So much for the idea that the legal profession cares about integrity. While there are no doubt many upstanding attorneys, state bar associations seem vastly more concerned about trying protect the industry’s meal ticket than policing questionable conduct. It’s well known in the profession that to the extent lawyers are ever sanctioned, it’s almost without exception small firm operators. The big boys pay a lot in dues and often have partners in their firms that hold offices in the state bar organization.
One damning illustration: even though Florida has been a virtual cesspool of legal malfeasance, with its biggest foreclosure mill having shuttered its doors and impermissibly not passed open cases on to other lawyers and all of the other big players on the ropes, not a single lawyer has been sanctioned. Yet two lawyers in the state were threatened because they’ve dared to say a candid word or two about the mortgage mess. The bar association’s excuse is investigations take time, but the old state attorney general has been investigating these firms since last August. The state bar’s speed in efforts to silence members who are candid versus the leisurely pace in taking action on rampant abuses smacks of cronyism.
We’ve written about previous efforts to silence one of the two lawyers mentioned in this article, Matthew Weidner:
But what is telling are the desperate-looking but nevertheless potentially effective measures being deployed to hamstring the opposition. The vanguard of this effort are foreclosure defense attorneys, many of whom are solo or small firm operators, with not hugely lucrative practices or doing pro bono work (you don’t make a lot of money defending people who have no money).
Suing someone like that, even with a suit that seems spurious, throws a wrench in their operation. It takes time to deal with litigation, and often money, plus the stress is also a considerable distraction. And of course, the hope is no doubt that this sort of risk will also deter other lawyers and critics.
The first example is a lawsuit filed by National Title against Matthew Weidner, a Florida attorney who blogs about foreclosure fraud. The suit charges him with slander and libel.
As most readers no doubt know, in the US, slander and libel are false and malicious statements that damage the reputation of the subject. Thus the most effective defense in a slander or libel case is to establish that the remarks made were accurate (note that remarks that are narrowly accurate but misleading can be deemed to be slanderous).
The cause celebre is that Weidner included a four-part YouTube video of a deposition of Crystal Moore, a robo signer at National Title, and also provided some commentary about the video in his post.
Note that Weidner had NOT posted the video on YouTube, and this deposition was not one taken as part of a suit he was involved in. A different lawyer, Christopher Forrest, had put videos of three National Title employee depositions he had taken on YouTube. National Title secured an injunction on Wednesday ordering Forrest to remove the videos, but the Crystal Moore videos still seem to be up, and Forrest said he had removed his videos but others reposted them. The ACLU filed an emergency appeal on Thursday, calling the injunction a “gag order”…
Note that this effort to take down the videos comes as part of a broader battle in Florida over the transparency of court proceedings. Some Florida judges had taken to barring members of the public from watching foreclosure court proceedings, contrary to Florida law, which led the ACLU, some First Amendment groups, and several media outlets to write to the Florida chief justice and one of its circuit court judges. The chief justice, Charles Canaday, responded quickly and ordered judges to open their hearings to the public.
More on the propensity of the Florida bar to try to stop public discussion of dubious legal conduct than address the conduct itself from Law.com (hat tip reader Doug Smith):
No attorneys are facing disciplinary charges for their work in foreclosure cases despite a firestorm of complaints about purported fraudulent court filings on behalf of lenders.
But two foreclosure defense attorneys have been actively investigated for publicly criticizing the gridlocked foreclosure process.
The Bar investigated Jacksonville attorney Chip Parker for telling CNN, “Foreclosure courts throughout the state of Florida have adopted a system of ramming foreclosure cases through the final judgments and sale — with very little regard to the rule of law.” He also said, “What I am seeing now is an attack upon the citizens of the state of Florida by retired judges.”
The Bar also is investigating Tampa lawyer Matthew Weidner for “exercising free speech in the courtroom” in violation of a Pinellas County ordinance. Weidner, a prominent foreclosure defense lawyer, runs a blog critical of the state’s foreclosure process and is frequently quoted in national publications.
The Florida Bar has closed 46 investigations with no charges filed against foreclosure plaintiff attorneys out of 272 complaints, according to statistics from The Bar. The Bar also has closed without charges 29 investigations into foreclosure defense attorneys out of 58 complaints filed since last October….
Parker learned he was under scrutiny in a letter from Bar counsel Shanell Schuyler last Dec. 3. The letter, obtained by the Review, includes a link to Parker’s CNN interview and advises him to explain his on-camera statements in writing by Dec. 20 in light of The Bar’s Rule of Professional Conduct 4-8.2 prohibiting lawyers from making false or reckless comments about court personnel.
“I was shocked,” Parker said. “I said, ‘This is a joke, right?’ I have a First Amendment right to free speech. I’ve said a lot worse and been more pointed in my speech in the past. CNN actually toned down my comments.”
Parker responded to The Bar by quoting Oliver Wendell Holmes Jr., the late associate justice of the U.S. Supreme Court, saying his criticism was “consistent with the great traditions of American lawyers.”
Parker said he hasn’t been told who filed the complaint due to confidentiality rules, but he heard it was an offended judge. He reached out to constitutional lawyer Talbot “Sandy” D’Alemberte, a former president of the American Bar Association and Florida State University, whom he had met at a recent dinner honoring Parker. D’Alemberte intervened at The Bar, and the case was dropped Jan. 13, 2011.
D’Alemberte also is helping Weidner at the request of the Florida Press Association and the First Amendment Foundation, which were contacted by Weidner. He declined comment on his pending investigation. But D’Alemberte said he believes the case also will be dropped.
“I am pleased that The Bar is not going forward with these complaints,” he said. “My sense from talking to The Bar people is they feel there’s a duty to investigate whenever there’s a complaint. It seems like one of the complainants may have been a judge. We saw possible implications for free speech purposes.”
If you think the fact that these investigations are being dropped means the Bar was acting properly, think again. There is no way they would have gone anywhere; the ACLU would have been all over any real action like a cheap suit and the adverse publicity would have been very damaging. This was harassment, pure and simple, both to get Parker and Weidner to back down and to warn other members of the Florida bar that they’d better observe the industry code of omerta.