Judge to newspaper: Don't publish any article in which a lawyer 'is accused of dishonesty, fraud or deceit' in connection with his discipline by the state supreme court

|The Volokh Conspiracy |

Here's the text of an order issued by Louisiana state court Judge Curtis Sigur last Tuesday, in Groner v. Wick Communications Co.:

THE STATE OF LOUISIANA TO:
WILL CHAPMAN, PUBLISHER **PERSONALLY**
THE DAILY IBERIAN

YOU ARE HEREBY COMMANDED, enjoined, and restrained, in the name of the State of Louisiana and of the Civil District Court for the Parish of Iberia, in accordance with a temporary restraining order, this day issued in above entitled numbered cause from;
RESTRAINING WICK COMMUNICAT[IONS] COMPANY D/B/A THE DAILY IBERIAN AND WWW.IBERIANET.COM FROM PUBLISHING OR POSTING ON ITS WEBSITE ANY ARTICLE OR STORY IN WHICH PLAINTIFF DAVID W. GRONER IS ACCUSED OF DISHONESTY, FRAUD OR DECEIT IN CONNECTION WITH A LOUISIANA SUPREME COURT DECISION OR SIMILAR MATTER.

This all apparently stemmed from a reader comment on a Daily Iberian article that said,

I read the paper where David Groner is representing Deputy Sanders Butler in the sexual harassment. The only thing you need to know is that Butler helped Groner in his failed bid for State Senator against Fred Mills and Simone Champagne. That's when the truth came out about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.

The comment linked to a 2008 Louisiana Supreme Court decision imposing discipline on Mr. Groner:

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David W. Groner, Louisiana Bar Roll number 6349, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

I corresponded with Mr. Groner, and he sent me a copy of the joint memorandum supporting the agreed-on discipline, which says, in relevant part:

Rule 8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. By issuing payment to the [clients] with the notation "Full and Final Settlement" and obtaining a Release Agreement containing a release for all claims against [Groner], the actions of [Groner] suggest an attempt to settle the [clients'] malpractice claims, without their being fully advised as to the nature of the agreement and the potential ramifications associated with their executing the agreement. At a minimum, there was a misrepresentation as to the true nature of the January 18, 2007 transaction between the [clients], Ms. Defelice [Groner's associate] and David Groner, PLC.

You can decide for yourself whether the comment on the New Iberian site was fair, based on the disciplinary proceeding (read the whole joint memorandum, which is just four pages long, for more context). But it's clear that the order barring a newspaper from publishing anything in which Mr. Groner was "accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision" was unconstitutionally overbroad. That's so given the facts of this case. And it's so, even setting aside these facts, under the general principle that alleged defamation can't be enjoined at least until a full trial on the merits in which it's proved that a particular statement was false and defamatory (and maybe not even then).

In any event, the judge's order led to a good deal of public commentary, both from the Daily Iberian and from other sources, such as Ken White (Popehat); and the Daily Iberian fought the order in court (and I suspect would have fought in higher courts if necessary). And yesterday Mr. Groner dismissed the case, which means the order has now been vacated. Here is what he wrote to me over the weekend, in response to an e-mail from me asking for his side of the story:

The case will be dismissed Monday am. So by the time you write about it the case will be over and the TRO lifted, by my own choice.

It has been blown way out of proportion, which I admit is my own fault. I have never been found guilty of fraud, dishonesty, or deceit so I asked them not to publish anonymous posting to that effect. The end result is classic Streisand effect, I made it worse by trying to correct it. I am fishing at a camp in the marsh and have no access to backup or I would send you the stipulation that imposed a sanction against me for a technical violation considered misrepresentation. [Shortly afterwards, Mr. Groner did send me the stipulation, which I quote and link to above. -EV] Unfortunately for me the rule is to sanction actions of dishonesty, fraud, deceit or misrepresentation so the haters always pick up on the fraud, dishonesty and deceit and ignore the stipulation that led to the order which outlined a case for misrepresentation. For many that is splitting hairs, but for me it meant a lot. I forgot that because I am a lawyer it is open season and there are many that would love nothing more than to see me crash and burn.

I have now realized that I cannot control what is said on the internet and will do my best to return to anonymity.

I'm glad that the order has now been dissolved, and that Barbra Streisand continues to be doing her job. (To be sure, there is a bad version of the Streisand effect, in which even quite legitimate libel lawsuits are deterred by the worry that the publicity will only amplify the original false accusation. But here, given the clear unconstitutionality of the order, it seems to me that the Streisand effect has helped do good.)

UPDATE: Embarrassing error—the first line of the post originally said the judge's name was Michael Thibodeaux, but that was the clerk of court. The judge himself was Curtis Sigur, and I've updated the post accordingly. My apologies to Mr. Thibodeaux, who was just doing his job.