Friday, September 20, 2019

Revenge Of The "Lawless Bully"

The Nevada Supreme Court sanctioned an attorney for statements made in multiple recusal motions

We conclude that the State Bar proved that Colin made statements in pleadings to the court concerning the integrity of several justices that he knew to be false or with reckless disregard for their truth or falsity and that he engaged in conduct prejudicial to the administration of justice, but the evidence does not establish that Colin engaged in conduct intended to disrupt a tribunal because the  alleged conduct did not occur inside a courtroom or similar setting. Considering the nature of the misconduct and similar discipline
cases, we conclude that a six-month-and-one-day suspension serves the purpose of attorney discipline.

The case

This discipline matter arises out of Colin's representation of condemned inmate Charles Lee Randolph in an appeal from a district court order denying Randolph's second postconviction petition for a writ of habeas corpus.

After losing on appeal

In a petition for rehearing and a motion to disqualify the four justices who signed the Randolph disposition, Colin made a number of unsupported and outrageous remarks about the court and the justices, many of which were unrelated to the matter on which he sought rehearing.


[T]he Court took its dishonesty to an unprecedented new level, and . . . the Court affirmatively fabricated a lie, blatantly contrary to the record. . . . Indeed, the Court's own Order proves that the Court is drunk with power, acting like a lawless bully, just lying and cheating to accomplish its evil objective to see Randolph dead.

And in another motion

This Nevada Supreme Court has no respect for the Nevada Constitution, or the law of the United States of America. The Court's despicable and blatantly lawless actions have repeatedly proven this sad truth.

[Flairness and honesty are anathema [sic] to this Court, which seeks only to use its brute power to make up lies, get paid, and wrongly blame others for its evil objective—the lynching of Charles Lee Randolph.

Before that same court here

Colin contends that the evidence does not support the panel's conclusions that he violated RPC 3.5(d), RPC 8.2(a), or RPC 8.4(d) because "[t]he State Bar of Nevada intentionally lied to the hearing panel in an effort to get [him] disciplined for telling the truth!"(Emphasis omitted.) The State Bar does not directly respond to this argument.

The court finds that the conduct was not disruptive

Colin's conduct did not occur in a courtroom setting. His statements and conduct all occurred in writing, instead of in-person before a tribunal. Thus, his conduct could not have disrupted the tribunal's proceeding in Randolph in the sense contemplated by RPC 3.5(d). Accordingly, we conclude that the pangs findings fail to establish that Colin violated RPC 3.5(d).

But violated Rule 8.2

First, while many of Colin's statements about the justices are fairly characterized as opinions, substantial evidence supports the panel's findings that at least some of them were statements of fact. The strongest examples of factual statements include Colin's statements that the justices "affirmatively alter[edr the appellate record"; "affirmatively fabricated a lie, blatantly contrary to the record", and have actively participated "in a lengthy and ongoing unconstitutional judicial scheme and conspiracy to circumvent the Nevada Constitution, steal money from the Nevada taxpayers, and put $30,000 unconstitutional dollars a year into their own, and/or their judicial friend's pockets" by serving on the Law Library Commission.

Second, substantial evidence supports the panel's findings that Colin's statements concern the qualifications or integrity of the justices. In particular, he accused them of lying, altering the record in a case, engaging in an unconstitutional conspiracy, and stealing money from the taxpayers.

Finally, substantial evidence supports the panel's findings that Colin either knew the statements were false or made the statements with reckless disregard for their truth. In particular, Colin admitted in his affidavit supporting one of the post-judgment disqualification motions that he waited to assert the illegality of the justices compensation for service on the library commission until after the decision in Randolph. He stated that he "considered filing a Motion to Disqualify in 2011 based only on the Justices [sic] unconstitutional participation in the conspiracy to circumvent the Nevada Constitution pursuant to the bogus 'Library Commission but decided to give the Justices the benefit of the doubt." From that admission, it can be inferred that Colin knew the compensation was not illegal and made the false statement only because the court ruled against his client. At the very least, substantial evidence supports the panel's findings that Colin made those statements with reckless disregard for the truth, as any compensation for service on the Law Library Commission necessarily was authorized by the Legislature.

In sum, the State Bar established by clear and convincing evidence that Colin made statements of fact that impugned the justices' integrity, with knowledge of the statements' falsity or with reckless disregard for whether they were false. Based on that evidence and giving deference to the panel's findings of fact, we conclude that Colin violated RPC 8.2(a).

The extra day requires him to petition for reinstatement. 

The case is In the Matter of Discipline of Colin. (Mike Frisch)

Bar Discipline & Process | Permalink


The attorney’s speech seems to me to be—by far—the lesser of all the evils here. It seems to me that the attorney was deprived of “liberty” to practice his profession “without due process of law.” U.S. Const. Amend. V. The disciplinary authorities expressly stated (repeatedly) that they imposed such discipline based on only “substantial evidence” when the constitutionally required standard is “clear and convincing” evidence.

