There is a litigation privilege in Florida and indeed in many jurisdictions. This is discussed in depth in The Litigation Privilege (October 2017) and Defamation in the News (September 2018). This is a protection from defamation allegations regarding "what occurs in legal proceedings." This privilege "prevents most comments from being actionable defamation." However, I cautioned in the Privilege post that just because "a statement is not defamation does not render it immune from consideration or review." There are examples of imposition of sanctions, Judicial Qualification Commission proceedings, and lawyer rules of professionalism to consider.
In December 2018, the Florida Third District Court decided Bank of America, N.A. v. Atkin, ___ So. 3d ___; 2018 WL 6595138 (Fla 3rd DCA 2018). It is an extraordinary writ case, with the bank seeking a writ of prohibition. The three most frequent types of extraordinary writs are discussed in If it is Moot, What Does it Matter (August 2018). The situation lends itself to further analysis as it is one of those examples of significant implications despite there being no cognizable defamation. It is also pertinent because the statements in question were not in a trial proceeding.
An attorney in the Atkin appellate proceeding filed a response to the Bank's petition for writ, which contained statements that the Court concluded were "recklessly impugning and disparaging (to) the judges of this court and two judges of the circuit court." The opinion quotes these in detail, but includes that the Court "ignored . . . precedent," "falsified facts"; and the attorney further questioned the Court's impartiality, and asserted that a circuit judge disregarded the law and constitutional rights in making a ruling in an unrelated, previous case that this appellate Court had thereafter affirmed.
Later, the attorney filed a petition for review with the Supreme Court of the United States (SCOTUS) in Atkin. In documenting the arguments to be raised there, the attorney included statements "impugning and disparaging the judges of this court (Third District) and the Florida Supreme Court." These included allegations of the Court misrepresenting facts, ignoring precedent, and accusing the Court of "dishonesty," "factually dishonest opinions," partiality, "cover-up," and of "ignoring fraudulent conduct." These are serious allegations to level. The fact that such allegations were made against multiple courts and judges itself is worthy of note.
The Third District in December issued an order to show cause, and compelled the attorney to address the statements made. The Court noted that:
"Every lawyer admitted to the Florida Bar has sworn that he or she 'will maintain the respect due to courts of justice and judicial officers' and to 'abstain from all offensive personality.'”
The Court explained that "insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy." Such language risks "alienating the very judges the lawyer was hired to persuade." Therefore insults are "not attempts at persuasion," but instead are "the abandonment of any attempt to persuade."
A lawyer "venting" frustration in pleadings or in a hearing "cannot be justified as a means to identify problems in the legal system." The result is not an improvement in the system, "because insults usually garner resistance to an idea rather than a sympathetic consideration." In other words, when you insult someone it builds walls, not bridges. That particular point applies to parties in litigation making references to one another. Disparaging an injured worker or an employer with insults is unlikely to engender good feelings or encourage productive communication.
Notably, the Atkin Court reminds us, that “attorneys play an important role in exposing valid problems within the judicial system." It is a responsibility that they do so. However, statements "made with reckless disregard as to their truth or falsity, erode public confidence in the judicial system without assisting to publicize problems that legitimately deserve attention.” Florida Bar v. Ray, 797 So. 2d at 556, 560 (Fla. 2001). Furthermore, as I stress each year when it is time for the survey, "the point is not to belittle, insult, or slur," but to provide positive suggestions on how something might be done better and more effectively.
The Court also noted that this attorney had "previously three times (had) denied" various motions to disqualify the entire Third District Court. In the Atkin case, the attorney again filed such a motion. Based upon the Court having "denied virtually identical motions," filed by this attorney, it concluded that the filing of that significantly similar motion in this case violated court rules and justified the imposition of sanctions. The Court concluded that:
"In light of these prior denials, the fourth motion to disqualify appears to have been designed to serve no other purpose than to allow (the attorney) to express 'the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief.'”
Upon those conclusions, the Court ordered the attorney to show cause why sanctions should not be imposed. The response was filed in early January 2019. The response provided an explanation and admitted that the statements quoted by the Court were "unprofessional and unwarranted.” The response also explained steps the attorney had undertaken “to prevent any reoccurrence.” The Court was duly impressed, it appears, with the admission of fault, the acceptance of responsibility, and the efforts to prevent recurrence. The Court noted: "Frankly, if this were an isolated event, we would be inclined to end this matter."
But, this was not the first such encounter this attorney had with this Court. The Court noted prior similar conduct, stating "We have previously sanctioned (the attorney) for similar unprofessional statements." On April 10, 2019, the Court entered an order of referral, sending the matter to The Florida Bar for investigation. The Court concluded that it was "not in a position to ascertain the veracity of this latest explanation" from the attorney. Furthermore, it was concerned with a perception that the attorney's "latest explanation is inconsistent with the previous one."
The lessons and reminders in Atkin are numerous. First, things said in litigation may not be "defamation," but they can still cause trouble for the speaker or writer. Second, those statements might be made entirely in an appellate action, in an attempt to change a trial decision or outcome; one might exercise caution in describing feelings about a trial. Third, it is important to be forthright when confronted; accepting responsibility, being proactive in preventing future recurrence, and being contrite are all appropriate and helpful. Finally, the Atkin matter proceeded to The Florida Bar primarily because on two occasions this attorney provided explanations, and the Court at least perceived those were not consistent. Consistency may be a critical issue in any proceeding; one which deserves attention and consideration.
But really, only one point is necessary to remember: "You catch more flies with honey than with vinegar." If you are striving to convince someone of something (a party in mediation, a judge or witness at trial, an appellate court), attacking, belittling, or insulting is unlikely to accomplish your goal. The height of professionalism is accomplishing your goal, achieving your end, without resorting to such. The best cross-examining lawyers I ever witnessed managed to achieve what they needed (discrediting or even co-opting) with a witness without that person ever realizing what had happened. The best litigators are effective without being mean, name-calling, or bullying.
This is perhaps a good example also of the value of a mentor or peer to whom you might express such irrepressible feelings. Internalizing frustration and anger might be damaging, despite the deposition, hearing, trial, or pleading being an inappropriate place to vent. Every lawyer, judge, adjuster, or otherwise should have someone to whom she or he is comfortable getting feelings and emotions expressed and relieved.
