The nice folks at the Broward County Courthouse do not seem to be fond of lawyer Bill Gelin, as he doesn’t always say nice things about them.
Since 2006, attorney and courthouse muckraker William “Bill” Gelin has been shaking up the judiciary on his popular site, JAA Blog. Whether sounding off about potential corruption and racism in the courthouse ruling class, or even its work habits, the 46-year-old Oakland Park attorney hasn’t held back his opinions. But now it looks like his criticisms are boomeranging right back.
In the last few months, the attorney has been fielding heat from the Florida Bar. The statewide group has opened a complaint investigation into the blogger. But the organization won’t tell Gelin why the complaint has been filed or at whose behest.
There’s a bit of a due process problem here, if Gelin is to be able to defend himself, although investigating a complaint is different from prosecuting a complaint. It’s unclear whether the Florida Bar is still investigating in order to determine whether to take action, or taking action. If the former, then its non-disclosure isn’t a problem. If the latter, then it’s a big problem.
Is Gelin a muckraker or a whistleblower? Beats me. That’s a matter of perspective, and irrelevant for the purposes of this post.* By seeking admission to the bar, all lawyers knowingly and willingly accede to certain limits on our speech in order to comply with the rules of professional conduct. It’s one of the reasons we can’t call the judge an asshole in the well. We just need to live with that. Plus, there are other ways to say it, with all due respect.
But as good or bad as Bill Gelin may be, and without regard to the limits he assumed by his admission to the bar even when he writes on his blog, they do not extend to his commenters. The Florida Bar, however, fails to draw that distinction.
The dispute between Broward Clerk of Courts Brenda Forman and lawyer Bill Gelin is exploding into a First Amendment battle over what lawyers can say online and whether they should be able to leave anonymous, inflammatory comments without fear that their identities will be disclosed.
The Florida Bar last month ordered Gelin to reveal the identities of people who left dozens of anonymous comments on JAABlog, a website that describes the ins and outs of Broward’s legal community.
It’s one thing for the bar to go after Gelin, but another entirely to go after people who leave anon (or pseudonymous, for you pedants) comments. If the comments were unprotected speech in themselves, and the identities of their authors were sought based upon the individual comments violation of law, then there would be one First Amendment discussion. Unprotected speech, such as defamation, enjoys no protection.
The speech at issue here, however, isn’t alleged to defame Broward Clerk of Courts Brenda Forman.
The Bar complaint remains under investigation. “Just a cursory scroll through the comments on his blog clearly demonstrate that the comments are more often than not vulgar, racist and just plain mean-spirited,” Forman’s attorney wrote in one exchange with Florida Bar investigators.
Vulgar? Racist? Just plain mean-spirited? So what? None of these descriptions suggest speech that doesn’t enjoy full First Amendment protection, unpleasant for Forman as it may be. One would expect that no judge with even a modest grasp of the First Amendment would sign off on such a subpoena, or if issued by an attorney without prior approval, enforce it.
But this subpoena doesn’t come from a judge, but from the Florida Bar. While the story lacks sufficient detail to be certain, it would appear that the bar’s grievance counsel issued the order to Gelin to reveal the identities of these “plain mean” commenters, not to mention vulgar and racist. The exercise of administrative authority of lawyers gives the bar’s demand a certain legitimacy, at least as far as lawyers are concerned.
This puts Gelin in the awkward position, as a lawyer who has willingly subjected himself to the bar’s authority, to comply, as would appear to be his duty to the administrative authority that controls his ability to practice law and, presumably, his livelihood or take the bastards to court to stop them.
Gelin’s lawyer, John Howes, said he doesn’t think the Bar has the authority to file the subpoena. He said Forman’s complaint originally was about Gelin trying to take her photo against her will in courthouse hallways. Howes said that has nothing to do with unflattering comments left on JAABlog. “There might be a rule allowing them to subpoena certain records, but not this,” Howes said.
That the identities of commenters are irrelevant to Forman’s complaint is one important point, but even if they were entirely relevant, so what? In the absence of a sufficient allegation and showing that the content was unprotected speech, their right to anonymous expression under the First Amendment more than sufficiently precludes the bar’s effort to compel disclosure.
Of course, for Gelin to stop the subpoenas, one of two things can happen. He can just refuse to comply, putting the onus on the bar to do something about it. Because it’s the Florida Bar, they can impose punishment on Gelin for his failure to cooperate and comply, up to and including disbarment. But that won’t get them the identities, just their pound of flesh from Gelin. And it would shift the burden to Gelin to fight their actions.
The alternative is for Gelin to go to court to quash the subpoena, which means he would have to prevail upon a judge to agree with him. There’s a possibility that Gelin doesn’t have a lot of friends at the courthouse these days, but judges should rise above such pettiness and do law, even for someone they may not want to invite to dinner.
Either way, the Florida Bar’s ability to beat up Bill Gelin, or not, has nothing to do with any commenter at his blog, who enjoys an independent First Amendment right to express as vulgar a view as they like against Brenda Forman and, perhaps now, the Florida Bar itself. As for Gelin, he’s going to make a run for it.
Gelin announced on the blog earlier this month that he is running to become a future president of the Florida Bar.
If the Florida Bar really wants to punish Gelin, they should elect him.
*If you have a thought on this issue, keep it to yourself. This will not be turned into a referendum on Bill Gelin.
Uh oh.
Thanks, as I know you’ll fight tooth and nail when the inevitable subpoena shows up!
(BTW, this is just a cameo, as I’ve had one too many spinning plates in the air these last few months).
All the best!
Amazingly, I manage to write the posts, but you’re too busy to read them. If I didn’t write, I’d probably be in bed eating bon bons all day for lack of anything else to do.
