Jon Mcgowan | The McGowan Law Firm
Recent opinions from the U.S. Supreme Court have brought an elevated focus on the court and the judiciary.
Even before the recent term, political discussions existed as to the operation of the court, leading to President Joe Biden forming a Presidential Commission to review possible changes to the court.
This heightened interest raises a question as to the role of attorneys in the discussion. While it is easy to get caught in the emotion of the political debate, we must remember that we are in a regulated field that forces us to choose our words carefully or face potential professional repercussions.
Those repercussions are real and gaining momentum. In April, an Ohio attorney was publicly reprimanded for a 2018 incident where she heckled a judge during an award ceremony at a Bar function. Her First Amendment argument failed; however, her language was particularly vulgar and on full display to the local legal community.
In Florida, attorneys have faced reprimand for comments on social media, or at least in part. In 2019, a Fort Lauderdale attorney was disbarred for repeated disparaging comments she made on social media about another attorney.
Currently, a Miami attorney is facing discipline from the state Supreme Court for comments he made about the court, initially on social media, then in a court pleading.
What is notable about the Miami case is that the tone is mild compared to the other two and is in an area where passionate attorneys may wander in an online debate.
The attorney’s statements referenced in the complaint included: “This foreclosure crisis was such an interesting phenomenon. Courts kept covering up for Banks that were intentionally doing it wrong.” “It’s as if they knew the Courts would always let them get away with it. Some out of fear as elected officials. Some out of indifference.” “The judges decide the rule of law, and whether any rule of law exists. Maybe the rule of law only applies to the rest of us.”
Another Florida attorney is facing ethics and contempt charges following a news interview he did after losing a hearing before the 1st District Court of Appeal in which he stated “I do find it interesting that this opinion attacking my critiques of Gov. DeSantis appeared just two days after I launched a (political) committee to remove Ron DeSantis.” The First DCA took the rare step of initializing the complaint themselves.
The court stated in The Florida Bar v. Ray, 797 So. 2d 556, 558 (Fla. 2001), “the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements.”
As attorneys “are viewed by the public as having unique insights into the judicial system,” the state has “a compelling interest in preserving public confidence in the judiciary.”
That standard points to a broader responsibility that goes beyond the four corners of the Rules of Professional Conduct. It is our responsibility to protect the integrity of the profession, including the public confidence in the judiciary.
Engaging in ad hominem attacks against the court because we disagree with an opinion damages the court and the legal profession. You can disagree, while still showing respect for the institution.
The American Bar Association set an example in their statement on Dobbs v. Jackson Women’s Health Organization. In the statement, the president of the ABA disagreed with the court’s opinion, citing the ABA amicus brief, but also reaffirmed the ABA’s commitment to “enhance respect for the judiciary and advance the Rule of Law.”
Legal minds can disagree, that is why dissenting opinions exist. You can dislike a court opinion, while not personally attacking justices or the integrity of the court. You can believe a judge erred, without incorrectly assigning malice.
As attorneys, we have to set the standard for the tone of the debate.
We must choose our words carefully and understand the weight they carry when we give an opinion on the court and the judicial branch, if for no other reason than to uphold the oath we swore to “maintain the respect due to courts of justice and judicial officers.”
Jon McGowan is founder of The McGowan Law Firm in Jacksonville Beach. He practices business law, local government law, international business law and environmental law.