Courts (including their disciplinary authorities) must carefully balance “the preferred place given” to “the great” and “indispensable democratic freedoms secured by the First Amendment” against any “usual presumption supporting” court rules or rulings. Thomas v. Collins, 323 U.S. 516, 530 (1945). The “priority” of First Amendment rights “gives these liberties a sanctity and a sanction not permitting” any “dubious intrusions.” Id. The “character of the right” to petition and the right to freedom of speech “determines what standard governs” and the restrictions that may be imposed by any governmental authority. Id.

Specifically regarding criticism of judges, “the only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give” First Amendment “liberties” the “broadest scope that could be countenanced in an orderly society.” Bridges v. California, 314 U.S. 252, 265 (1941). “The implications of subsequent American history confirm such a construction of the First Amendment.” Id. at 266. For example, a federal judge’s “punishment of a lawyer for publishing comment on a case,” engendered public outcry, the judge’s “impeachment proceedings,” and enactment of a federal statute prohibiting criminal contempt for conduct such as was at issue here. Id. at 266-67.

Any invocation of any court or disciplinary rule to “restrict those liberties” in the First Amendment “must be justified by clear public interest, threatened” by “clear and present danger.” Thomas, 323 U.S. at 530. Use of any rule to “restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Id.

“[T]he substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Bridges, 314 U.S. at 263. Any court or disciplinary rule or ruling that “actually affect[s] the exercise of these vital [First Amendment] rights cannot be sustained merely because” it was created or stated “for the purpose of dealing with some evil within” the court’s “competence” to regulate “or even because” such court rule or ruling does “in fact provide a helpful means of dealing with such an evil.” United Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967). The government must show that its actions targeting the particular speech at issue were “needed” at the time sanctions were imposed “to protect” a legitimate “interest in high standards of legal ethics.” Id. at 225.

Any “individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs,” including “the risk of closer public scrutiny.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). The “public’s interest extends” to “anything which might touch on an official’s fitness for office.” Id. “Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation.” Id. at 344-45. Moreover, “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Id. at 339-40. So the government (disciplinary authorities) must prove that the statements at issue were at least “false statements of fact.” Id. at 340.

“The constitutional guarantees” of freedom of speech and petitioning “require” a “federal rule that” any attempt to punish any criticism of any “public official” for “his official conduct” requires proof not only “that the statement” was a “falsehood” but also that it “was made” with “actual malice,” i.e., “knowledge that it was false or with reckless disregard” for its falsity. New New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

This “constitutional standard demands” that the “proof presented to show” either “actual malice” or falsehood must have “convincing clarity. Id. at 285-286. The “First Amendment mandates a ‘clear and convincing’ standard” even regarding summary judgment motions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Accordingly, “reckless disregard” for falsity must be proved with clear and convincing evidence that the attorney “in fact entertained serious doubts as to the truth of his publication” or evidence of “subjective awareness of probable falsity,” i.e., “there are obvious reasons to doubt the veracity” of a statement or information. Herbert v. Lando, 441 U.S. 153 (1979).

The foregoing directly determined “the extent to which the constitutional protections for speech” limit the power of any governmental authority to create liability for or punish “critics” of a “public official” and, specifically even a judge, for “his official conduct.” New York Times at 256. See also Bridges, 314 U.S. at 270-71:

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 ... on all public institutions. [Any] 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. [Certainly,] disorderly and unfair administration of justice, is more plausibly associated with restricting publications which touch upon pending litigation.

“The interest of the public here outweighs the interest of” any judge “or any other individual. The protection of the public requires not merely discussion, but information.” New York Times at 272. Judges can “claim no talismanic immunity from constitutional limitations.” Id. at 269. Speech criticizing them “must be measured by standards that satisfy the First Amendment.” Id. Emphatically, not even “factual error” or even “defamatory content suffices to remove the constitutional shield from criticism of official conduct,” and even “the combination of the two elements is no less inadequate.” Id. at 273.

The Supreme Court repeatedly was “careful to note” the unconstitutionality of “action which encroaches on freedom” to criticize “public men” because they are essentially “public property,” and “discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled.” Id. at 268. “[D]ebate on public issues should be uninhibited, robust, and wide-open, and” it “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times, 376 U.S. at 270. Speech may legitimately resort “to vilification of men who have been, or are, prominent.” Id. at 271.

Where judicial officers are involved [ ] concern for the dignity and reputation of the courts does not justify the punishment [of any] criticism of the judge or his decision. This is true even though the utterance contains ‘half-truths’ and ‘misinformation.’ Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. [ J]udges are to be treated as ‘men of fortitude, able to thrive in a hardy climate.’ ... Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

Id. at 272-73 (citations omitted).

It seems that the concerns raised by the disciplinary authorities really “reflect the obsolete doctrine that the governed must not criticize their governors.” Id. at 272. Such obsolete doctrine was described succinctly but in sufficient detail recently. See McKee v. Cosby, 139 S. Ct. 675, 679 (2019) (Thomas, J., concurring in cert. denial). It was contrasted specifically with the “actual malice” standard, above. See id. at 677 discussing New York Times and its progeny.

Posted by: Jack Jordan | Dec 29, 2020 10:57:01 AM

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