In which the imaginary lawyer believes in unicorns

At Simple Justice, Scott Greenfield took the case of ill-considered Kristine Peshek's ill-considered blawg as an opportunity to talk about a lawyer's duty of confidentiality to the client and the dangers of foolish blawggery. In the NY Times, her case is one of several mentioned in an article on the dangers of social networks for lawyers.

If the charges against her are true, what she did is inexcusable.

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A digression. These days, of course, nothing that people say seems without excuse.

Just ask Congressman my-name-isn't-really-Joe Wilson, of whom pretty much nobody ever heard until he could just no longer control himself and shouted out, "You lie" while the President spoke to Congress. It was spontaneous, he said, he was just so upset about the chance that an undocumented person may get health care that he couldn't control himself.

Or ask Assemblyman Michael Duvall, dubbed "Open Mike" by Kevin at Lowering the Bar. He's the guy who bragged to a fellow member of the California Assembly about how he, a member of the Utilities and Commerce Committee, was cheating on his wife with a lobbyist for a major energy company (with details about skimpy underwear and spanking and her youth and enough other fun things to keep Ken Starr busy for years should he get involved) and, oh, yes, was cheating on her, too. But you know, he explained just before he resigned from the Assembly, he was really just telling a story, amusing his colleague with how he does those things, and defaming his not-really paramour just for fun, so it's OK.

End digression.

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Anyway, what set me off on this isn't Ms. Peshek but the story of another lawyer in the Times article, Sean Conway.

Angry that Judge Cheryl Aleman of Broward County, Florida, set unreasonable trial dates, forcing defendants to waive their speedy trial rights in order to have sufficient time to prepare for trial, Sean Conway blogged about her. She (I suppose it was she) filed disciplinary charges against him. How dare he refer to her as "EVIL, UNFAIR WITCH." And although she's being disciplined for exactly what he complained about her doing, that didn't help his case. You see, lawyers aren't supposed to criticize judges.

Consider Mark Gardner. Mark's an Ohio lawyer. Back in 2001, Mark lost an appeal on behalf of a guy convicted of driving under a suspended license.

Losing appeals is rarely a surprise. Mostly we shrug and move on. It's the nature of litigation that someone loses and the lawyers go home and do it again the next day. Besides, even when we're right, and we're not always, we mostly lose appeals. There are all sorts of reasons, many having to do with legal arcana like deference to the decisions of trial courts and standards of review. Sometimes we lose because of the heinous crime rule. And sometimes we lose because the courts are lazy or incompetent or (wait, I don't mean that, never happens, if I said it I misspoke, but I didn't say it, delete, delete, delete).

This time, Mark was incensed. (And that happens to all of us, too. Some of those losses are so wholly unreasonable and offensive that - wait, once again, I didn't mean that, what I meant is that sometimes we delude ourselves about the chances.) So he filed a motion for reconsideration in which he went, perhaps, a bit over the top. Here's how the Ohio Supreme Court described it, omitting some of the jucier stuff:

. . . In a motion seeking reconsideration or, in the alternative, certification of the case as a conflict to this court, respondent accused the panel that decided his client’s appeal of being dishonest and ignoring well-established law. He declared that the panel had issued an opinion so “result driven” that “any fair-minded judge” would have been “ashamed to attach his/her name” to it. He then added that the panel did not give “a damn about how wrong, disingenuous, and biased its opinion is.”
Throughout the several pages that followed, respondent inveighed against the panel, contrasting it with “fair-minded Ohio appellate districts” and stating that “[n]o matter how bad [the] panel wants to skew or ignore the facts,” it could only conclude that his client had been improperly charged. He lamented that “honesty and truth [were] damned” in the panel’s opinion and that the panel’s “desire to be ‘tough on crime’ [had] blind[ed] it to basic law and fairness.” Respondent then posed these questions: “Why does this panel only apply the law as a hammer to crush citizens and not as a shield to protect their basic rights?” and “Is having a prosecutorial bent [so] hard to let go of that truth must be cast aside to achieve a particular result?”
Respondent went on to accuse the panel of having “distorted the truth” and having “manufactured a gross and malicious distortion.” His discussion continued:
“Wouldn’t it be nice if this panel had the basic decency and honesty to write and acknowledge these simple unquestionable truths in its opinion? Would writing an opinion that actually reflected the truth be that hard? Must this panel’s desire to achieve a particular result upholding a wrongful conviction of a man who was unquestionably guilty of an uncharged offense—necessarily justify its own corruption of the law and truth? Doesn’t an oath to uphold and follow the law mean anything to this panel?
“Is that claim that ‘We are a nation of laws, not men’ have any meaning after reading the panel’s decision? Can’t this panel have the decency to actually address—rather than to ignore—the cases cited by [the client] which demonstrate beyond any doubt that he was convicted of an offense he was never charged with having violated?
“In this case, beyond the ignored concepts of the law and truth, lies that of policy. As a policy matter, is this court really encouraging all officers in the Eighth District to charge a generic statute—or Chapter or Title—and not the particular offense they are accusing a citizen of violating? In the name of God, WHY? What is so difficult with a police officer doing his job in an intelligent manner? Why must this panel bend over backwards and ignore well established law just to encourage law officers to be slovenly and careless? In State v. Homan (2000), 89 Ohio St.3d 421 [732 N.E.2d 952], didn’t the Ohio Supreme Court just state that officers actually have to follow the rules strictly? Doesn’t that mean anything to this panel?
“Perhaps, if this panel is not strong enough to admit its obvious prosecutorial bias in its opinion, it will discover the internal fortitude to certify this matter to the Ohio Supreme Court under Rule IV of the Rules of Practice of the Supreme Court of Ohio.”

OK, it's strong stuff. And as I said, the court actually omitted some of the harshest language. It's also not particularly good lawyering since there's rarely anything much to be gained from an appellate court by pissing it off. But Mark was angry and intemperate.

We all (You all, not me, ever) think things like that about courts. Writing them down is fine. Then you sleep on them and store them in a file to amuse yourself with someday or for the book you'll write after you retire. Or you burn them. Mark filed his motion.

Here's another bit of reality. Nobody reads motions for reconsideration except the judges (maybe), some of their staff, and opposing counsel. Ordinarily, nobody else even knows they've been filed. They're matters of public record only in a theoretical sense. But someone, almost surely one of the judges, brought this motion to the attention of disciplinary counsel. And they called Mark out.

It's opinion. It was hyperbole. The first amendment protects that, Mark said. Besides, truth is an absolute defense. The Supreme Court of Ohio ("supreme" means that what they say, goes) saw it differently. The relevant ethics rule in Ohio (yes, lawyers have ethics rules; which is what this whole post is about), says that lawyers

shall not knowingly make false accusations against a judge or other adjudicatory officer.

That seems simple enough. You can't affirmatively lie about judges. Opinions aren't lies. And the truth is an absolute defense. We started there. But the Supremes didn't. They started with a fact they believed: Lawyers believe judges to be honest, to act at all times with integrity, and to be scrupulously fair. Or something. The test is to be objective, they said, not whether the speaker (Mark) believed the judges were upright and loyal and brave and honest and honorable and always prepared (wait, that's the boy scouts) but whether they actually are. And the way we determine whether they actually are, the court said, is by what other lawyers would be imagined to believe.

Huh? What's that?

Here's the actual language:

Accordingly, we hold that an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false.

Truth is determined not by facts but by the beliefs of some hypothetical lawyer.

Mark's license was suspended for 6 months. That was a serious blow. The First Amendment, and good sense, suffered even more.