Jack Thompson knows incivility

Ah, the Casey Anthony trial continues to be the legal equivalent of “Jersey Shore,” or some other annoying TV reality show. In today’s episode: Hypocrisy! Revenge!  Irony! Abuse of process! Incivility!  And a special guest!

Cheney Mason, one of Casey Anthony’s defense attorneys, gave a raised middle finger (the international symbol of “I have nothing but contempt and utter disdain for you and your untoward words and conduct, so please have some form of unpleasant sexual intercourse with yourself!”) to a spectator who was verbally harassing Mason and others celebrating Anthony’s July 5 acquittal at a restaurant immediately after the trial.  Such public conduct by a lawyer is rude, undignified and inappropriate, but it is also rude, undignified and inappropriate for sea captains, puppeteers and plumbers, too. Incivility by a lawyer has to be especially egregious and must in some way threaten to undermine the administration of justice to raise the possibility of bar discipline, and flipping the bird to a jerk in a restaurant just plain doesn’t qualify. Now, a lawyer running all over town giving the finger to everyone for weeks on end, or a lawyer making the gesture to judges, opposing counsel or jury members in court would be very different matters. Such conduct would call into legitimate question a lawyer’s fitness to practice law. One such incident? No. I won’t speculate on what percentage of lawyers have given the upturned finger to someone during their careers, but you can.

Nevertheless, a Florida citizen decided to file an ethics complaint against Mason, which is his right. But this wasn’t just any Florida citizen; the complainant was Jack Thompson, a once nationally prominent attorney who managed the nearly impossible: he got himself disbarred for life in Florida for incivility, along with other ethical misconduct.
Yes, Thompson knows incivility. When he was finally disbarred, the court noted that he had made false statements of material fact to courts, repeatedly violated court orders, communicated the subject of a representation directly with clients of opposing counsel, and engaged in prohibited ex parte communications. There about six serious ethics rules violations right there, but the court was especially impressed with Thompson’s complete disregard for civility, professional respect and fairness. It noted that he had written and sent hundreds of pages of vitriolic and disparaging letters, faxes and press releases to individuals involved in litigation he was handling; that habitually denigrated the character, honesty and competence of judges and other lawyers, even  publicly accusing one judge of being amenable to bribes.
Here’s a sample of Thompson being Thompson: in one letter he faxed to a judge (the one he accused of being prepared to fix cases) and also addressed to Alabama State Bar officials, he wrote, “I am tired of being treated like pig slop by the Alabama State Bar and by an out-of-control tyrant who sits, for now, on the bench in Fayette County.” In a whimsical touch, he attached a photo of the judge (played by the late Fred Gwynn) in the movie “My Cousin Vinny.”

A Florida bar referee wrote in her report that Thompson’s unrestrained attacks on opponents constituted a “pattern of conduct to strike out harshly, extensively, repeatedly and willfully to simply try to bring as much difficulty, distraction and anguish to those he considers in opposition to his causes.” She couldn’t say that Thompson wasn’t whimsical in his disrespect: once he filed a motion that mixed his legal arguments with images of swastikas, kangaroos in a court, monkeys as judges and random photos of celebrities.

So why did Thompson, who continues to argue vociferously that he was unjustly disbarred because of a political vendetta against him by the bar and the judiciary, try to make trouble for another Florida lawyer who, in the matter of incivility, is a veritable piker compared to a virtuoso like Thompson? Easy. Thompson wanted to exploit the situation to continue arguing that the Florida Bar is biased against him.

Thompson came out with rhetorical guns blazing after Florida bar counsel Annemarie Craft announced her rational decision to close the case.  She wrote that  “…while the actions of Mr. Mason are not condoned” his obscene gesture doesn’t require sanctions and discipline “as this appears to be an isolated incident unrelated to a legal proceeding,”  Please note that Craft combines two factors here. The conduct is unrelated to a legal proceeding—lawyer conduct separated from the actual practice of law has to be especially egregious to justify discipline—-and it was isolated, which is to say, there has not been a pattern of such conduct. A pattern, as I suggested earlier, could make even non-law related conduct serious enough to justify discipline.  Thompson ignored this  in his letter to Craft,  in which he accused her of being a liar and the bar of being guided by cronyism.

Misusing the ethics complaint process to make a dubious and self-serving argument about the bar’s alleged double standard—especially when the argument makes no sense, since Thompson was disbarred for conduct that was related to legal proceeding and was a pattern—is itself spectacularly unethical. A critic of the disciplinary process, Jack Thompson is employing it against another lawyer for conduct that pales in comparison to his own offenses.  The complaint is a Golden Rule breach; it is a violation of the Categorical Imperative, using another human being to achieve personal ends. It is an act of vengeance and petulance, not motivated by concern for the profession’s dignity—even Thompson wouldn’t be able to say that without giggling—but to create an opportunity for Thompson to continue his vendetta against the Florida bar.
This would be unethical conduct for a lawyer, but in Thompson’s case, it is only the unethical conduct of a citizen. The Florida Bar made sure of that, and we should all be grateful.