Attorney Sanctioned Over Emails to Judge and Others; First Amendment Defense Fails
An Illinois action before the Attorney Registration and Disciplinary Commission (ARDC) pits an attorney’s First Amendment rights against allowable speech in emails commenting on a judge and her actions in a pending case.
In re Matter of Nejla K. Lane, ARDC No. 6290003 (filed Nov. 4, 2021) (Commission No. 2019PR00074), dealt with a lawyer alleged to have made “false or reckless statements impugning the judge’s integrity” via email. Id. at 1.
Respondent Lane represented Barry Epstein in a divorce proceeding in state court who then alleged Epstein’s wife Paula and her lawyer violated federal wiretapping laws by accessing his private emails without his authorization. Magistrate Judge Sheila Finnegan of the U.S. District Court of the Northern District of Illinois supervised discovery in the federal proceeding and maintained an email account known as the “proposed order account” that allowed litigants to electronically submit proposed orders and to address certain scheduling issues.
During litigation, attorney Lane, licensed to practice in Illinois, Texas, and Michigan, wrote several emails to the judge, her clerk and other parties that contained false and reckless statements attacking the judge’s integrity and qualifications, which were intended to disrupt the court proceedings, and which prejudiced the administration of justice in violation of the Illinois Rules of Professional Conduct, specifically Rules 3.5(d), 8.2(a) and 8.4(d). Id. at 1. These inappropriate emails started on April 18, 2017, after Judge Finnegan denied Lane’s emergency motion for an extension of time to take the deposition of the opposing counsel, Jay Frank, in the state court divorce proceedings.
It is important to repeat some of the email content to understand the severity of the language. The attorney’s email response to the judge’s order was:
“Today in court, no matter what I said to you, you had already made up your mind, and even questioned my sincerity with regard to my preparation for upcoming trial …
“…since the beginning, you never seem to doubt anything he says, as you appear to doubt me. Still, I stated to you in open court that ‘I don’t want to be hated’ for doing my job, but it sure seems that way, as I never got a break. …
“…It’s not fair that my client (and I) is [sic] being treated badly for suing his wife/ex wife, and everyone is protecting Paula – why? Since when does ‘two’ wrongs make a ‘right’? [sic]. How am I to prove my case if I am not given a fair chance to do my work, properly.” Id. at 4.
Judge Finnegan instructed Respondent Lane the next day that “the parties were not to use the proposed order to argue the merits of the motion, share their feelings about a ruling, or talk generally about the case with her. She told Respondent her email was improper and directed her not to send any such emails in the future.” Id. at 4. Respondent Lane acknowledged she understood the judge’s instructions.
Nonetheless, on June 23, 2017, Respondent Lane sent a second email to various parties commenting on the proposed order that stated in part:
“I’m very upset, I do not agree with Judge Finnegan’s order and I will depose the former co-defendant, Jay Frank, despite the fact that this court is protecting him and his co-conspirer! Scott Schaefers [defense counsel in federal case] had no standing to challenge my subpoena to depose Jay Frank! I’m entitled to depose him! And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal to escape punishment by forcing to shorten all deadlines!!!
“This Judge is violating my client’s rights first by the truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed!
“I’m outraged by the miscarriage of justice and judges are in this to delay and deny justice for my client!
“I’m sickened by this Order!!!” Id. at 4-5.
Respondent Lane sent yet another email on June 26, 2017, that commented on the Judge’s Order and stated in part:
“Plaintiff’s motion is not late just because this court decided not to extend discovery deadlines, to protect the Defendant! I have asked this court numerous times for an extension of all cutoff deadlines, without avail. Take this into account when drafting your flawed order. …
“For anyone to insult me in this degree calls question [sic] this court’s sincerity and veracity….
“The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this ‘fraudulent’ order by this court? …” Id. at 5.
The next day, the Court entered an order admonishing Respondent for violating her directives and making highly inappropriate statements and asked her to immediately stop all email communication with her and her staff.
After the underlying dispute ended, Judge Finnegan brought a complaint about Respondent’s conduct to the Executive Committee of the United States District Court for the Northern District of Illinois. Upon review, the Executive Committee decided to suspend Respondent from the federal general bar for six months and from the trial bar for 12 months. The Executive Committee found that Respondent used “unprofessional, inappropriate, and threatening language” in her emails. Id. at 6. To be reinstated, the Executive Committee also found that Respondent was required to obtain professional anger management assistance. Subsequently, Respondent was reinstated to the general bar and the trial bar.
