Killing Them Softly

“No If’s, And’s or Blawgs”

“To Drink or Not to Drink”

“Judges and Lawyers Behaving Badly”

Carbolic Smokeball

Scene 1 PALM BEACH COUNTY COURTHOUSE

To Tweet or Not to Tweet.. @ROCKNROLL69 says :

“so fresh and so clean clean. Ready for trial in front of Judge Bimbo, I mean Judge G-dawg ;-) .”

#icouldbejudge #moveoverbarbie

@LUCKY4DAYZ says:

“3 months out of law school, representing friend in capital-murder trial … what’s the standard for JOA again?!”

#thingsIshouldhavelearnedinlawschool

@ROCKNROLL69 says:

“Court starts at 8:30 in the morning. I’m here, ready to go… where’s the judge? Lint rolling her robe perhaps?! It’s not bad enough that when she finally gets into the courtroom and starts calling up cases

with plea deals…she lines all the defendants up, gives them the ‘option’ to plead ‘guilty,’ takes those pleas in unison without the full colloquy and then sets them on their merry way. Let’s just avoid an in-court

free-for-all like yesterday. Probably not a good idea to tell the judge how to do her job, esp in open court! I don’t think she liked my comparison of her courtroom to a circus and her to a ringmaster/lion-tamer. ;-)”

#playingdressup #liferuiner #icoulddobetter”

Rules Regulating the Florida Bar

4-3.5(c) a lawyer shall not engage in conduct intended to disrupt a tribunal.

4-8.2(a) 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, mediator, arbitrator, adjudicatory officer, or public legal officer.

4-8.4(d) a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice,

including to knowingly or through callous indifference, disparage or humiliate other lawyers on any basis.

https://www.floridabar.org/divexe/rrtfb.nsf/FV?Openview&Start=1&Expand=4#4

The Infamous Text Message Chain

PD: FYI… Ur victim was a little concern as to why you didn’t raise the restitution issue until AFTER the sentence was pronounced! And what was the deal with all those unreasonable plea offers, 364 dayz in jail for 1st petit theft

offense?

ASA: Who is this?

PD: Luck

ASA: I don’t know who gave you my cell phone number but this is not appropriate means of contacting me. Delete my number and never contact me

via this number.

PD: U provided me ur number in discovery!!! No need to be such a WITCH.

ASA: Well maybe I wouldn’t have to be if you could just get your act together and do your job like a competent person! Any further contact through this

medium will be viewed as harassment and will be reported to the appropriate authorities.

First Amendment and Attorney Speech

It’s Complicated!

Attorneys as Officers of the Court

Support for Maintaining Restrictions on Attorney Speech

Attorney Solicitation and Advertising

Policy Reasons for Supporting or Rejecting Attorney Speech Based on the Interests of the Government, Attorneys, and the Public

See Benjamin Beezy, An Alternative Approach to Evaluating Attorney Speech Critical of the Judiciary: A Balancing of Court, Attorney, and Public Interests, 1 UC Irvine L. Rev. 1221 (2011)

Is this real life?!

Broward Attorney’s Story Judge’s alleged behavior- refusing defendants reasonable time to

prepare for trial and then insisting, if they wanted to prepare, that they waive their constitutional right to a speedy trial

Highlights from the Blog Post

l along with several other attorneys, had to endure her ugly, condescending attitude as one-by-one we all went up to the podium and noted that our respective clients had

just been arraigned on Oct. 18th as she forced us to decide between saying ready for trial – or need a continuance…Every atty tried their best to bring reason to that ctroom, but, as anyone who has been in there knows, she is clearly unfit for her position and knows not what it means to be a neutral arbitec… Evil, unfair witch

(“hereinafter “witch”)… As my case was on recall for 2 hours, I watched this seemingly mentally ill judge condescend each previous attorney… Judge (not your honor b/c

there’s nothing honorable about that malcontent) there seems to be a mistake in this case…

“Arrogant, discourteous and impatient” speech ultimately cost this attorney $1,200.00, not his Florida Bar License.

