PBCBA BAR BULLETINS pbcba_bulletin_February 2019 | Page 18

PROFESSIONALISM C o r n e r
STICKS AND STONES MAY BREAK YOUR BONES,
BUT WORDS CAN GET YOU SANCTIONED
LAUREN JOHNSON
Introduction
Have you ever wanted to voice some, let’s
say, “colorful” opinions about a certain judge
that you feel has been impartial towards you
or your client? Or maybe you’ve wanted to
express your frustrations about a judge you
feel has treated you or your client unfairly.
Before you do so, you might want to think
twice, and review the Rules Regulating the
Florida Bar, specifically Bar Rule 4-8.2.
Bar Rule 4-8.2
a letter containing “emotionally charged
statements with conspiratorial overtones”
voicing his belief that the State court judges
were biased against him and that the legal
system was rife with alleged corruption
and favoritism of certain individuals. Id.
at 5-6. For example, the lawyer’s letter
suggested that his opposing counsel’s
burden at oral argument “was lighter than
it should have been” based on a photograph
of a State appellate judge and the lawyer’s
opposing counsel together at the judge’s
investiture. Id. at 13. In the letter, the lawyer
also compared the injustice suffered by his
client to the Biblical story of Susanna in
which a Hebrew wife was falsely accused
and blackmailed by two dishonest men. Id.
at 3. The lawyer also sent his impassioned
letter to trial court and appellate judges
from the prior State case. Id. at 4.
According to Rule 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, public legal officer,
juror or member of the venire, or candidate
for election or appointment to judicial or
legal office.”
The Florida Bar filed a complaint against
the lawyer for the comments in the
The Comment to the Rule provides that letter, alleging that the lawyer violated
“[e]xpressing honest and candid opinions various Florida Bar Rules, including Rule
on such matters contributes to improving 4-8.2. Id. at 1. After a hearing, the referee
the administration of justice,” however, recommended that the lawyer receive a
“false statements by a lawyer can unfairly public reprimand, be placed on a one-year
undermine public confidence in the probation with various conditions, and
administration of justice.” Seems simple, pay costs of $2,827.09; however, the referee
right? Not so fast.
recommended a finding of no guilt as to Bar
Rule 4-8.2. Id. at 7. The Florida Bar sought
A Cautionary Tale
review of the referee’s report by the Florida
Supreme Court, seeking further sanctions
Recently, the Florida Supreme Court and findings of guilt against the lawyer. Id.
disciplined an attorney under that exact The lawyer did not file an answer brief, and
rule in The Florida Bar v. Patterson, 2018 the Court directed the lawyer to show cause
WL 5095158 (Fla. Oct. 19, 2018). In this per why the Court should not impose a more
curiam opinion, the Court found that a severe sanction against the lawyer than the
lawyer’s disparaging statements in a letter referee recommended. Id. at 7-8.
and court filings “contributed to the general
lack of civility and professionalism [the As the Court noted, the standard for
Florida Supreme Court] is striving to curb in determining if there has been a violation of
the legal profession.” Id. at 15.
Rule 4-8.2 is whether the lawyer making the
statement had an objectively reasonable
The lawyer in that case had represented factual basis to make the statement. Id. at
a client in a State civil action in which he 12. The lawyer had testified at the referee
and his client were sanctioned for acting hearing that his belief that an injustice
in bad faith, which sanctions were affirmed occurred to his client came from the
on appeal by the Third District Court of alleged influence that his opposing counsel
Appeal. Id. at 3. In a related Federal civil and opposing counsel’s firm had in the
rights action in the Southern District of community, i.e. the photograph of the State
Florida, with the same client and same judge and opposing counsel together. Id.
lawyer, the lawyer sent the District Judge at 13-14. The Court found that the lawyer’s
PBCBA BAR BULLETIN
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testimony failed to establish an objectively
reasonable factual basis for any of his
colorful statements in the letter and that
there was likewise a lack of any evidence in
the record to establish such a factual basis.
Id. at 14.
According to the Court, the lawyer’s
statements and conduct was more than
careless neglect. Id. at 16. “Such conduct,
while an inconvenience or a mere slight to
those initially confronted by it, ultimately
emboldens others to engage in similar
unprofessional or disrespectful acts, the
net effect of which is the gradual erosion
of public confidence in the courts and the
decisions rendered by them,” Id. at 17.
The Court was clearly shaken by the
unprofessionalism the lawyer showed
towards judges and other professionals in
his letter and in court filings. Therefore, the
Court rejected the referee’s recommended
discipline, found the lawyer guilty as to
violation of Rule 4-8.2(a), and instead
imposed a one-year suspension from the
practice of law.
Conclusion
To be sure, Rule 4-8.2 is not meant to shield
judges from honest criticism in a free
system of checks and balances. What this
boils down to is, if you want to question
the qualifications or integrity of a judicial
officer, your allegations better be true and
you better have a sufficient factual basis to
back it up. Otherwise, you could be looking
at some serious and lengthy repercussions.

* Lauren Johnson (Ljohnson@mccaberabin.
com) is an associate at McCabe Rabin,
P.A. practicing business, securities, and
whistleblower litigation.