Doesn’t it seem like a lot of bad things happen in Florida?  Well, there’s one new threat to add to the list.  Sean Conway, a former public defender now in private practice, may lose his license for having  critically blawged about “embattled Broward Circuit Judge Cheryl Alemán, calling her an ‘evil, unfair witch.‘ ” as reported in the South Florida Sun-Sentinel, via How Appealing, Capital Defense Weekly, and Real Lawyers Have Blogs.

“Last week, as Alemán was on trial for alleged misconduct before the Judicial Qualifications Commission, The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge’s qualifications or integrity.

Clearly, this development has some serious consequences for blawgers who seek to exercise free speech by opining critically about important issues, cases, rules and public officials.  The fact that Judge Aleman may indeed be an “evil unfair witch” really isn’t relevant, as no one wants that to be the test of free speech, so don’t let the detail sidetrack the debate.

We know, as attorneys, that we live and work under conflicting ethical obligations and rules.  On the one hand, we are not to impugn the integrity of a judge.  On the other, we are obliged to aid in the public’s understanding of the law and to improve the administration of justice.  If a judge is bad, it would be wrong to conceal it.  But if we reveal it, we are wrong to impugn the judge.  Ethics is often a moving target, only to be defined by post-hoc determination of which rule some local body wants to enforce that day.

My guess is that Conway’s criticism was so harsh that it scared the crap out of the local ethics committee, to the point where they feared that if they let it go, it would open the door to venomous attacks on judges on the internet, whether fair or not, that would wreak havoc on the judiciary.  Since Judges are prohibited from defending themselves, this makes the game unfair and leaves it to the disciplinary committee to “fix” the problem.

But the flip side is that lawyers are people too, and thus have a right under the 1st Amendment to speak their minds on subjects of public importance.  No one ever told us as we were being sworn in that we would have to relinquish our constitutional rights in order to stand in the well.  And indeed, if lawyers don’t talk about judges, how would the public know what really happens in their courts?

While this is happening in South Florida, the place where hanging chads gave us a war in a country whose name most people mispronounce, it may very well have a chilling effect across the blawgosphere.  We may desire to blawg for good purposes, but how many lawyers are prepared to lose their license should they step over that wavy line?  Good sense tells us to stay away from saying anything controversial about judges, which could include dumb court decisions or bad rulings or judicial corruption.  What’s left?

The fear is that this will prove to be a cancer that spreads across the blawgosphere, and across the nation’s grievance committees.  It will be the judge’s weapon of choice for stifling online criticism of them, their practices and their decisions.  It will make blawgs incredibly boring and pointless.

I’ve never shied away from calling a judge, or a decision, they way I see them.  But then, I do it in the courtroom as well, and don’t hide behind my blawging when it comes to standing up against impropriety.  Granted, my critiques don’t involve the word “witch”, or any similar word with a different consonant.  Not because I’m afraid to do so, but because it’s uninformative and I prefer to keep the language on this blawg fairly clean. 

I don’t see my fellow criminal defense blawgers, like Bennett,  Gideon or Jon Katz, quivering in fear of a grievance either.  But what of the younger crowd, like Shawn, who aspires to the bench someday?  Would he take a chance of offending the local power structure and lose any chance of being called Young Judge Shawn?  Should he be forced to make that call?

I have no intention of changing my ways, and I would rather stop blawging than be afraid of controversy.  Of course, I’m not under threat of losing my license.  Yet.