09.30.2009 http://jonathanturley.org/2009/09/30/florida-supreme-court-upholds-sanction-against-lawyer-who-called-judge-a-witch-on-a-blog/

Scene 2 1 MONTH EARLIER – JUDGE GAVELSON’S CHAMBERS

Is this real life?! St. Lucie Attorney’s Story… well, theme song (Tune: Gillian’s Island theme song)

Just sit right back and you’ll hear a tale, a tale of a fateful trial,

That started from this court in St. Lucie County.

The lead prosecutor was a good woman, the 2nd chair was totally awesome,

Six jurors were ready for trial that day for a four hour trial, a four hour trial.

The trial started easy enough but then became rough.

The judge and jury confused,

If not for the courage of the fearless prosecutors,

The trial would be lost, the trial would be lost.

The trial started Tuesday, continued til Wednesday

And then Thursday, with Robyn and Brandon too,

The weasel face

The gang banger defendant

The Judge, clerk, and Ritzline

Here in St. Lucie.

So this is the tale of the trial

it’s going on here for a long, long time,

The prosecutors will have to make the best of things,

It’s an uphill climb.

The New Guy and Robyn

Will do their very best,

To make sure justice is served

In the hornets nest.

No rules of evidence or professionalism,

Not a single ounce of integrity

Like My Cousin Vinny,

No ethics involved, no ethics involved.

Margaret M. DiBianca, ETHICAL RISKS ARISING FROM LAWYERS’ USE OF (AND REFUSAL TO USE) SOCIAL MEDIA, 12 Delaware L. Rev. 179 (2011)

Is this real life?! St. Lucie Attorney’s Story (continued)

Civility? Improper Trial Publicity? Disruption of Tribunal?

You be the Judge.

The story of Florida Assistant State Prosecutor serves as an example of how a lawyer may violate the prohibition against trial publicity. At the end of a “trial from hell,” in which he was second chair for the State, White posted about the case on his Facebook page. His post was written as a parody of the theme song

from Gilligan’s Island and described his own performance during the trial as “totally awesome.”

At the time White posted the update, the jury had completed deliberations but had not returned its verdict, so the risk that the post would “materially

prejudice” the outcome of the case was not significant. But, unless White actually knew that deliberations had concluded, his post would seem to violate

the prohibition against trial publicity.

White’s boss, the Chief Assistant State Attorney, was not troubled by the post, and described it as “harmless joking among family and friends who believed it

would remain private.” The Chief ASA did emphasize that the conduct was not a behavior that his office would encourage and afforded a social-media “training

moment” for lawyers in the state’s attorney’s office.

Margaret M. DiBianca, ETHICAL RISKS ARISING FROM LAWYERS’ USE OF (AND REFUSAL TO USE) SOCIAL MEDIA, 12 Delaware L. Rev. 179 (2011)

JAAB- Broward County’s Blog a moderated site

Just one blog posting on the Broward County judge who had a relationship with prosecutor handling a capital-murder case over which she was presiding…

4/23/2008 2:31 PM her boy wrote:

SHE HAS BEEN SCREWING THE ATTORNEYS FOREVER - SHE'S THE COURTHOUSE WHORE. ASK HER ABOUT HER INVOLVEMENT WITH THE JUDGE CAUGHT WITH HER PANTS DOWN IN THE BUSHES A FEW YEARS BACK...

https://groups.google.com/forum/#!msg/lawmen/dn2s9t4PBqg/7JD739mUyDIJ and

04-23-2008- Letter Re: Formal Bar Complaint of Attorney and Jaablaw Founder

The 411 and Where are They Now? Just one blog posting on the Broward County judge who had a relationship with prosecutor

handling a capital-murder case over which she was presiding…

[Judge] should have known better than to begin a "personal and emotional relationship" with a prosecutor who was trying a death penalty case in front of her in 2007, the Florida Supreme

Court ruled Thursday.

The court accepted the Florida Bar's recommendation to kick [the judge] out of the legal profession permanently.

"Considering [the judge's] dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction," the state's Supreme Court justices wrote in a unanimous decision.

Her resignation came while the Judicial Qualifications Commission was reviewing the misconduct allegations, and she agreed never to run for another judgeship.

[The] court handed down a two-year suspension to the prosecutor, now working as a paralegal in a private firm in Fort Lauderdale.

