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Friday, July 02, 2010

Can you call a judge a "narcissistic, maniacal mental case"? Not if you're a lawyer

You may, perhaps, have already heard about Illinois lawyer Melvin Hoffman, who after 35 years without a blemish on his law license, is facing a six-month suspension, primarily for calling an administrative law judge for the Department of Children and Family Services a "narcissistic, maniacal mental case" who "should not be on the bench" in a phone conversation with the judge and opposing counsel. Mr Hoffman followed this up with a letter to the judge that read:

I must note further that during our telephone conference on February 8, 2008, you personally stated: "I have no problem with the matter being heard in LaSalle County." If that is correct, and no Motions are pending in Cook County, it is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict.

As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?

There is a little more to the story.  

There always is.  But the Review Board found that attorney Hoffman acted with knowledge or reckless disregard as to the falsity of his statements that impugned the integrity of a judge.  The Review Board interpreted Hoffman's statements as making straightforward factual claims that the judge was unfit.   They apparently did not consider whether the statements might instead by hyperbole--an emotional rant based on a perceived injustice toward a client.  If the statements were hyperbole, which the first outburst certainly might have been when viewed in context, it would be impossible for Hoffman to have made the statement with actual malice because hyperbole is not capable of being interpreted as stating actual facts.  It is also open to question how much the integrity of the justice system is threatened by one lawyer going off on a rant in judge's chambers in the presence of opposing council and the judge.  As I said, there are more facts here, but the "speech" issue, together with Hoffman's lack of remorse for speech he believed to be protected by the First Amendment, were the primary reasons the Review Board gave for his suspension.

I always find myself torn in cases like this one that assert that attorneys receive fewer free speech rights than other citizens when acting in their roles as officers of the court. On one hand, the justice system depends on lawyers and the public respecting the authority of judges.  On the other, this lawyer was speaking out against what he believed to be a gross injustice against his client.  Certainly his language was disrespectful, and the judge felt personally insulted, but I wonder whether the integrity of the justice system really depends on lawyers having fewer rights to speak about it than other citizens, particularly since the only audience was the judge himself  and opposing counsel.  [If you want to see all the possible arguments on both sides of the question of whether attorneys deserve fewer speech rights than other citizens when acting as officers of the court, the various opinions in the Supreme Court case of Gentile v. State Bar of Nevada are the place to start. As you might guess from the tenor of this post, I'm a fan of Justice Kennedy's opinion in that case. ]  

Posted by Lyrissa Lidsky on July 2, 2010 at 05:20 PM in First Amendment, Lyrissa Lidsky | Permalink

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Comments

This case's distinctive feature is almost always ignored: Melvin Hoffman's judge bypassed the safeguards in proceedings for contempt and other sanctions to use professional discipline as a forum-shopping device. See kanBARoo court, "Judicial Narcissism versus Justice: the Melvin Hoffman Matter," for further analysis. (http://tinyurl.com/2vjvbzz)

Posted by: Stephen R. Diamond | Jul 13, 2010 6:57:10 PM

Well, I have certainly wanted to say that a time or two myself, but we need to maintain our civility in our profession.

Posted by: scott | Jul 7, 2010 1:33:00 PM

It's worth remembering that this happened in a state with a rich tradition of judicial corruption (Greylord, the Capone dominated Chicago judiciary, and so much more) as well as overt political domination of the judicial appointment process. This is the same IARDC that failed to respond strongly to prominent lawyers "lending" money to corrupt Greylord judges before whom they practiced that now imposes greater sanctions on a lawyer who dares to criticize a judge. This action by the IARDC can only chill the next attorney who might respond to or report inappropriate judicial behavior. It's outrageous, really.

Posted by: Anon | Jul 5, 2010 3:23:15 AM

The umpire analogy breaks down. Having the State order you to stop practicing your profession for six months (which may mean retaking the Bar and petitioning for reinstatement) because you violated protocol is a much more severe sanction than being thrown out of a baseball game. I find it particularly troubling in this instances that they harped about his lack of remorse for what, in Hoffman's mind at least, was speaking truth to power. It smacks of "re-education."

Posted by: Lyrissa | Jul 3, 2010 3:47:24 PM

Howard,

Actually, this is one of the topics where the analogy holds pretty well -- although, admittedly, it's not the usage Roberts made. With both lawyers and baseball players there are protocols for how to correctly or incorrectly criticize the judge/ump. In both cases, there is a somewhat stilted manner for properly delivering the criticism. As just one example, both lawyers and baseball players avoid using the person's name. They say, "Your Honor," or "blue" or whatever. The MLB norm used to be that you can say that the call was "horsespit" but you couldn't say that about the ump. And you're you get more leeway if you criticize the ump without looking directly at him or facing him. All the norms derive from the fact that the ump and judge are trying to manage a competitive process day in and day out, where nerves fray and tempers flare, and yet the judge/ump can't be viewed as just another competitor in the fight.

This lawyer in this story may well have had grounds for criticizing the judge severely, but as a general rule the courts can't permit that particular form of rhetoric.

Posted by: John Steele | Jul 3, 2010 10:43:33 AM

Howard, I think you've confused the content of the relationship with the structure (I have no dog in the whole hunt re judges and umpires BTW). There is a protocol between lawyers and judges, and a protocol between managers and umpires. If you abide by the protocol (whether it sounds "respectful" or not), you are fine. If you violate the protocol (i.e., call the umpire anything, but if you call him a M-F, you are ejected), you get punished.

Posted by: Jeff Lipshaw | Jul 3, 2010 6:06:37 AM

One of the ways that I thought the judge/umpire analogy failed is over what you can say. You are supposed to be respectful to a judge; think about how managers yell at umpires . . .

Posted by: Howard Wasserman | Jul 2, 2010 9:20:59 PM

Who better to speak to the mental instability or biases, hyperbolic or not, of a judge than an attorney? Promoting respect for the judiciary is a fine goal, but gagging the one set of people who are probably most qualified to talk about a judge's terrible behavior on the bench seems like overkill to protect judges' image. (As an aside, these horrible senate confirmation hearings do more to undermine the judiciary than any flippant hyperbolic comments made by one attorney about one administrative judge....)

I can't see how more than a simple fine was in order here.

Posted by: Paul | Jul 2, 2010 5:42:30 PM

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