First Amendment Free Speech is limited. You can’t falsely shout fire in a crowded theatre. But when it comes to lawyers’ Free Speech, it’s even more constrained.
Lawyers can’t say unkind things about judges – - – at least not for public consumption. The latest example of lawyer hot-headedness directed at the bench comes from Florida.
A report in the September 12, 2009 New York Times, “A Legal Battle for Lawyers: Online Attitudes vs. Rules of the Bar,” talks about the problems social media is causing lawyers these days. The instance cited by the newspaper was the Florida Bar’s discipline of criminal defense lawyer Sean Conway for blogging that a judge was an “Evil, Unfair Witch.”
Now, from where I sit, practicing law in Florida already seems tough. There’s a lot of unfathomable, indefensible impropriety going on in Florida or at least that’s the view of the public guardians at the Florida Bar. Conway is the latest instance of a lawyer stepping on himself. His trouble started and ended when he foolishly vented his anger at a particular jurist for giving him only a week’s trial preparation time while other judges give a month.
What Lawyers Most Like to Do.
With few exceptions, most people can agree about the following 2 traits lawyers have. First, they love to hear themselves talk. Second, they love telling you what they think. That’s why the increasing use of social media like Twitter, Facebook, MySpace and yes, blogs, may further imperil other incautious lawyers when they run afoul of their ethical rules by talking to much about the wrong things.
When it comes to what lawyers think of judges, lawyers must exercise the greatest degree of care and concern. Our ethical rules require us to accord the respect due to courts of justice and to judicial officers.
There’s a simple but important reason for this, it’s to preserve the rule of law. To create and safeguard the public’s confidence in the integrity of its judiciary, lawyers consent to restricting their First Amendment Free Speech rights in favor of supporting the state’s interest in maintaining the public’s trust in its legal institutions and processes.
But here’s the rub. Lawyers, especially those who regularly appear in court, have an inside-baseball view of the judicial process, that is, they have an insider’s knowledge of the intricate details and occurrences not well known to outsiders.
Lawyers know first-hand what goes on in the courtroom and how a particular judge conducts things in their court. See The Los Angeles Times August 16, 2009 story “Critics want to bench Judge Manuel L. Real,” about federal judge Manuel Real for a well-known-to-lawyers but largely unknown-to-the-public illustration of how one judge has conducted himself in his courtroom for many, many years. See Judge Manuel Real | Critics want to bench Judge Manuel L. Real at http://www.latimes.com/news/local/la-me-judge-real16-2009aug16,0,1352114.story
Therefore, there’s a compelling argument to make. Because lawyers are uniquely qualified by their experiences in court, they owe a higher duty to share that knowledge with the public, especially when it implicates a matter of public concern. Consequently, that’s the tension that arises here.
How do we weigh the benefits to be gained by lawyers divulging matters of public concern against the risk of diluting if not damaging the equally important interest in upholding judicial integrity? Nowhere else do these competing interests collide more strongly than at the intersection of a judicial election campaign.
Many lawyers find themselves in a quandary during judicial elections. If a lawyer runs against an incumbent judge, the candidate’s judicial campaign speech is regulated by the Canons of Judicial Ethics. But those lawyers not running for office will still muzzle themselves on the sidelines during such campaigns. Part of this, of course, is that most lawyers’ tend to be risk averse. Despite their special insiders’ competencies, most self-regulate their speech. To do otherwise is to face possible disciplinary sanctions by daring to weigh in on the demerits of a sitting judge.
Some commentators opine that a possible ‘safe’ route around the threat of sanctions is to criticize but with restraint. Or as a former U.S. President once famously said about the nation, by being kinder and gentler. Or as in the case of defamation, by always making sure your remarks are accurate for the truth shall set ye ‘ free. Lawyers, on the other hand, who engage in ad hominem attacks are the ones more likely to be sanctioned.
For example, well known Michigan Lawyer Geoffrey Feiger knows the consequences of publicly calling 3 judges “jackasses” and comparing them to Nazis on a radio show. Fieger was upset because the judges overturned his $15 million verdict. When the Michigan Supreme Court reinstated the bar’s reprimand, Fieger sued. The Sixth Circuit ruled against him in January of this year.
Ironically, in his dissent, Judge Gilbert Merritt sympathized with Fieger when he chided the Michigan Supreme Court. Merritt said, “In sum, the Michigan Supreme Court says that lawyers are free to criticize judges, but may only do so in a manner that shows courtesy and respect. The vagueness—and potential reach— of this requirement hardly needs further elaboration.” See Fieger v. Michigan Supreme Court, 553 F. 3d 955, (C.A. 6, Jan. 20, 2009)
And finally, while it is a undeniably a matter of grave public concern if a particular jurist is objectively unfit to sit on the bench, e.g., because of unethical conduct, the continuing vagueness attendant to the intersection of promoting public concern vs. upholding judicial integrity, is such that most lawyers will continue regarding its crossing as a calculated risk.
 See Schenck v. United States, 249 U.S. 47, 52 (1919), “[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”)
 Not long ago, the Florida Bar disciplined 2 lawyers for using a logo of a pit bull with a spike collar and the phone number 1-800-PITBULL in their television ads. Since the pit bull had nothing to do with the type of legal services provided, it violated the bar’s advertising rules and was not protected commercial speech. See The Florida Bar v. John Robert Pape at http://www.floridasupremecourt.org/decisions/2005/sc04-40.pdf.
 One successful way to access lawyer insights about judges is via local bar sponsorship of judicial surveys asking the lawyers regularly appearing in court to anonymously rate judges using a standardized set of questions. See “Judicial Survey participation rises” in the Las Vegas Review-Journal at http://www.lvrj.com/news/15661442.html and The Nevada Appeal at “Attorneys rank area judges” at http://www.nevadaappeal.com/article/20081015/NEWS/810149949/1007/COMMUNITY&parentprofile=1058&title=Attorneys%20rank%20area%20judges