PBCBA BAR BULLETINS pbcba_bulletin_February 2019 - Page 18

PROFESSIONALISM C o r n e r STICKS AND STONES MAY BREAK YOUR BONES, BUT WORDS CAN GET YOU SANCTIONED LAUREN JOHNSON Introduction Have you ever wanted to voice some, let’s say, “colorful” opinions about a certain judge that you feel has been impartial towards you or your client? Or maybe you’ve wanted to express your frustrations about a judge you feel has treated you or your client unfairly. Before you do so, you might want to think twice, and review the Rules Regulating the Florida Bar, specifically Bar Rule 4-8.2. Bar Rule 4-8.2 a letter containing “emotionally charged statements with conspiratorial overtones” voicing his belief that the State court judges were biased against him and that the legal system was rife with alleged corruption and favoritism of certain individuals. Id. at 5-6. For example, the lawyer’s letter suggested that his opposing counsel’s burden at oral argument “was lighter than it should have been” based on a photograph of a State appellate judge and the lawyer’s opposing counsel together at the judge’s investiture. Id. at 13. In the letter, the lawyer also compared the injustice suffered by his client to the Biblical story of Susanna in which a Hebrew wife was falsely accused and blackmailed by two dishonest men. Id. at 3. The lawyer also sent his impassioned letter to trial court and appellate judges from the prior State case. Id. at 4. According to Rule 4-8.2(a): “A lawyer shall not make 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, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office.” The Florida Bar filed a complaint against the lawyer for the comments in the The Comment to the Rule provides that letter, alleging that the lawyer violated “[e]xpressing honest and candid opinions various Florida Bar Rules, including Rule on such matters contributes to improving 4-8.2. Id. at 1. After a hearing, the referee the administration of justice,” however, recommended that the lawyer receive a “false statements by a lawyer can unfairly public reprimand, be placed on a one-year undermine public confidence in the probation with various conditions, and administration of justice.” Seems simple, pay costs of $2,827.09; however, the referee right? Not so fast. recommended a finding of no guilt as to Bar Rule 4-8.2. Id. at 7. The Florida Bar sought A Cautionary Tale review of the referee’s report by the Florida Supreme Court, seeking further sanctions Recently, the Florida Supreme Court and findings of guilt against the lawyer. Id. disciplined an attorney under that exact The lawyer did not file an answer brief, and rule in The Florida Bar v. Patterson, 2018 the Court directed the lawyer to show cause WL 5095158 (Fla. Oct. 19, 2018). In this per why the Court should not impose a more curiam opinion, the Court found that a severe sanction against the lawyer than the lawyer’s disparaging statements in a letter referee recommended. Id. at 7-8. and court filings “contributed to the general lack of civility and professionalism [the As the Court noted, the standard for Florida Supreme Court] is striving to curb in determining if there has been a violation of the legal profession.” Id. at 15. Rule 4-8.2 is whether the lawyer making the statement had an objectively reasonable The lawyer in that case had represented factual basis to make the statement. Id. at a client in a State civil action in which he 12. The lawyer had testified at the referee and his client were sanctioned for acting hearing that his belief that an injustice in bad faith, which sanctions were affirmed occurred to his client came from the on appeal by the Third District Court of alleged influence that his opposing counsel Appeal. Id. at 3. In a related Federal civil and opposing counsel’s firm had in the rights action in the Southern District of community, i.e. the photograph of the State Florida, with the same client and same judge and opposing counsel together. Id. lawyer, the lawyer sent the District Judge at 13-14. The Court found that the lawyer’s PBCBA BAR BULLETIN 18 testimony failed to establish an objectively reasonable factual basis for any of his colorful statements in the letter and that there was likewise a lack of any evidence in the record to establish such a factual basis. Id. at 14. According to the Court, the lawyer’s statements and conduct was more than careless neglect. Id. at 16. “Such conduct, while an inconvenience or a mere slight to those initially confronted by it, ultimately emboldens others to engage in similar unprofessional or disrespectful acts, the net effect of which is the gradual erosion of public confidence in the courts and the decisions rendered by them,” Id. at 17. The Court was clearly shaken by the unprofessionalism the lawyer showed towards judges and other professionals in his letter and in court filings. Therefore, the Court rejected the referee’s recommended discipline, found the lawyer guilty as to violation of Rule 4-8.2(a), and instead imposed a one-year suspension from the practice of law. Conclusion To be sure, Rule 4-8.2 is not meant to shield judges from honest criticism in a free system of checks and balances. What this boils down to is, if you want to question the qualifications or integrity of a judicial officer, your allegations better be true and you better have a sufficient factual basis to back it up. Otherwise, you could be looking at some serious and lengthy repercussions. * Lauren Johnson ([email protected] com) is an associate at McCabe Rabin, P.A. practicing business, securities, and whistleblower litigation.