ABA Model Rules 8.2-8.3 violated the First Amendment and jeopardizes the integrity of a free open and democratic Judicial System and Supreme Court case law
A hurricane of recent events that has proven to be a mixed bag of blessings and challenges has prompted me to write this article.
JoAnne Denison, JD, a stellar legal professional whom I have known for decades, has signed up as an independent sub-contractor paralegal with my company because her attorney license has a three-year suspension for what appears to be enforcement of an ambiguous ARDC Rule in violation of Ms. Denison’s First Amendment Rights to Free Speech.
Ms. Denison is an amazing woman who received her Juris Doctorate from Indiana University in 1985. She practiced law as a licensed attorney in Chicago for over 25 years. She was my mentor and I learned many great things from her that I attribute to my success to this day.
Of course, it looks rather ironic and almost strange that an attorney I once worked for as her assistant/paralegal, who mentored me, is now without her license and working for my company as a sub-contractor paralegal. Her addition to my team is a mixed feeling of exhilaration and melancholy. On the one hand, having someone with her level of education, experience and talent is an incredible gift to my company, to put it mildly. On the other hand, the circumstances surrounding the suspension of her license and pushing her into a sub-contractor paralegal status brought a cloud to the situation that was troubling to me, so I decided to investigate the circumstances surrounding her license suspension.
Upon review of the ARDC transcripts of the hearings for Ms. Denison’s license suspension, I found that, in my opinion, she was NOT suspended for any of the reasons that the ARDC in any given state exists for in the first place. The ARDC licensing and regulation of an attorney’s conduct in any given state was put in place to protect consumers. The entire premise of a law degree, a bar exam, and a license registration is to ensure that consumers are protected and they get adequate legal representation.
The ARDC hearing transcripts for Ms. Denison’s license suspension clearly illustrate that Ms. Denison was a vociferous advocate for her clients. Moreover, there is not one single negative mark against Ms. Denison from any of her clients in the 25+ years that she was licensed to practice law. Thus, it begs the question: if Ms. Denison was NOT suspended for attorney conduct with respect to her advocacy representation for her clients, then what was the basis for her license suspension?
According to the transcripts, Ms. Denison had her license suspended for “reckless disregard for the truth” with her assertions in her online blog that certain judges and other attorneys were corrupt. Ms. Denison made these assertions of corruption on her blog and to authorities to prompt investigations into those matters. Despite the fact that Ms. Denison’s license was suspended, she has continued with the corruption allegations and attributes her license suspension to a retaliation against her for being a whistle-blower.
Moreover, Ms. Denison’s efforts to shine a light on the alleged corruption she has asserted has had some favorable results. The corrupt actions of certain judges and attorneys have been uncovered from investigations Ms. Denison catalyzed, which seems to suggest that the “reckless disregard for the truth” may not have been so recklessly disregarded after all.
There are many things about Ms. Denison’s license suspension that bother me, and they have nothing to do with the obvious bias I have for her because she was my mentor when I first started working as a paralegal 20 years ago.
What bothers me the most about Ms. Denison’s license suspension is the dangerous precedent it sets for the ARDC in any given state to over-reach its authority and put a muzzle on attorneys in violation of their First Amendment right to free speech against any one of the three branches of government: namely, in this case, the judicial branch.
We have First Amendment rights for free speech to protect every possible type of offensive speech imaginable. Pornography, hate lyrics in music, violent images in movies, misogynistic music videos, presidential candidates stereotyping Hispanics and Muslims, flag burning, and the list goes on. We have yet to restrict speech because somebody was offended.
If the ARDC in any given state increases the reach of its authority beyond that of protecting clients to that of putting a muzzle on attorneys for political reasons, it flies in the face of why the First Amendment of the United States Constitution exists in the first place. The First Amendment protection of free speech exists to ensure that a democratic society with its citizens can speak out against the officials in any branch of government to hold them accountable and to shine a light on corruption. It was designed to make public officials uncomfortable. The First Amendment right to free speech is a vital component fail-safe to the checks and balances we have in our government system. When all else fails, the citizens can speak up and shine a light anywhere in any branch of government that may be doing wrong, prompt investigations, and hold them accountable.
There is nobody who is closer to the judicial system on a daily basis than attorneys. Attorneys are the ones that are in the courtrooms in front of the judges and dealing with the intricacies and daily activities therein. If a precedent is set that the ARDC in any given state can put a muzzle on an attorney for being politically incorrect by making the judicial officials or officers of the court uncomfortable from shaking up the status quo and demanding investigations, then what we are left with is an entire branch of government that can run rampant with corruption without a citizen watchdog: a dangerous path in the wrong direction.
Upon further research on this matter, I discovered that the United States Supreme Court has reviewed and ruled on the issue of ARDC rules against the First Amendment, confirming that an ARDC enforcement of a Rule can be a violation of an attorney’s First Amendment rights to free speech. For example, inBates v. State Bar of AZ, 433 U.S. 350 (1977), the U.S. Supreme Court weighed the First Amendment rights of certain Arizona attorneys who had their license suspended for advertising their services against the weight of the attorneys’ violations of a certain Arizona Bar Rule for doing so, and in that situation, determined “the present application of the disciplinary rule against appellants to be violative of the First Amendment.” (Id. at 384.) Thus, it appears that Ms. Denison may have a case for violation of her First Amendment rights for speaking out against judicial corruption and demanding investigations despite what may be a violation of a State Bar Rule for doing so.
It is my sincere hope that Ms. Denison’s license will be reinstated sooner rather than later. However, until that happens, I have no intention of infringing on Ms. Denison’s First Amendment Right to Free Speech, no matter how uncomfortable it is to anyone, while she is a sub-contractor paralegal with Paralegal Support Services Inc. I consider it an honor and a privilege to have her here. She brings so much added value to the level of services we can provide with her presence. I am confident that Ms. Denison will continue to provide excellent work product for supervising attorneys and their clients just as vociferously as she did as a licensed attorney, and she will maintain the highest level of integrity, protect attorney-client privileges, follow all the state and federal Bar Association Rules for paralegal conduct, and provide incredible work product with great value for the licensed attorney-clients that are fortunate enough to get her for completion of their projects when they sign up with us.
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ABOUT THE AUTHOR: Sunita Advaney the Chief Executive Officer of Paralegal Support Services, Inc., a 21st century freelance virtual paralegal company providing cost-effective solutions for attorneys to use experienced paralegals that preserve attorney-client privilege through a HIPAA-Compliant secure cloud-computing platform on an as-needed basis. Sunita has over 20 years of experience providing support services for attorneys in large firms, medium firms, small firms, and solo practice firms primarily in the areas of Litigation, Contracts, Bankruptcy, and Intellectual Property. Please visit http://www.eparalegals.net.