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 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.
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).
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.
Jeffrey Alan Norkin
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.”
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.