Academic

Lawyer Disciplined for Blog Comments About a Judge

By Calvin Massey

The New York Times ran an article a few days ago on the pitfalls into which lawyers can fall through blogging and social networking sites.  The portion that interested me most concerned Sean Conway, a Florida criminal defense attorney who complained on a blog that the judge was an "Evil, Unfair Witch" because she gave defense lawyers only a week to prepare for trial while other judges on the same court regularly provided a month for preparation.  Conway apparently asserted in the blog post that he thought the reason for the short prep was to pressure defense lawyers to waive their right to have felony cases tried within 175 days, thus placing those cases at the end of the queue.  Although the ACLU contended, on Conway's behalf, that his comments were entitled to the constitutional protection afforded public employee speech under Pickering and Connick because his comments were of public concern, the Florida Supreme Court affirmed a reprimand agreement Conway had reached with the State Bar.  The Florida court apparently accepted the State Bar's argument that Conway's comments were not entitled to Pickering/Connick protection because the posting was a "personal attack ... not uttered in an effort to expose a valid problem."  

 I think this is wrong.  Neither Pickering nor Connick examined the motive of the speaker in determining whether the comments were of public concern.  Indeed, in Connick the speaker's questionnaire was mostly designed to air a personal grievance, but because the substance of one of the questions was of public concern the Pickering balancing test applied.  It may be that after application of that test Conway's post is susceptible to discipline, but at least the Florida bar and the Florida Supreme Court should apply the right standard.  

Full post as published by The Faculty Lounge on September 15, 2009 (boomark / email).