The Volokh Conspiracy
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Lawyers' Public Allegations of Racial Prejudice by Trial Judge Lead to 30-Day Suspension
The Florida Supreme Court concludes that, among other things, the allegations were knowingly or recklessly false.
From the Florida Supreme Court's opinion yesterday in Florida Bar v. Girley:
Jerry is the managing partner of the Girley Law Firm, and Brooke, who is Jerry's daughter, holds an "of counsel" position at the firm. In 2021, Jerry represented Baiywo Rop in a civil lawsuit against Adventist Health System before the Ninth Judicial Circuit. Rop, a native of Kenya, alleged that Adventist Health wrongfully terminated him from its residency program due to discrimination based on race, national origin, and disability. The complaint also alleged retaliation. After Jerry presented Rop's case in chief, Adventist Health moved for directed verdict on all claims. The presiding judge, Judge Kevin Weiss, granted Adventist Health's motion on Rop's claims of discrimination based on national origin and disability. However, he reserved ruling on Rop's claims of discrimination based on race and retaliation.
At the conclusion of the trial, the jury returned a verdict in favor of Rop, finding that he proved that his race was a motivating factor in the decision to terminate him, and awarded him compensatory damages in the amount of $2.75 million. After the jury's verdict, Judge Weiss ruled on Adventist Health's earlier motion for directed verdict based on the racial discrimination claim and entered a directed verdict in favor of Adventist Health, finding that Rop failed to prove a prima facie case of unlawful discrimination based on race under the Florida Civil Rights Act. {Judge Weiss's order cited a decision in which this Court recognized the practice of reserving ruling on motions for directed verdict until after the jury returns a verdict … in order to avoid the need for a costly new trial in case of a reversal on appeal ….}
After the trial court entered its Order on Directed Verdicts, Brooke reposted on her social media the following posts by her brother Brian Girley, who handles social media for the firm: "Today in Orlando Florida a white Judge stole justice from a black doctor. After being awarded by a jury $2.75 million for discrimination a judge reversed their verdict. We need help getting this out," and "The Girley Law Firm won a case against @AdventHealth where a jury found that they had discriminated against a black doctor and awarded him $2.75 million. Today a white judge stole justice from him. This needs attention!" Brooke posted a picture of Judge Weiss with the message that "a white judge stole justice from a black doctor."
In the days following the trial, Brooke made several comments on social media regarding Judge Weiss and the Rop case, such as "[t]his is an injustice. One judge shouldn't be able to overturn a jury verdict," and "the judge did this own [sic] his on [sic] too. No one filed any post-trial motions." Brooke further stated: "I don't believe he had the authority to make this ruling and we need to hold him accountable." In other posts, Brooke commented, "[s]ounds like he needs to be investigated. #RemoveJudgeWeiss," and "[t]he court system is a sham!"
She also stated in one post that "[t]he Dres [sic] Scott rule still applies in 2021: 'A black man has no rights which a white man is bound to respect.' Y'all, we can't let this stand. #RemoveJudgeWeiss." In another post, Brooke posted a message claiming that "[e]ven when we win, it only takes one white judge to reverse our victory…. This is an injustice and cannot stand." Brooke also posted about organizing a protest rally to "bring attention to fact [sic] that judges are allowed to overturned [sic] jury verdicts and erode our civil rights."
Also, days after the trial court entered its Order on Directed Verdicts, Jerry participated in a couple of online interviews where he made several statements regarding the Rop case, Judge Weiss, and the judiciary. Jerry suggested that judges actively make decisions to reduce or preclude monetary awards for black litigants in discrimination cases and that Judge Weiss was racially biased and exceeded his authority by unlawfully reversing the $2.75 million verdict awarded to Rop, a black litigant. Among other things, Jerry stated that "we have had judges cut the money, find ways to ensure that our clients at the end of the day did not get paid. Now that's what happened last Friday," and "[t]he $2.75 million that was taken by the stroke of a judge's pen, that was a theft," "a theft to the community." Regarding the timing of Judge Weiss's ruling, Jerry stated that Judge Weiss "made a determination six days or five days after the trial that there was not enough evidence presented to cause Dr. Rop to prevail," and while there is a technical mechanism that permits a judge to do so, "this was not one of those circumstances."