The Florida Bar, [judge] and [prosecutor]agree on the history of the relationship: The prosecutor and the judge bumped into each other at a restaurant as the trial was drawing to a close. In the five months that followed, the two exchanged 949 cell phone calls and 471 text messages. Their

growing friendship was not disclosed to the defense.

06.05.2014 http://articles.sun-sentinel.com/2014-06-05/news/fl-former-judge-ana-gardiner-disbarred-20140605_1_gardiner-and-scheinberg-loureiro-trial-loureiro-case

Federal Court Judges Gone WILD (it’s not just the state courts or Florida)

Nebraska U.S. District Judge’s Blog Post: “She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including

her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest… I especially appreciate the last two

attributes.”

7th Circuit Court of Appeals Judge on his “Hercules and The Umpire” Blog post: Following the hot-button Hobby Lobby decision- “…Time for the high court to “stfu.” The judge included link to the Urban Dictionary

definition for those unfamiliar with the expression: “Acronym used for the phrase ‘shut the f[#$%] up’ for efficiency reasons.”

2014 http://www.law360.com/articles/591318/judges-find-their-blogs-come-with-a-short-leash

To be continued….

.

Scene 3 INSIDE A DIFFERENT COURTROOM WITH

DIFFERENT JUDGE

RULE 4-3.5 IMPARTIALITY AND

DECORUM OF THE TRIBUNAL

(a) Influencing Decision Maker. A lawyer

shall not seek to influence a judge, juror,

prospective juror, or other decision

maker except as permitted by law or the

rules of court.

(c) Disruption of Tribunal. A lawyer shall

not engage in conduct intended to

disrupt a tribunal.

RE: ACCEPTANCE OF GIFTS

A judge shall not accept and shall urge members of the

judge’s family residing in the judge’s household not to

accept a gift bequest, favor or loan from anyone except

for…

Code of Judicial Conduct, Canon 5

RE: MOTION TO DISQUALIFY:

A motion to disqualify shall: (1) be in writing; (2) allege specifically the facts and reasons (3) be sworn to by the party (4) include the dates of all previously granted motions to disqualify The attorney for the party shall also separately certify that the motion and the client's statements are made in good faith. (d) A motion to disqualify shall show: (1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or (2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial (f) Determination -- Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.

Fla. R. Jud. Admin., Rule 2.330 [note, however, that Fla. Stat. 38.02 provides that a motion based upon the same grounds as stated in (d)(2) above shall be filed within 30 days after learning of the grounds]

“the legal sufficiency of a motion to disqualify a trial judge turns on whether ‘the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial;” . . . the facts underlying the fear must be judged from the perspective of the moving party.” J & J Towing, Inc. v. Stokes, 789 So. 2d 1196, 1198 (Fla. 4th DCA 2001) (allegations that the judge's wife was represented by a party’s counsel in a separate and apparently pending matter held legally sufficient)

RE: INSTRUCTING NOT TO ANSWER Dr. Freeman indeed should have answered, and the arrogance of the defense attorney in instructing the witness not to answer is without legal justification. Nowhere in the Florida Rules of Civil Procedure is there a provision that states that an attorney may instruct a witness not to answer a question. Rule 1.310(d) permits suspension of the deposition pending ruling on improper examination, and that is the appropriate procedure to be followed if the objecting attorney has a valid basis for concluding that an answer to a clearly objectionable question would be so damaging that even though not permitted at trial, the information revealed would be devastating beyond repair. Smith v. Gardy, 569 So. 2d 504, 507 (Fla. 4th DCA 1990)

RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer must not:

(b) fabricate evidence, counsel or assist a witness to testify falsely,

or offer an inducement to a witness, except a lawyer may pay a

witness reasonable expenses incurred by the witness in attending or

testifying at proceedings; a reasonable, noncontingent fee for

professional services of an expert witness; and reasonable

compensation to a witness for the time spent preparing for,

attending, or testifying at proceedings; (emphasis added).

Comment

The procedure of the adversary system contemplates that the

evidence in a case is to be marshalled competitively by the

contending parties. Fair competition in the adversary system is

secured by prohibitions against destruction or concealment of

evidence, improperly influencing witnesses, obstructive tactics in

discovery procedure, and the like.