I took you for more of the Peanut Butter Crunch than bon bon type.
I manage to read them. (Well… most of them). But rarely on the day they go up.
Reading them is not the big time killer. Replying to them (and doing battle with the CAPTCHA) is another matter, entirely.
Unfortunately, I don’t have that luxury, as almost every non-sleeping moment is accounted for. Maybe someday. Although, I can think of few things more unappealing than laying in bed, eating bon-bons.
Mind you, I find myself busier in so-called semi-retirement than at any time beforehand.
The only reason I have a few spare moments today is an abrupt, unanticipated, change in scheduling.
However, barring unforeseen circumstances, as long as you keep writing, I’ll keep reading.
All the best!
It’s always the captcha’s fault.
You still have the 100 bon -bons I sent you? I think they do have an expiration date.
They were truffles. Not bon bons. Truffles.
How dare you question authority? Don’t you know who runs this place?
Well, this place, sure.
According to the Florida Sun Sentinel, the Honorable Brenda, Clerk of the Court filed a harassment complaint against Gelin for failing to show the due deference to which she was entitled, thereby causing permanent mental trauma, fear for her life, etc. Gelin responded by passing out embossed invitations to the hearing. This caused her to drop the complaint. Unfortunately, the Florida Sun Sentinel told us we’d reached the limit of free articles, so we’ll have to rely on you to find out how this comes out. Hang in there, Gelin!
But embossed? What’s that supposed to mean? I completely get an “engraved” invitation, which is a beautiful touch, but embossed?
Emboss. Verb. To carve, mold, or stamp a design on a surface so that it stands out in relief.
Forgive my inanity, it’s not every day that you tee one up so perfectly. Have a great day, sir.
Must be a Florida thing.
He took it to the clerk’s office and had it certified and sealed.
Interesting. I’ve never been thru the process myself, but as I understand it (gotta throw out that sheet anchor in case Virginia Bar counsel reads this), if Bar counsel issues a subpoena in Virginia an attorney can have it reviewed by the district committee. The Virginia Bar used to have a reputation for issuing subpoenaes for an attorney’s trust account records no matter what the complaint was about. Kick an old lady in court? Show up at the Court of Appeals drunk? Let’s see that trust account. I knew a couple lawyers who fought that and the committee was not at all sympathetic to Bar counsel.
My favorite was when an attorney had opposing counsel file a complaint against her for having her secretary sign a document in her name (a bog standard, file it every other day document, but technically a violation because she didn’t review it before telling her paralegal over the phone to send it out – at least that was her story). Bar counsel filed a subpoena for trust account records. She filed a bar complaint on Bar counsel. Bar counsel got replaced by his boss, the subpoena went away, and the attorney got the typical slap on the wrist. Never heard what happened about the bar complaint on Bar counsel though.
The bar* wants the lawyers that anonymously post disparaging stuff about judges, which is covered by The Rule Most Often Violated. But they can’t identify the lawyers without Bill’s help. That presents a problem for the bar: it has subpoena power, but probably can’t issue the subpoena unless there is an investigation of a known member.
I stopped reading the blog a few years ago because it didn’t add much to what was known to lawyers or was previously reported in media. Broward had problems with judges drinkin’, druggin’ and naked for a few years. Bill filled a void by reporting how often judges actually worked (is it too much to ask that they show for 8:45 motion calendar by 10?). Nearly every comment is anonymous. The bar wants 40 identities. The only way that works, under any circumstances, is if the 40 are presumed to be members.
But there’s another problem. Not to get into the quality of Bill’s work, but it ain’t SJ or the former Herc, where thought by lawyers is required. The comments tend to be grade-schoolish, and include many by unhappy litigants and lunatics. It would be really hard to say any post was by a lawyer, let alone a member. Even if the bar has a legitimate subpoena net in this instance, its cast is far too broad.
* In this instance, capitalization is unwarranted.
If they’re anon, they don’t know they’re lawyers. And unless they satisfy the criterion for compelling disclosure (an extant cause of action), they never will. They can’t use the claim that they’re entitled to identities because they’re attorneys to ascertain whether they’re attorneys. Even for FL, that’s a bit too circular.
As for the value of Gelin’s blog, a demur.
Ms Froman seems remarkably thin skinned for a public official. Perhaps she should think back to her childhood days and recite “sticks and stones can break my bones, but names can never hurt me”. Toss in some ego suppression, and she would be much happier. That would be far more effective than chasing after pseudonymous posters on an internet site while making a fool of herself.
It’s not her fault. It’s a disease that’s grown to epidemic proportions.
Seems remarkably average for a public official.
I’m guessing the Florida Barney Fife types have reasoned their way through this, figuring some of these people on his site may be Florida-regulated lawyers, making comments that would potentially subject them to discipline. So, if they can prove that Gelin knew those facts, but he didn’t turn his colleagues in (per the Florida version of the rat-fink rule), then they get him for that. Whether they manage to punch his ticket or not, it is all but certain to chill commenting on his website to the point that tumbleweeds will be blowing through.
Gelin, like me, is fair game. His commenters, like you, no matter what the speculation of the Bar’s Barney, are not.
I have seen various claims that the Florida bar regulators are despotic and out-of-control, but most of those were posted by obviously troubled colleagues upset over having been disciplined. So I don’t know what to believe about what really goes on there. If the bar regulators are essentially unchecked by their state courts (which might be more likely where they target someone who is annoying judges), I can see how that would be likely to lead to abuses.
How do you feel about lawyers and racoons?
Dunked in the Gulf and cooked right, they taste much like grouper.