Jerry also suggested that the Fifth District Court of Appeal is biased against black litigants, saying:
There are people who have a certain point of view at the appellate court, the Fifth DCA, which sits in Daytona. There's not a single black person there…. Okay? So in effect, what we're saying is, to one group of white people, hold this particular person accountable for what he did to these black people…. But at the end of the day, this is something that God will have to address, because it's not in the hearts of those in … power, and that includes the appellate court, I would say, to right the wrongs that have been committed against us, because it––it makes financial sense to them to keep us in a place where we are beholden to them.
Jerry explained that the courts treat civil rights cases as though they are a waste of time, as "stepchildren," and stated, "[A] $2.75 million verdict, they don't want that out there cause––now everybody that is being discriminated against is gonna step forward and file a claim, and the courts don't want to hear it."
After Brooke's social media posts and Jerry's public statements, Judge Weiss was harassed and received death threats. Judge Weiss had to secure additional security for his protection at the courthouse and at home.
The court concluded that both lawyers violated Florida Bar rule 4-8.2(a), under which "a lawyer must not make a statement that the lawyer knows to be false or with reckless disregard of its truth or falsity concerning the qualifications or integrity of a judge":
Respondents made [their] statements despite Judge Weiss making it clear in his order that he was acting in accordance with legal precedent when he deferred ruling on portions of the motion for directed verdict until after the jury rendered its verdict. Respondents' statements were made with reckless disregard of their truth or falsity, with no objectively reasonable factual basis, and impugned the qualifications and integrity of Judge Weiss and the judges of the Fifth District Court of Appeal….
The type of restriction imposed on lawyer speech by rule 4-8.2(a) is not new. See Bradley v. Fishero (1871) ("[T]he obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts."); In re Shimek (Fla. 1973) ("It would be contrary to every democratic theorem to hold that a judge or a court is beyond bona fide comments and criticisms which do not exceed the bounds of decency and truth or which are not aimed at the destruction of public confidence in the judicial system as such. However, when the likely impairment of the administration of justice is the direct product of false and scandalous accusations then the rule is otherwise.").
Moreover, we have previously explained that rule 4-8.2(a) is "designed to preserve public confidence in the fairness and impartiality of our system of justice," since "members of the Bar are viewed by the public as having unique insights into the judicial system." The U.S. Supreme Court has recognized that restrictions on speech aimed at "protecting the integrity of the judiciary" and "maintaining the public's confidence in an impartial judiciary" serve a compelling state interest and do not violate the First Amendment. See Williams-Yulee v. Fla. Bar (2015). Thus, we reject Respondents' arguments that these proceedings violate their rights to free speech under the First Amendment.
The court also concluded that they violated rule 3-4.3, which bars "[t]he commission by a lawyer of any act that is unlawful or contrary to honesty and justice," and that they "violated the Oath of Admission to The Florida Bar, which requires Florida lawyers to maintain the respect due to courts of justice and judicial officers" by "essentially le[ading] a campaign against Judge Weiss in retaliation for his judicial decision in a case handled by their firm." It also added that "Jerry, who represented Rop before the circuit court, violated rule 4-8.4(d), which prohibits conduct that is prejudicial to the administration of justice":
Jerry's statements were widely disseminated and caused prejudice to the administration of justice. Judge Weiss even received death threats and had to secure additional security detail for his protection. We approve the referee's findings of fact and recommendation that Jerry be found guilty of violating rule 4-8.4(d).
The court concluded that both lawyers should be suspended for 30 days.
Joshua E. Doyle, Patricia Ann Toro Savitz, Mark Lugo Mason, and Ashley Taylor Morrison, represent the Florida Bar.
