SC94433 The Florida Bar v. Michael Dean Ray

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State: Florida

Court: Supreme Court

Docket No: sc94433

Case Date: 08/16/2001

Plaintiff: SC94433 The Florida Bar

Defendant: Michael Dean Ray

Preview:Supreme Court of Florida
No. SC94433
THE FLORIDA BAR,
Complainant,
vs.
MICHAEL DEAN RAY,
Respondent.
[August 16, 2001]
PER CURIAM.
Michael Dean Ray has petitioned for review of a referee’s report
recommending that he be publicly reprimanded for making certain statements
regarding an administrative law judge in the United States Executive Office for
Immigration Review.   We have jurisdiction. See art. V, § 15, Fla. Const.   Upon due
consideration of the issues and defenses raised by Ray, we approve the referee’s
report in full.
FACTS

Ray frequently appeared before a certain immigration court judge in Miami.
From February 1996 through August 1997, Ray wrote three letters to the Chief
Immigration Judge in Virginia.   In these letters, Ray made several statements which
questioned the veracity and integrity of the immigration judge, as well as his fairness
at a hearing for one of Ray’s clients.1   Based on some of the statements made in
these letters, the Bar filed a complaint of minor misconduct against Ray, alleging
that he had violated Rule of Professional Conduct                                            4-8.2(a) (“A lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or integrity of a judge.”).   A referee
was appointed and following a hearing on disputed factual and legal issues, the
referee found that certain statements in the letters were false, and that Ray had made
the statements with reckless disregard as to their truth or falsity:
The letters contained accusations which are utterly
false and they were made in my way of thinking at a
minimum - at a minimum - with reckless disregard for the
truth.
Indeed, if there is one word that characterizes these
letters, it is reckless.
. . . I have read that transcript and I have listened to the
tape and there was nothing - nothing - that transpired in that
hearing that would justify such outrageously false accusations.
And I am utterly appalled that this kind of language would be
used against anybody on evidence that barely qualifies as
1.   We decline to reproduce the statements here.
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sketchy.
In light of these findings, the referee recommended that Ray be found guilty of
violating Rule of Professional Conduct 4-8.2(a), and that Ray be publicly
reprimanded.   Ray now petitions for review.
ANALYSIS
Ray and the amici curiae2 in this case raise several arguments as to why Ray
is not guilty of violating rule 4-8.2(a),3 all of which can be distilled down to Ray’s
contention that his statements were protected speech under the First Amendment
and therefore this Court cannot sanction him for these statements.   For the reasons
expressed, we hold that the statements in Ray’s letters were not protected speech
2. The American Immigration Lawyers Association and the American
Immigration Lawyers Association, South Florida Chapter, filed amicus briefs on
Ray’s behalf.
3. Ray also raises two additional points which merit only a brief discussion.
Ray argues that the referee improperly denied his motion for summary judgment;
however, the Bar proffered an affidavit in opposition which demonstrated issues of
material fact, and we therefore find no error in the referee’s denial of Ray’s
summary judgment motion. See generally Smith v. Harr, 571 So. 2d 575, 577 (Fla.
5th DCA 1990) (affidavit in opposition to summary judgment motion “need only
raise a material issue of fact to survive the motion,” and “[a]ll inferences, doubts,
and conclusions must be construed in favor of the party opposing summary
judgment”).   Ray also argues that the burden of proof was improperly shifted to
him to substantiate his statements.   However, there is no debate that the statements
at issue concerned “the qualifications or integrity of a judge,” R. Regulating Fla.
Bar 4-8.2(a), and we see no error in the burden then shifting to Ray to provide a
factual basis in support of the statements.
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under the First Amendment for purposes of this case because Ray did not have an
objectively reasonable basis in fact for making the statements.
Ray contends that the statements in his letters were his opinion and that he
had a subjectively reasonable basis in fact for making the statements.   Subsumed in
this argument is Ray’s contention that the standard for defamation cases
announced in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies in
attorney disciplinary proceedings in Florida.   Although the language of rule 4-8.2(a)
closely tracks the subjective “actual malice” standard of New York Times,
following a review of the significant differences between the interests served by
defamation law and those served by ethical rules governing attorney conduct, we
conclude that a purely subjective New York Times standard is inappropriate in
attorney disciplinary actions.
The purpose of a defamation action is to remedy what is ultimately a private
wrong by compensating an individual whose reputation has been damaged by
another’s defamatory statements.   However, ethical rules that prohibit attorneys
from making statements impugning the integrity of judges are not to protect judges
from unpleasant or unsavory criticism.   Rather, such rules are designed to preserve
public confidence in the fairness and impartiality of our system of justice.   See
Kentucky Bar Ass'n v. Waller, 929 S.W.2d 181, 183 (Ky. 1996) (disrespectful
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language directed at judge is not sanctioned because “the judge is of such delicate
sensibilities as to be unable to withstand the comment, but rather that such language
promotes disrespect for the law and for the judicial system”), cert. denied, 519
U.S. 1111 (1997).   Because members of the Bar are viewed by the public as having
unique insights into the judicial system, the state’s compelling interest in preserving
public confidence in the judiciary supports applying a different standard than that