RE: COURTROOM DEMEANOR

Attorneys should refrain from criticizing or denigrating opposing counsel, the

court/tribunal and their staff, the parties, and witnesses before clients, the

public and the media;

Attorneys should be, and should impress upon their clients and witnesses the

need to be, courteous and respectful and not rude or disruptive with the

court/tribunal, opposing counsel, parties and witnesses.

Attorneys and their staff should act and speak civilly and respectfully to

courtroom deputies and bailiffs, clerks, court reporters, judicial assistants and

law clerks

Palm Beach County Bar Association Standards of Professional Conduct

RULE 4-8.4 MISCONDUCT

A lawyer shall not:

(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis………. (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

.

Scene 4 ATTORNEYS MEET IN A BAR

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not:

(1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer's behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.

(2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

The day after meeting Jim beam, Jose Cuervo decides that not only is this guy (Jim Beam) a good client, but also likely to be one heck of a referral source. He decides to mail him 20 of his business cards along with coozee cups to pass out with them. Knowing Jim beam likes to hang out at the gin mills, he sees this as a way to help flourish his DUI practice. What issues do you think that Jose Cuervo might be running afoul of? a. The rule of thumb that one never sends a coozee cup without a nice cold one to go along with

it.

b. Solicitations for business must include a specfic reference to the fact that the mailing is an advertisement.

c. This process runs afoul of Rule 4-7.18(b)(2)(C) - Statement of attorney or firm qualifications is

required [see guidelines for both lawyer and firm qualifications] d. Rule 4-7.12(a)(2) • All forms of lawyer advertising must disclose the city, town or county of 1 or

more bona fide office locations of the lawyer or lawyers who will perform the services advertised. The geographic

(b) Written Communication. (2) Written communications to prospective clients for the purpose of obtaining professional employment that are not prohibited by subdivision (b)(1) are subject to the following requirements: (C) Every written communication must be accompanied by a written statement detailing the background, training and experience of the lawyer or law firm. This statement must include information about the specific experience of the advertising lawyer or law firm in the area or areas of law for which professional employment is sought. Every written communication disseminated by a lawyer referral service must be accompanied by a written statement detailing the background, training, and experience of each lawyer to whom the recipient may be referred.

Prior Professional Relationship

Persons with whom the lawyer has a prior professional relationship are exempted from the general

prohibition against direct, in-person solicitation. A prior professional relationship requires that the lawyer

personally had a direct and continuing relationship with the person in the lawyer's capacity as a

professional

Disclosing Where the Lawyer Obtained Information

In addition, the lawyer or law firm should reveal the source of information used to determine that the

recipient has a potential legal problem. Disclosure of the information source will help the recipient to

understand the extent of knowledge the lawyer or law firm has regarding the recipient's particular

situation and will avoid misleading the recipient into believing that the lawyer has particularized

knowledge about the recipient's matter if the lawyer does not.

Group or Prepaid Legal Services Plans

This rule would not prohibit a lawyer from contacting representatives of organizations or groups that may

be interested in establishing a group or prepaid legal plan for its members, insureds, beneficiaries, or

other third parties for the purpose of informing such entities of the availability of, and details concerning,

the plan or arrangement that the lawyer or the lawyer's law firm is willing to offer.

.

Scene 5 FAST FORWARD TO THE COURTROOM

1. Cuervo is a Criminal Defense attorney, so clearly he has the technical

proficiency required to represent Beam. What possible problems do you

see with Cuervo’s behavior during the trial?

a. He is likely to get thrown out of the court room for bringing in liquids.

b. He is likely not competent to represent his client due to his intoxication.

c. He is likely unable to diligently represent his client due to his intoxication.

d. Both b. and c.

Pursuant to R.Reg.Fla. Bar 4-1.1, “Competence”, “A lawyer shall provide competent

representation to a client. Competent representation requires the legal knowledge, skill,

thoroughness, and preparation reasonably necessary for the representation.”

Comment to the rule provides, “Competent handling of a particular matter includes

inquiry into and analysis of the factual and legal elements of the problem, and use of

methods and procedures meeting the standards of competent practitioners. It also

includes adequate preparation. The required attention and preparation are determined

in part by what is at stake; major litigation and complex transactions ordinarily require

more extensive treatment than matters of lesser complexity and consequence.”

