ALEMAN, BLOGGING, AND THE BAR

The Scene: Circuit Judge Cheryl Aleman’s courtroom, North of the Border.

Dramatis Personae: Judge Cheryl Aleman; Attorney Sean Conway; “anonymous sources” the Florida Rules Of Criminal Procedure; The Florida Bar.

Sometime in October 2006, embattled Circuit Court Judge Cheryl Aleman, ever concerned for the rights of the accused, came up with a neat experiment: setting cases for trial within two weeks of the arraignment. The plan forced defendants to either waive their right to speedy trial or proceed to trial without proper time to prepare. In some twisted way, this was seen as a fair and just way of presiding over cases in criminal circuit court.

(We are working very hard at this point to refrain from expressing our views on this misguided policy and the individual who imposed it on defendants appearing in circuit court. Suffice to say, we expected nothing less from this “Judge”, and fervently hope she gets the same type of Justice at her JQC hearing that she so faithfully dispensed while on the criminal bench.)

Enter Attorney Sean Conway who posted this ARTICLE on the Broward Blog.

In documenting the exchange that had previously occurred between the Judge and the attorney in court over the new policy, the attorney saw fit to identify Judge Aleman in his transcript as “Evil Unfair Witch. Hereinafter EUW”

The Blog post found its way “anonymously” to the Florida Bar which opened an investigation and required the lawyer to respond to the complaint.
At issue is the following Rule from the Rules Of Professional Conduct:

RULE 4-8.2 JUDICIAL AND LEGAL OFFICIALS
(a) Impugning Qualifications and Integrity of Judges or Other Officers. 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

Comment
Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney, and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. . .
To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Having appeared before Judge Aleman on numerous occasions, calling her “Unfair” appears to be nothing more than an astute observation given her brazen attempt to eviscerate the rules of criminal procedure and the Constitution. “Evil” is a personal opinion that the lawyer had, and one of the more mild perjorative labels one could have bestowed upon Aleman given her conduct. While it never occurred in any of our cases, we personally saw her take what could fairly be called “evil delight” in the problems of defendants and lawyers who appeared before her. And “Witch” quite frankly in our opinion does a disservice to those who practice the religion of Wicken.

So we’re back to calling the Judge a Witch. This is not something that we would have counseled a lawyer to say. However, enter the opinion of the wise and learned Judge Arthur Tarnow of the District Court of the Eastern District of Michigan in Feiger and Steinberg v. The Michigan Supreme Court. We don’t have the cite, but the opinion is HERE

Judge Tarnow held a provision of the Michigan’s bar, similar to Florida’s rule of professional conduct cited above, unconstitutional.

From the opinion:
Limiting an attorney’s extrajudicial criticism of a branch of government in the name of preserving the judiciary’s integrity is likely to have an unintended, deleterious effect upon the public’s perception, since attorneys are often best suited to assess the performance of judges.

As Supreme Court Justice Hugo Black wrote for the majority in Bridges v. California:
The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably
engender resentment, suspicion, and contempt much more than it would enhance respect.

The Broward Blog is reporting that as Judge Aleman’s day of judgment approaches, the Florida Bar is moving quickly to wrap up the Bar’s inquiry into the blog post calling her a witch.

Writing in a blog read by contemporaries in the legal field is wrought with problems. Lord knows that we have struggled with moderating our blog and walking a line between allowing fair commentary and criticism, and not allowing unsupported slurs designed to do nothing more than embarrass the subject of the comment.

While we side squarely with the attorney in this issue, the decision is not all black and white. As we often tell our clients “be careful what you ask for, as you may get it.” A “wild west” of the Internet where people savage each other on line is not exactly our idea of a free exchange of ideas.

While we don’t like being the self appointed arbiter of good taste, the potential for abuse on an un-moderated blog is large. Just the other day we counseled a lawyer who had a bad experience before a circuit court judge. The lawyer was so incensed that s/he was ranting about knowing the judge when s/he was in private practice and allegedly violating the seventh commandment on a regular basis. To allow anyone to anonymously make a scandalous if not life changing allegation on a widely read blog is not something we wish to be a part of. Therefore, we have taken the step of moderating comments.

But the issue is not our blog policy, but the words of the blogger who does not hide their identity and criticizes a Judge. Is that conduct actionable under by the Bar, or did Justice Black get It right?

For it is a prized American privilege to
speak one's mind, although not always with perfect good taste, on all
public institutions. And an enforced silence, however limited, solely
in the name of preserving the dignity of the bench, would probably
engender resentment, suspicion, and contempt much more than it
would enhance respect.

Wise words indeed.

See you in court, openly rooting against Cheryl Aleman.