Wednesday, September 23, 2015

Blogger Suspended In Illinois

An attorney who blogged about probate court was suspended for three years and until further court order by the Illinois Supreme Court.

From the Review Board report

This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "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, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."

The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the Rules. See, Administrator's Complaint, paragraph 9. The Hearing Board based its findings on these ten statements. See, Hearing Bd. Report, pp. 7-16, 24-31.

Respondent does not dispute that she made the ten statements in question. She contends that the Hearing Board's findings are against the manifest weight of the evidence because the statements are true. She also contends that her statements on the blog are protected by the First Amendment of the United States Constitution (First Amendment). We have read Respondent's brief and have the benefit of the parties' oral argument before this Board...we affirm the Hearing Board's findings of misconduct and conclude that her false statements are not protected by the First Amendment.

I posted my view that this suspension is far too severe when the Review Board filed its report. (Mike Frisch)

Bar Discipline & Process | Permalink


I know this is too long for a comment. It is also too important to ignore. Maybe you will like the quotations at least.

This case provides an excellent example of the defects in our system of justice.

Suppose a citizen who is not a lawyer published statements about a judge that the judge considered libelous. I presume that the only legal remedy for the judge is to sue the citizen for libel. Perhaps he could raise the charge to criminal libel or even terrorism, which is more likely after the passage of the Patriot Act and related legislation. Anyone who challenges those in power now is in the greatest jeopardy in our history.

If the judge sues the citizen, he would be taking the matter to his brothers in the law. It is an axiom that brothers watch out for each other. Therefore it would be unlikely that the citizen would get what our constitutions require, an impartial trial.

Even the mere appearance of partiality is supposed to prevent its operation, according to our laws. But as the Athenians said to the Melians in 431 BC, so we could say today: “…since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must...” [History of the Peloponnesian War, Thucydides] Or “Stop quoting laws to us. We carry swords.” [Gnaeus Pompeius Magnus in Life of Pompey, Plutarch] Today the court carries the sword, and the citizen stands weak before it.

Suppose the citizen’s charges against the judge were true. Even if there is a jury, the judge can instruct it so that justice is denied to the citizen. So much for the principle that truth is a complete defense to a claim of defamation. Judges wouldn’t do that? As the author of this article states, “Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.” Dred Scott, Bush v. Gore, Citizens United, to name a few examples.

Furthermore, the case discussed in this article is a trial within the legal brotherhood. Everyone concerned is a lawyer. They operate under the rules of the court for the government of the bar, and wield a power which is unique to the legal profession. They are the only group in our society that has the power to police itself. Brothers are judging their brothers, and if they throw one to the wolves now and then, it is mainly for show, to keep up appearances. If they actually did their job to the extent of the law, there wouldn’t be enough wolves.

The legal brotherhood has arrogated this power of self-regulation by asserting the doctrine of the separation of powers. They say that lawyers are officers of the court, therefore they are subject only to the court for discipline.*

But if we accept that application of the separation of powers, and agree that lawyers are members of the judiciary branch of government, why are so many of these officers of the court serving in other branches of the state and federal governments as legislators and executives? This is a violation of the separation of powers, the fundamental principle of our constitutions, which prohibits a citizen from holding office in two branches of government simultaneously.

All judges and lawyers swear to uphold those constitutions, but the strong do what they can. If the doctrine of the separation of powers should favor them, they will enforce it. If it should inconvenience them, they will ignore it. There is no point in taking the matter to court, since the defendants would also be the judges. I can imagine no simpler description of the defects in our justice system.

Thomas Paine argued that “if the judges are to hold their offices during good behavior there must be a power somewhere to judge of that good behavior or the breach of it, but of this the constitution is silent, and herein lies its defect.” [Man of Reason: The Life of Thomas Paine, Alfred Owen Aldridge]

Our only course must be to weaken the power of the lawyers and judges, and bring them back under the control of the law. In that effort the strength would be on the side of the citizens. The only question is whether we will use it.

* “…In my capacity as an attorney and officer of the Court…” – part of the Oath of Office for lawyers in Ohio. Similar if not identical words are used in New York and no doubt every other state.

Posted by: George Fleming | Sep 24, 2015 5:14:53 AM

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