Monday, January 26, 2009

First Amendment Defense Rejected

An attorney who has practiced for 30 years without a disciplinary blemish is the subject of a recommended sanction of a two year suspension with reinstatement subject to court order. An Illinois hearing board found that the attorney, after discharge from employment as an assistant corporation counsel, engaged in misconduct involving frivolous accusations against judges who sat on her wrongful discharge claim:

The statements Respondent made about certain judges of the Seventh Circuit Court of Appeals are undisputed. The issue we must resolve is whether these statements violated ethical rules. We believe they did. It is apparent that Respondent repeatedly made statements in court documents that were false, attacked the integrity of judges, and accused judges of deciding cases on an improper basis.

In a motion for judicial recusal filed in May 2000, Respondent requested the recusal of all judges in the Seventh Circuit who have a son or daughter working for the City of Chicago because she had "concluded that there is an employment-opportunities e-mail chain letter that runs from City Hall to the judges’ chambers at the Dirksen Federal Building, and then to the computers of the judges’ kids." In an attachment to that motion, Respondent stated that that Judge Bauer would not enforce substantive or procedural laws relating to at-will employment. She further stated that Judge Ripple’s enforcement of these laws was based on his interest in receiving an appointment to the United States Supreme Court, and not the rule of law.

Also in May 2000, Respondent filed a supplement to a petition for a writ of mandamus in which she explained that her motion for recusal was not made simply because the court "wrongly decided" her appeal, but because it "deliberately wrongly decided it" and "outright lied" in the opinion. A few days later, Respondent filed clarification to the previous motions and stated that the court "casually enage[s] in the case-by-case judicial nullification of laws they do not like and in the undisguised and untroubled deceit inherent in selective faux appellate review (or who close their eyes to it when their colleagues do so) will just as casually overlook the inconvenient fact of a jurisdictional bar when doing so enables them to protect their own (conflict of) interest." In August 2000, in a motion for a ruling on a writ of mandamus, Respondent stated that Judge Rovner ruled against her because Judge Rovner’s son works for the Mayor’s office. Respondent repeated this allegation in an amended motion for reconsideration she filed in October 2000. She also characterized the court’s decision as "downright weird" and as a "shoot from the hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues whose integrity Mann has questioned because they rendered her an unwitting dupe in two successive ornamental appeals." There can be little question that these statements impugned the integrity of the judges and the court. She repeatedly accused various judges of deciding her case on an improper basis.

Respondent argues that there would only be an ethical violation if the statements were false, and the Administrator failed to prove they are false. Respondent’s argument is not an accurate recitation of the law. The Administrator need not prove that the statements were false. The plain language of the relevant Rules establishes that the Administrator need not prove that Respondent’s statements were false. Rule 3.2(a)(1) provides that a lawyer shall not "make a statement of material fact or law to a tribunal which the lawyer knows or reasonable should know is false." Rule 3.2(a) of the Illinois Rules of Professional Conduct (emphasis added). Rule 8.2(a)(1) provides that a lawyer shall not "make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . ." Rule 8.2(a)(1) of the Illinois Rules of Professional Conduct (emphasis added). Accordingly, the Administrator must only prove that Respondent had no reasonable basis for believing the statements were true or made them with reckless disregard for the truth. To meet this standard, we need go no further than her answer to the disciplinary complaint.

In her answer, Respondent stated: "nor does the Administrator identify any mechanism by which Mann -- who lacked access to the judges themselves, their clerks, their secretaries, and their internal memos – could have obtained information that indicated the falsity of the statements, least of all statements regarding scienter of the judges at issue; scienter, by its nature, almost always must be proven using only indirect, or circumstantial, evidence." By making this statement in her answer, Respondent has admitted that she had no facts or evidence to support her statements. She admits that she lacked access to the judges, court personnel or documents that might substantiate her claims.

Respondent also admitted in her answer that some of the statements she made "are, or probably are, accurate and that in any event so much time has elapsed since the events at issue that Mann probably will be unable to obtain the tangible evidence that she might otherwise have been able to obtain in order to prove the statements accurate (emphasis added)" This statement further supports the conclusion that Respondent had no evidence to substantiate her statements about the judges at the time she made them.

Accordingly, not only did Respondent lack a reasonable basis to make these statements about the judges, she admits that she had absolutely no basis for making them and made them with reckless disregard for their truth. Therefore, we find that the numerous statements Respondent made about sitting judges of the Seventh Circuit were unsubstantiated speculation and violated the Rules of Professional Conduct. Moreover, in making these statements Respondent engaged in conduct involving dishonesty, deceit and misrepresentation; conduct prejudicial to the administration of justice; and conduct that tends to defeat the administration of justice and brings the courts and the legal profession into disrepute.

Respondent suggests that she had a first amendment right to make these statements about the judges. We disagreed. Although attorneys have the same first amendment rights as any other citizen, "no individual enjoys the freedom under our Constitution to make false and defamatory statements against others with actual malice i.e., with knowledge that the statementsare false, or with reckless disregard for their truth or falsity." In re Zurek, 99 CH 45, M.R. 19164 (September 19, 2002) (Hrg. Bd. Report at 20), citing New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964); McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787 (1985). Further, judges are not insulated from criticism, however "the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted."

The hearing board found other misconduct involving dishonesty and unauthorized practice for representing a client after the attorney was no longer eligible to practice before the Seventh Circuit. (Mike Frisch)

Update: I received an email from the attorney who is the subject of this proceeding in which she requested that I note that she disputes the findings of the hearing board and has filed a lawsuit in Michigan federal court, where she resides and does not practice law. The suit seeks declaratory and injunctive relief as well as money damages from the  court clerk and several named judges of the Seventh Circuit.

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Wow. When I see pleadings like this I wonder, "even if she firmly believed all these things, what did she think was going to happen-- she'd draw a panel with 3 judges she didn't talk about, who would read this and go, 'oh, yeah, my colleagues MUST all be crooked?'"

As it happens the other judges thought her claims had no merit. But that's what they would say, wouldn't they?

Posted by: BB | Jan 27, 2009 4:41:03 PM

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