Further Comment provides, “To maintain the requisite knowledge and skill, a lawyer

should keep abreast of changes in the law and its practice, engage in continuing study

and education, and comply with all continuing legal education requirements to which the

lawyer is subject.”

Pursuant to R. Reg. Fla. Bar 4-1.3, “Diligence”, “A lawyer shall act with reasonable diligence and

promptness in representing a client.”

Comment to the rule provides, “A lawyer must act with commitment and dedication to the interests of

the client and with zeal in advocacy upon the client’s behalf.” “A lawyer’s workload must be controlled

so that each matter can be handled competently.”

Further Comment provides, “Unless the relationship is terminated as provided in R. Reg. Fla. Bar 4-

1.16, a lawyer should carry through to conclusion all matters undertaken for a client.”

In a criminal defense setting, Comment to R. Reg. Fla. Bar 4-6.2 “Accepting Appointments”, provides

that “Good cause exists to [decline representing a client] if the lawyer could not handle the matter

competently.”

Also see, J.R. Phelps, What does ‘competent representation’ really mean?, Fla. Bar News, March 1, 2002, http://www.floridabar.org/DIVCOM/JN/JNNews, which stated, “Bare knowledge of the law is not enough to brand a lawyer ‘competent’. The fact that an attorney possesses skills of technical competency to know the law which applies to a client’s problem is of little value if that knowledge cannot be applied to bring about a tolerable, if not satisfactory, resolution for the client. Clearly, knowledge of the law alone is not enough to brand an attorney truly competent. If, on the other hand, one has the ability ot use and apply the law leading to a client’s solutions, but is unable to produce a work product that reasonably and economically meets the client’s expectations, one has failed to perform competently and the client has not been well served.”

ATTORNEY’S DUTY TO REPORT ATTORNEY MISCONDUCT RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT (a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority. Comment: “The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.”

JUDGE’S DUTY TO REPORT ATTORNEY MISCONDUCT CODE OF JUDICIAL CONDUCT – CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently D. Disciplinary Responsibilities. (2) A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action. Comment: “Canon 3D. Appropriate action may include direct communication with the … lawyer who has committed the violation, other direct action if available, or reporting the violation to the appropriate authority or other agency.”

RULE 4-3.7 LAWYER AS WITNESS (a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case; or

(4) disqualification of the lawyer would work substantial hardship on the client.

(b) Other Members of Law Firm as Witnesses. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by rule 4-1.7 or 4-1.9.

Comment To protect the tribunal, subdivision (a) prohibits a lawyer from simultaneously serving as

advocate and necessary witness except in those circumstances specified. Subdivision (a)(1)

recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely

theoretical. Subdivisions (a)(2) and (3) recognize that, where the testimony concerns the extent

and value of legal services rendered in the action in which the testimony is offered, permitting

the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue.

Moreover, in such a situation the judge has first-hand knowledge of the matter in issue; hence,

there is less dependence on the adversary process to test the credibility of the testimony.

Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which

another lawyer in the lawyer's firm will testify as a necessary witness, subdivision (b) permits

the lawyer to do so except in situations involving a conflict of interest.

What about the Prosecutor talking to a Defendant who is represented by counsel?

What is the Florida Lawyers Assistance Program?

Florida Lawyers Assistance, Inc. is a non-profit corporation formed in 1986 in response to the Florida Supreme Court’s mandate that a program be created to identify and offer assistance to bar members who suffer from substance abuse, mental health, or other disorders which negatively affect their lives and careers (Bar Rule 2-9.11). FLA is independent of The Florida Bar, although it does receive funding from that organization. Paramount to FLA is the protection of confidentiality for those attorneys who contact FLA for help. Confidentiality in voluntary cases is protected by a written contract with The Florida Bar which guarantees the confidentiality of FLA records, as well as by Bar Rule 3-7.1(j), Chap. 397.482-486, F.S., and other state and federal regulations. Judges, attorneys, law students, and support personnel who seek the assistance of FLA need not worry that FLA will report them to the Bar, the Board of Bar Examiners, or their employer. Information is shared with these entities only if the participating individual signs a waiver of confidentiality. FLA’s primary purpose is to assist the impaired attorney in his or her recovery.