Saturday, May 29, 2021

Digging A Hole

An attorney whose only brush with discipline since his 1995 admission was suspended for 90 days by the Iowa Supreme Court for misconduct in his own post-divorce proceedings.

One issue related to his repeated references to a judge's alleged "brain cancer"

Lawyers are all human, of course, and mistakes, including unjustified attacks or potshots at a judge, occasionally occur by a lawyer who knows better. But Widdison’s conduct was not a simple uncharacteristic error of judgment that could be largely salved by an expression of remorse. Widdison launched a deliberate campaign, stretched over a several-month period, where he repeatedly attacked Judge Whittenburg. It commenced when she ruled adversely to Widdison in the modification action and it extended into the appellate courts with increasingly shrill language.

And so it is not just a matter of piling on. Over time, the assertions became qualitatively more troubling. Widdison’s statements first suggested that illness delayed a ruling in his case. Not very attractive, but not severe either. But it escalated from there. Widdison had dug the proverbial hole, and instead of stopping when the jig was up, he kept digging. In the end, he was questioning Judge Whittenburg’s integrity, accusing her of violating ethical rules, claiming she committed libel per se, and implied that her brain cancer affected the quality of her work. Even if Widdison could have made his initial statement without “knowing” its falsity, he certainly violated the rule by not abandoning the argument after Judge Whittenburg and Chief Judge Hoffmeyer set the record straight. The facts regarding Judge Whittenburg’s health were false and after statements by Judge Whittenburg and Chief Judge Hoffmeyer, Widdison had no objectively reasonable basis for continuing to make the statements about Judge Whittenburg.

We come to the conclusion that Widdison’s conduct is simply unacceptable for an Iowa lawyer. Obviously, his conduct drained judicial resources. Although all of us in the judicial branch must be prepared for criticism, fair and unfair, the unsubstantiated attacks on a judicial officer from an Iowa lawyer in this case are beyond the pale.

The court's sanction discussion included some words to the wise

Widdison argues for a private reprimand as the appropriate sanction. He notes that he has been active in various bar association activities, has participated in pro bono representation, and has been active in community affairs. He cites the trauma of his divorce and the loss of his father as mitigating factors that clouded his judgment. He notes that he “should have dropped the cancer issue” and “hope[s] that Judge Whittenburg can forgive [his] misunderstanding and accept [his] sincere apology.” He states that even a short suspension would have a devastating impact on his practice and would prejudice his clients, some of whom are indigent Iowans.

...we observe that the problems in this case would likely have been avoided if Widdison had not decided to represent himself in matters related to a stressful divorce. This case is a textbook example of why in difficult emotionally challenging circumstances the assistance of a qualified and objective lawyer is desirable in light of the risk that a pro se lawyer with clouded judgment will cross the Rubicon of our ethical rules and then double down on resulting misconduct.

After considering the entire record, the mitigating and aggravating factors, and our relevant precedent, we conclude that Widdison’s license to practice law should be suspended for ninety days.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/05/an-attorney-whose-only-brush-with-discipline-since-his-1995-admission-was-suspended-for-90-days-by-the-iowa-supreme-court-for.html

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Comments

The Iowa Supreme Court addressed the government’s burden of proof. See Slip Op. at 9 (citations omitted):
The Board must prove attorney misconduct charges by a convincing preponderance of the evidence which is a burden higher than the traditional preponderance of the evidence of most civil cases but lower than the beyond the reasonable doubt standard of a criminal prosecution. The burden is less stringent than a clear and convincing evidence standard.

I’m not taking issue with such statements regarding this matter. But, in general, attorneys’ criticism of a judge’s performance of official duties is subject to the clear-and-convincing evidence standard.

In all matters (civil, criminal or regulatory), “the rule of law applied by [any state] courts” must “provide the safeguards for freedom of speech” that are “required by the First and Fourteenth Amendments” for “critics” of “a public official” for “his official conduct.” New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964). Any “repression” of “criticism of the judge [for his official conduct] or his decision” must and “can be justified, if at all, only by a clear and present danger of the obstruction of justice.” Id. at 273. “Criticism of [judges’] official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.” Id. The First Amendment protection of such freedom of speech triggers Fifth Amendment protection of due process of law. The “constitutional standard demands” that the “proof presented to show” each material fact must have “convincing clarity.” Id. at 285-286.

The “First Amendment mandates a ‘clear and convincing’ standard” regarding each element of the government’s case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The “clear-and-convincing-evidence requirement must be considered by a court” even when “ruling on a motion for summary judgment” whenever “New York Times applies.” Id. at 244. In any matter for which “the First Amendment mandates” a “clear and convincing” standard, courts may not apply a lesser standard regardless of the procedural posture or the nature of the matter. Id. at 252. When the Constitution requires that facts be “proved by clear and convincing evidence,” it is plainly unconstitutional to prove them “by a” mere “preponderance of the evidence.” Id. at 247. Under the First Amendment, any tribunal addressing criticism of the official conduct of a “public figure” always “must bear in mind the actual quantum and quality of proof necessary to” comply with “New York Times.” Id. at 254. “For example, there is no genuine issue” for trial regarding a material fact when “the evidence presented” is “of insufficient caliber or quantity to allow a rational finder of fact to find [such fact] by clear and convincing evidence.” Id.

Posted by: Jack Jordan | May 29, 2021 12:03:58 PM

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