No free speech for lawyers?
We read:
"According to a recent article in the New York Times, a private attorney has been reprimanded by the Florida Bar Association for describing a local judge as an “evil, unfair witch” on his blog. The lawyer was angry over the judge’s practice of giving criminal-defense lawyers only a week to prepare for trial rather than the customary month or more. According to the lawyer, Sean Conway, the judge’s motive was to pressure defense lawyers into seeking a delay, thereby waiving their client’s right to a speedy trial.
What about a principle called freedom of speech? After all, it’s not as if the lawyer was in the courtroom when he described the judge in such nasty terms. He was outside the courthouse, like at his private office or his home.
The rationale for punishing the lawyer arises from one of the most pernicious — and false — doctrines ever promulgated in the legal profession, one that most lawyers unfortunately have come to meekly accept. It’s a doctrine that claims that private lawyers are “officers of the court,” thereby subjecting their conduct, even outside the courtroom, to the control of the state.
Private lawyers are no more “officers of the court” than their clients or, for that matter, spectators in the courtroom. The “officers of the court” are those people who are on the court payroll — those who receive a paycheck from the government (i.e., the taxpayers). Court bailiffs are officers of the court. So are judges and prosecutors. These people work for the state as court personnel. That’s what makes them “officers of the court.”
Too bad Sean Conway decided not to fight the state’s punishment for his blog post about that judge all the way to the U.S. Supreme Court. It would have given the Court the opportunity to clarify that the Constitution guarantees the fundamental rights of private attorneys as much as those of everyone else.
Source
3 comments:
Hello Good Gentles All!
While not disputing anyone's right to speak his mind I must ask myself just how competent is a lawyer who makes such statements about a sitting judge in front of whom he argues. As a potential client, facing a criminial prosecution no less, I would not want any lawyer who has seen fit to pick a fight with the judge presiding over my trial. It is hard enough to have judicial impartiality but to antagonize the judge certainly can elicit sub-conscious if not conscious animous against me.
BTW, I think there might be an error in the source, to wit: "Private lawyers are no more “officers of the court” ... "
"officer of the court
n. any person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks and other personnel. As officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts."
(http://dictionary.law.com/
Default.aspx?selected=1385)
From the ABA web site:
Officers of the Court
The judge presides in the courtroom. If a case is tried before a jury, the judge rules on points of law and gives instructions to the jury, informing the jury about the law that governs the case. (The jury determines the facts based on the evidence presented.) If there is no jury, the judge determines the facts and decides the verdict - e.g., finding of guilty or not guilty in a criminal case, or a finding for or against the plaintiff in a civil trial.
The court clerk or bailiff usually administers the oath to prospective jurors and to witnesses. The clerk is also in charge of physical exhibits introduced into evidence and is responsible for other administrative aspects of a trial.
The bailiff keeps order in the courtroom, calls the witnesses and is in charge of the jury, as directed by the judge. It is the bailiff's duty to be certain no one attempts to influence the jury.
The court reporter records verbatim (word for word) everything that is said as part of the formal proceedings in the courtroom, including the testimony of the witnesses, objections made by the lawyers, and the judge's rulings on those objections. In many jurisdictions, audio or audio-visual tapes are used to record the trial in lieu of a court reporter, particularly at the misdemeanor level. In some jurisdictions, both methods are employed, with the reporter’s record used if there is an appeal to a higher court, though occasionally the tapes become part of the record of an appeal.
THE LAWYERS FOR BOTH SIDES ARE ALSO OFFICERS OF THE COURT. (emphasis added, InFides) Their job is to represent their clients zealously, within the formal rules of the Code of Professional Conduct. The belief is that justice can best be achieved if each side’s case is vigorously presented by competent legal counsel.
(http://www.abanet.org/
publiced/courts/
court_officers.html)
Pax,
InFides
"The belief is that justice can best be achieved if each side’s case is vigorously presented by competent legal counsel."
Competency on the defensive side being determined by how much money you have.
Hello Good Gentles All!
Hello McNasty!
Well said sir. One of my law professors used to say that the difference between being right and proving you are right is legal fees.
Pax,
InFides
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