  Gallo called his boss and informed him of the motion, and described the man he'd seen coming out of Lucci's office; the boss told him that the description "sounded like Judge Lucci."  Gallo's client then told him that Lucci was standing outside the office, and Gallo turned around and saw the same man he had seen earlier.  He went home and checked Lucci's picture on the court's web site and confirmed that it was the same man.  Two weeks later, he filed a response to Lucci's motion to intevene, contending that Lucci had violated the judicial code of conduct by "improperly using his position as presiding judge to advance his own personal interests, by attempting to insert himself into an action in which he has no legitimate interest."  That claim was buttressed by affidavits from himself and the client recounting the events of the pretrial, and that the client felt intimidated.

Whoops.  Turns out the man outside the judge's office was Lucci's bailiff, not Lucci himself.  That was enough to earn Gallo a public reprimand:  the court found that while he didn't know of the allegations' falsity, he was "reckless" in that regard:  he

accepted [the client's] identification of the man in the hallway without any further inquiry.  He relied upon [the client's] identification, Stafford's telephonic identification, and his own determination that the man he had seen in the courthouse matched an online potograph of Lucci as conclusive proof that the man in the hallway was Lucci.

A couple of things here.  First, how unreasonable was Gallo's reliance on the client?  As the dissent by Lundberg Stratton and O'Donnell point out, Gallo could certainly believe that his client would recognize the guy who was living with his wife and children, and the comparison of the picture on the court's website showed that "Gallo took reasonable steps to verify the identity of the person in question."  (The opinion doesn't mention whether the bailiff's picture was introduced in evidence for comparison purposes, leaving open the possibility that Lucci had adopted Saddam Hussein's tactic of choosing bodyguards who closely resembled him, so as to foil assassination attempts.  Hmmm... probably not.)

This gets to the more troublesome aspect of the opinion:  its apparent requirement that if you're going to say anything bad about a judge, you'd better have "conclusive" proof that you're right.  As might be gleaned, there are some First Amendment implications in all this.  That's not absolute, of course; lawyers do have an ethical duty to be respectful toward the tribunal, and the court in both Gardner and in Feiger's case concluded that comments there fell well outside the parameters of free speech.  Still, there's a knowledge aspect, which the court recognized in Gardner.  Gardner had argued for an "actual malice" standard, similar to public figure defamation cases, but the court opted for an objective standard:  "an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false."  (Note that his leaves open the possibility of an attorney being sanctioned for making statements that turn out to be factually true, if a "reasonable attorney" wouldn't believe them.)

The court in Gallo concluded that Gallo could be punished if his conduct amounted to recklessness.  But it's hard to square the result with this language in Gardner

Under the objective standard, an attorney may still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney turns out to be mistaken.

In fact, the possibility of mistake seems to be excluded by the requirement that the evidence be conclusive.  How many times do you have conclusive evidence of something, and turn out to be wrong?

That's why you're going to see your favorite legal blogger walking the straight and narrow.  Let's just hope that the Saddam Hussein bit doesn't arouse the ire of certain people down in Columbus.

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