Florida Supreme Court Ignores Facts and Law in Suspending Attorney for Two Years for Speech Critical of Another Attorney

When Florida attorney Jeffery Norkin appeared in a case for a business defendant, he concluded his client was right, that the suit against his client should already have been dismissed.  A court-appointed forensic accountant, a former IRS and FBI forensic investigator as well as an attorney, had testified in court that the allegations in the complaint were false and that the defendant had not stolen money from the company the parties co-owned. 

Florida Attorney Jeffrey Norkin

Norkin wrote several emails and letters to long-time attorney Gary Brooks saying that Brooks had been dishonest in how he had handled the case and demanding that he dismiss it.  Brooks refused to do so. Norkin filed a counterclaim.  In five months time, the court granted Norkin’s motion for summary judgment dismissing Brooks’ complaint, and holding Brooks’ client liable on Norkin’s abuse of process counterclaim.  

 

Rather than settling, Brooks sought to gain leverage in the case by filing a bar grievance against Norkin based on the emails and letters criticizing him, most of which by then were 18 months old.  The Florida Bar, which typically dismisses grievances filed that involve pending litigation, instead decided to aggressively pursue Norkin for misconduct, which complaint again was initiated by Brooks.

 

Norkin eventually obtained a $318,000 jury verdict on the counterclaim. Brooks though continued to delay the case which proved financially devastating to Norkin’s client.  In some hearings leading up to the trial, two judges told Norkin he was yelling, but he was never sanctioned or even warned a sanction could be forthcoming.

The Florida Bar charged Norkin with violating Florida Disciplinary Rule 4-8.4(d) which "prohibits an attorney from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage or humiliate others lawyers on any basis."

The referee assigned to the case found that Norkin had violated that rule as well as others and recommended a 90 day suspension followed by a 180 day period of probation. The Florida Supreme Court also found Norkin had violated the rules, but imposed a two year suspension with other conditions and sanctions.  

 

The fact that Norkin might be obnoxious or too aggressive in his advocacy on behalf of his clients does not relieve the Florida Supreme Court of its duty to apply the disciplinary rules correctly. Further, simply because Norkin is an attorney does not mean he can be sanctioned for his speech.  As the United States Supreme Court said 1991 case Gentile v. Nevada the only time an attorney's speech can be more proscribed than a private citizen is when the attorney's speech is be interfering with the public administration of a pending case.  Some of what Norkin is accused of by the Bar arguably falls into that category, but most of it does not.  To the Florida Supreme Court though, that didn't matter.  The Florida justices were offended by Norkin's lawyering and any objective analysis went out the window.

 

An attorney with even an elementary understanding of how to interpret statutes and rules could see 

Florida Supreme Court

why, even without getting to the First Amendment issues, Rule 8.4 did not apply to Norkin's emails and correspondence to Brooks.  That rule applies to conduct that is "prejudicial to the administration of justice." While the rule lists some types of conduct that are included, i.e. "knowingly, or through callous indifference, disparag[ing] or humiliat[ing] other lawyers" that conduct still must be "prejudicial to the administration of justice."   It is not clear how Norkin's private correspondence with Brooks could have in any way prejudiced the administration of justice.

The Florida Supreme Court simply ignores that issue in its opinion.  Its lengthy opinion also ignores Norkin’s extensive submission of facts and evidence, discussed in his over 100 pages of briefs.  As I have learned all too well, when you're charged with a speech violation as an attorney, no amount of evidence will be ever be found sufficient to justify your speech.  I don't think an attorney anywhere has ever met that burden in the eyes of the disciplinary authorities.

 

The Norkin case also involves a Rule 8.2 matter.  In a dispute involving the two directors of a Florida company, trial judge Ronald Dresnick appointed David Tobin, a retired circuit judge, to serve as a provisional director in order to break the tie vote on any matter on which the two directors didn't agree.  Norkin originally agreed to the appointment, hoping that Tobin would help his client by ending the plaintiff's complained of conduct.  That didn't happen.  When Tobin submitted his substantial bill, in which he charged at over $400 an hour, Norkin strenuously objected.  Instead of submitting the fee dispute to an adversary proceeding, Tobin withdrew from the case and, according to Norkin, without notice, a pleading, or a hearing, obtained an ex parte judgment and proceeded to garnish money from Norkin's client.  In response, Norkin sent a letter to Tobin which stated that if Tobin did not return the funds, he would investigate the "cozy, conspiratorial nature of [his] relationship" with Brooks’ client, who had filed the dismissed complaint and was destroying the company.  

The referee found that Norkin's "correspondence to Tobin improperly threatened the filing of a legal action against Tobin personally and, without supporting facts, asserted that Tobin was involved in a conspiracy."  Further the referee "concluded that that Tobin did not have a cozy, conspiratorial relationship with Ferguson or his attorney. The referee found that there was no conspiracy and that Respondent had made the statement with reckless disregard for the truth."

 

In its opinion, the Florida Supreme Court failed to engage in even a modicum of analysis as to whether Rule 8.2 was applied correctly by the referee.  First, Tobin was not acting in a judicial capacity so it is not clear that Rule 8.2 even applied to the communication. Second, there is no indication that the correspondence went to anyone but Tobin.  As Rule 8.2 is supposed to be about protecting the public's perception of the judicial branch, it is not clear how Norkin's private letter to Tobin violated the rule.  The Florida Supreme Court simply ignored those critical issues as well as facts regarding what Tobin had done that sparked Norkin's reaction.

Norkin also had filed a motion that Judge Dresnick recuse himself from the case alleging in part:

At all times, Judge Dresnick's rulings and demeanor have been favorable to Ferguson, who has, in fraudulent and criminal manner, used this Court as an instrument of destruction. He has accomplished this exclusively through the conduct of the case by Judge Dresnick.

. . . [I]t seems apparent that Judge Dresnick has known and been well-acquainted with opposing counsel, Gary Brooks, Esq. They exchange personal information and are very friendly with each other. On the other hand, there have been no such pleasantries between Judge Dresnick and this attorney. Obviously, based on the foregoing, Judge Dresnick's treatment and demeanor toward undersigned has been quite opposite: hostile, impatient, and highly critical and disapproving. 

The hearing officer and the Florida Supreme Court concluded that this act also violated Rule 8.2.  Again, the court's opinion was devoid of analysis as to a critical issue - how can an attorney make the obligatory allegation of bias sufficient to warrant a judge recusing himself if that allegation of bias is going to subject that attorney to a disciplinary action?  Further, it is apparent that much of Norkin's opinion of Judge Dresnick was based on his observations of Dresnick during hearings.  How could the referee and the Florida Supreme Court justices simply conclude that Norkin's opinion of his observation of Dresnick's behavior in court was wrong and sanctionable when Judge Dresnick did not even testify at Norkin's hearing?  Then of course you have the issue of whether Rule 8.2 even applies to opinions, yet another issue that the Florida Supreme Court simply ignores.  According to the notes accompanying Model Rule 8.2, the rule was never intended to apply to statements of opinions.

In a footnote slapping themselves on the back for their opinion, the Florida justices declared: "[m]embers of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior."  Better yet, the Norkin opinion should be read by members of the Florida Bar, law professors, and indeed attorneys everywhere, as a glaring example of a court allowing its subjective displeasure with an attorney prevent it from engaging in an objective and unbiased analysis of the facts of a case, the applicable disciplinary rules and court decisions that protect an attorney's free speech rights under the First Amendment.