The ARDC administrator subsequently filed a complaint against the attorney Respondent stating that the Executive Committee’s decision was separate from her conduct under state rules, and she still was subject to ARDC proceedings. In a 17-page Report and Recommendation, the Hearing Board reported that Respondent’s statements “not only expressly questioned Judge Finnegan’s ‘sincerity and veracity’ but accused her of protecting and assisting criminal conduct, participating in improper ex parte communications with attorney Schaefers, and entering a ‘fraudulent’ order. Id. at 7. These statements unquestionably crossed the line from expressing disagreement with rulings to making unsubstantiated accusations that maligned Judge Finnegan’s honesty.” Id. The Hearing Board found no reasonable basis for believing that any of Respondent’s statements were true.
A nine-month period of suspension with the suspension stayed after six months to be followed by a six-month period of probation was recommended by the Hearing Board in November 2021.
The ARDC Review Board then heard the matter, reaffirming the Hearing Board’s decision. In the Matter of Nejla K. Lane, Commission No. 2019PR00074, decided July 2022, at 26. The Review Board also took issue with Respondent’s only expressing remorse “to some extent,” but “Respondent has not fully accepted responsibility, nor wholly recognized the wrongfulness of her misconduct.” Id. at 21. The Review Board pointed out Lane’s half-hearted apologies including during the ARDC proceedings “calling one of the Administrator’s questions ‘so stupid’ and accused others of criminal conduct in attempting to justify her own wrongful behavior.” Id. at 12.
Instead, Respondent presented numerous reasons for her conduct, portraying herself as the victim, including stress, her client’s abusive behavior, a dispute with a former law partner, and English not being her native language. She also contended that the second and third emails were addressed to the judge’s clerk and, therefore, didn’t violate the court’s order.
As the Hearing Board noted here, “[A]ttorneys may express disagreement with a judge’s rulings but, as officers of the court, have a duty to protect the integrity of the courts and the legal profession.” In re Matter of Nejkla K. Lane, supra, at 7, citing In re Walker, 2014PR00132, M.R. 28453 (March 20, 2017) (Hearing Board at 21). “Subjective belief, suspicion, speculation, or conjecture does not constitute a reasonable belief.” Id. at 8. Consequently, Rule 8.2(a) prohibits an attorney from making a statement concerning the qualifications or integrity of a judge that she knows to be false or with reckless disregard as to its truth or falsity. Ill. R. Prof. Conduct 8.2(a).
It is difficult to discern sometimes when opinions rise to the level of lies. The First Amendment protects opinions, but it does not protect defamatory speech. Respondent disputed that she knowingly or recklessly made false statements, but the Hearing Board and Review Board found she had no objective, factual basis for her comments. In fact, they held that Respondent’s “misconduct was very serious” that rose to the level of “’unfounded attacks on the judiciary [that] have the potential to damage the reputation of the judge involved and to undermine confidence in the integrity of the entire judicial process.’” Id. at 20, quoting the Hearing Board at 11. This attorney voiced a subjective belief about misconduct, thereby crossing the line from appropriate criticism or disagreement to impugning the integrity or motivation of a judge without any justification or proof.
The issue also was decided de novo by the Review Board that “Respondent’s knowing and reckless falsehoods are not protected by the First Amendment.” It was raised whether making the statements in ex parte emails rather than in a pleading or court document made a difference, particularly when referring to a judge’s integrity and qualifications. The Review Board found that the fact that such statements were made in emails made no difference. “These statements unquestionably crossed the line from expressing disagreement with rulings to making unsubstantiated accusations that maligned Judge Finnegan’s honesty.” This was found to be a violation of Rule 8.2(a). In the Matter of Nejkla K. Lane, (Commission No. 6290003), supra, 2019PR00074, supra at 7.
The Hearing Board found that “The purpose of the disciplinary process is not to punish attorneys, but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach.” Id. at 10, citing In re Edmonds, 2014IL117696, ¶90.) The Hearing Board went on to say, “The Supreme Court has made clear that unfounded attacks on the judiciary have the potential to damage the reputation of the judge involved and to undermine confidence in the integrity of the entire judicial process.” Id. at 11. That really is the crux of this action.
The matter will go before the Illinois Supreme Court for final disposition. At this writing, it is not on the Court’s docket.