In Re: Alexander Zeno, Nos.07-8017, 07-2065. After not doing anything for awhile, the First slowly stirs. This first case is a reciprocal disciplinary matter. The lawyer was punished (though not disbarred) by the District Court.
But, the underlying facts don’t seem too egregious. He seems to have bashed the prosecutors and judges in a motion. He accused them of laughing at his legal arguments. The District Court said he had a “chronic tendency” to use "belligerent and insulting prose in addressing members of this court," which amounted to a violation of Rule 3.5(d) of the ABA Model Rules of Professional Conduct.
The First pays some lip service to the notion that judges need to have thick skin, but says that even though nobody really knows where the line is, because he repeatedly crossed it, the District Court didn’t abuse his discretion in punishing him. While a lot of caselaw is cited, a lot of it seems off point. For example Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991) is cited for the proposition that “during a judicial proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed.” But Gentile dealt with prejudicial pretrial statements, the Atty. Gentile won, and nobody was able to show that anyone was prejudiced, anyway. Likewise in Standing Comm. on Discip. v. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995), which the First cites is another case where the lawyer wins.
The First redeems itself by noting that his CJA application was already denied, and therefore it isn’t going to suspend him from practice from the First.
This really strikes me as a gang-up on an attorney they don’t like. It seems really strange that the entire opinion essentially says “We don’t know where the line is, but he repeatedly crossed it.” Maybe someone can tell me why I am wrong.
It is worth noting that at the same time, at least one District Court invalidates Michigan’s “professionalism” rules which some judges seem to want to use against Atty. Fieger. See Legal Ethics Forum.
Your comment "This really strikes me as a gang-up on an attorney they don’t like." is right on target. The judges at the United States District Court for the District of Puerto Rico did not like me because I had insisted on fairness. They didn't like it and constantly abused their discretion knowing that the First Circuit would back them up. This was particularly true of Judge Fuste who had been reversed two times by the First Circuit on appeals handled by me. The press portrayed Judge Fuste as unfair.
Judge Fuste, the Chief Judge, along with some of the others, was waiting for the right moment to be vindictive against me. They came up with a couple of excuses, one by Judge Dominguez and one by Judge Cerezo. Judge Cerezo's was so frivolous that not even Judge Fuste took it into consideration. Judge's Dominguez was better for their purpose since it depended on facts which they were able to control and distort.
They initiated proceedings where all my due process rights were denied: (1) Judge Fuste forbid me from making public the proceedings; (2) No discovery was allowed, though there were factual controversies; (3) No hearing; (4) Though I requested that some judges be recused, they refused to do so. The result was obvious, a suspension for three months. Needless to say Judge Fuste issued a published opinion where he discredited me and distorted the record.
I appealed the matter to the First Circuit. They gave me a pro forma hearing where none of the judges, except Judge Lynch, talked to me. She asked me if I was sorry and I said I had nothing to be sorry about. The First Circuit knew I had done nothing wrong and that is why they did not impose reciprocal discipline. However, the judges in Boston had to back up their friends in San Juan and they affirm them notwithstanding the clear violation of my due process rights.
I did not take the matter to the U.S. Supreme Court, though I was planning to do so, because the First Circuit, correctly, held that attorneys have a right to criticize judges, as long as they don't do it from within a case.
In light of their obvious malice / negligence, I sued all of the judges, including Judge Torruellas and Judge Howard of the First Circuit, for their actions which were nothing more than an act of vengeance against me.
Posted by: Alexander Zeno | July 17, 2009 at 10:06 PM