applicable in defamation cases.   For this reason, we, like many other courts,
conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard
to be applied is whether the attorney had an objectively reasonable factual basis for
making the statements. See United States Dist. Court v. Sandlin, 12 F.3d 861, 864,
n.13 (9th Cir. 1993) (rejecting purely subjective defamation standard and applying
objective standard, requiring court to determine whether the attorney had a
reasonable factual basis for making the statements); In re Holtzman, 577 N.E.2d 30
(N.Y.) (declining to adopt subjective New York Times standard in attorney
disciplinary proceeding regarding statements critical of judiciary, as doing so
“would immunize all accusations, however reckless or irresponsible, from censure
as long as the attorney uttering them did not actually entertain serious doubts as to
their truth”) cert. denied, 502 U.S. 1009 (1991); In re Graham, 453 N.W.2d 313,
322 (Minn.) (standard in disciplinary proceedings involving criticism of judiciary
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“must be an objective one dependent on what the reasonable attorney, considered
in light of all his professional functions, would do in the same or similar
circumstances”), cert. denied, 498 U.S. 820 (1990).
The referee in the instant case heard evidence from both the Bar and Ray
regarding whether Ray had a reasonable basis in fact to make the statements he
made in his letters and determined that Ray did not.   Ray’s statements that
questioned the judge’s veracity were found by the referee to be based on
statements that the judge never made, and the referee concluded that it was
impossible to “call someone a liar for a statement they never made.”   As to Ray’s
allegations of the judge’s unfairness at a hearing for one of Ray’s clients, the
referee, after reviewing a tape recording and a transcript from the hearing, found
that there was “nothing that transpired in that hearing that would justify such
outrageously false accusations,” and that the evidence Ray relied upon in making
the statement “barely even qualifies as sketchy.”   The referee concluded that Ray’s
statements were made “with a reckless disregard for the truth.”
Although Ray urges this Court to reweigh the evidence presented to the
referee and determine that his statements are opinions which had a reasonable basis
in fact, we have reviewed the entirety of the record, and conclude that the referee’s
findings in this regard are supported by competent substantial evidence. See
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Florida Bar   v. Herzog, 521 So. 2d 1118, 1119-1120 (Fla. 1988) (“Although there
was conflicting testimony concerning each of the disputed issues, ‘the referee, as
our fact finder, properly resolves conflicts in the evidence.’ . . .   Findings of fact
will be upheld unless they are without support in the record or clearly erroneous.”).
We therefore approve the referee’s findings that Ray made the statements in his
letters with reckless disregard as to their truth or falsity. See Florida Bar v. Clark,
528 So. 2d 369, 372 (Fla. 1988) (lawyer sanctioned under former Disciplinary Rule
8-102(B) “not for exercising his right to criticize the judiciary but for making false
and unsubstantiated charges against the judiciary”).                                      Ray and the amici also
contend that Ray’s letters to the Chief Immigration Judge were an accepted manner
in which to seek redress when an attorney is having difficulties with an immigration
judge.   Amici also express concern that this method of expressing criticism of the
judiciary will be severely limited if the referee’s recommendations here are
approved.   We disagree.   Our resolution of this case does not limit an attorney’s
legitimate criticism of judicial officers; we simply hold that an attorney must follow
the Rules of Professional Conduct when so doing.   Although attorneys play an
important role in exposing valid problems within the judicial system, statements
impugning the integrity of a judge, when made with reckless disregard as to their
truth or falsity, erode public confidence in the judicial system without assisting to
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publicize problems that legitimately      deserve attention.   See State ex rel. Oklahoma
Bar Ass’n v. Porter, 766 P.2d 958, 969 (Okla. 1988) (“Members of the Bar
possess, and are perceived by the public as possessing, special knowledge of the
workings of the judicial branch of government.   Critical remarks from the Bar thus
have more impact on the judgment of the citizen than similar remarks by a layman
would be calculated to have.”).
In light of the above, we approve the referee’s recommendation as to guilt,
and conclude that the referee’s recommendation of a public reprimand has a
reasonable basis in existing caselaw.   See Florida Bar v. Graham, 679 So. 2d 1181
(Fla. 1996); Florida Bar v. Flynn, 512 So. 2d 180 (Fla. 1987) (decided under
former Disciplinary Rule 8-102(B)).   We therefore approve the referee’s
recommended discipline.
CONCLUSION
Michael Dean Ray is hereby publicly reprimanded, and his reprimand will be
accomplished by publication of this opinion in the Southern Reporter.   Judgment is
entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399,
for recovery of costs from Michael Dean Ray in the amount of $2,303.86, for
which sum let execution issue.
It is so ordered.
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WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and
QUINCE, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding - The Florida Bar
John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division
Director, Tallahassee, Florida; and Randi Klayman Lazarus, Bar Counsel, Miami,
Florida,
for Complainant
Neil D. Kolner, Miami, Florida,
for Respondent
Tammy Fox-Isicoff, Committee Representative, Miami, Florida,
for American Immigration Lawyer’s Association, South Florida Chapter,
Amicus Curiae
Jonathan P. Rose, Miami, Florida,
for American Immigration Lawyers Association, Amicus Curiae
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