Wednesday, November 27, 2013

More Attorney Free Speech Outrage: Florida Supreme Court Suspends Attorney for Two Years for Criticizing Another Attorney

The ABA Journal reports:
The Florida Supreme court has suspended a lawyer for two years for rude conduct and recommended that the case be studied “as a glaring example of unprofessional behavior.”

The court rejected a referee’s recommended sanction for Jeffrey Alan Norkin as too lenient, saying a two-year suspension is appropriate given Norkin’s “appalling and unprofessional behavior.” The ABA/BNA Lawyers’ Manual reported on the Oct. 31 decision (PDF).

Jeffrey Alan Norkin
According to the court, Norkin accused a judge of being at the “beck and call” of his client's opponent in a civil case, yelled in court, and “incessantly” disparaged and humiliated opposing counsel in the litigation.

The opposing counsel, Gary Brooks, was 71 years old at the time and was suffering from Parkinson’s disease and kidney cancer. He was a Harvard law grad with a “lengthy and unblemished career,” the court said. Brooks died last year.

Norkin was accused of acting improperly toward Brooks when he:

• Sent emails to Brooks that said Brooks was lying and disingenuous, his motions were “laughable and scurrilous,” and he will come to regret his “incompetent, unethical and improper litigation practices.” Other emails threatened to seek sanctions against Brooks and advised him to notify his malpractice insurance carrier.

• Approached Brooks in the courthouse hallway and said he had confirmed in conversations with other lawyers that Brooks was “underhanded and a scumbag.” Other lawyers were within earshot at the time.

The court concluded its opinion with this advice for Florida lawyers: “Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel. ...

“Norkin has conducted himself in a manner that is the antithesis of what this court expects from attorneys. By his unprofessional behavior, he has denigrated lawyers in the eyes of the public.”
The Florida State Supreme Court thinks Norkin needs a lesson on civility.  Perhaps.  But clearly the Florida State Supreme Court though needs a lesson on the First Amendment.  The sanction for the email is particularly egregious in that it lacks any publication whatsoever so it is not even arguable libelous.

There is a case out of Tennessee in which an attorney, Caldwell Hancock, is accused of violating Rule 8.2 for criticizing a judge in an email he had written to the judge and no one else.  The case was over and Hancock was unhappy with some of the public comments the judge that he felt were inaccurate and unfair.  I am going to try to get more information on that case and report about.

I have recently reviewed the history behind the 1798 Alien and Sedition Acts which sought to squelch public criticism of Congress and the President.  Both those Acts and Rule 8.2 were aimed at limiting criticism of public officials to truthful criticism, with truth being an affirmative defense that has to be proved at trial.  It is astonishing that the exact same argument the Federalists used for the Alien and Sedition Acts - the need to protecting the integrity of the legislative and executive branches from unfair and inaccurate criticism - is what is used by state disciplinary bodies in using Rule 8.2 to punish attorneys for criticism of judges. Norkin's case merely extends that concept to officers of the court, i.e. attorneys.


Stephen R. Diamond said...

Florida has previously suspended attorneys for e-mail. See "Florida State Bar enforces “political correctness”—the Mitchell and Mooney matters" — .

Interesting about the Alien and Sedition Acts; I'll have to read them.

Pete Boggs said...

Too many courts have become club cozy fraud lounges; which might explain hypersensitivities to criticism.

Unknown said...

Although I understand Mr. Ogden's tendency to believe that there is a grain of truth in the Fla. S.Ct.s Decision, that I acted unprofessionally or without civility to some degree, this is simply not true. I was faced with an untenable situation against truly evil opponents bent on my client's destruction.

The Court granted my summary judgment motion dismissing the sham lawsuit that eventually destroyed my client's life. I also won summary judgment on an abuse of process counterclaim, something maybe unheard of in all of litigation history. I got that summary judgment because the lawyer who complained about me filed a fraudulent lawsuit and lied to the judge for 18 months, asserting his allegations of grand theft by my client had merit when it was plain and obvious they had none.

Telling the truth that your opponent is being dishonest and malicious in private emails is not uncivil. Instead, it is an effort to get a bad actor to accept what he is doing is wrong in an effort to extricate one's client from utter destruction.

I won the case, but delays by Brooks, allowed by the court, and refusals by anyone to get financial relief for my client, destroyed his company, drove it into bankruptcy, and into liquidation.

How can a few accurate accusations be unethical much less warrant a two year suspension?

Jeffrey Norkin

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