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
By Eugene Volokh September 1, 2015
The Volokh Conspiracy|opinion
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.
Does Louisiana Lawyer David Groner Have the Right to Have His Mistakes Forgotten?
by Paul Alan Levy
Tuesday, September 01, 2015
Louisiana lawyer David Groner has made a few mistakes. Which was the most serious?
David Groner’s Misconduct Toward Clients
At some point time before January 18, 2007, one of Groner’s associates filed a lawsuit on behalf of some clients in the wrong venue; the defendants moved to dismiss. Groner’s firm nevertheless paid a small amount of money to the clients, but, apparently, left the clients believing that it was the defendants rather than Groner’s firm that were making the payments, leading the clients away from thinking about the possibility that they might have a claim for malpractice. The clients ultimately learned the truth, then complained to the Bar; the upshot was a joint petition for discipline, signed both by Groner and the Office oi Disciplinary Counsel, calling for a deferred six-month suspension from the Bar because of what the joint petition called “at a minimum, . . . a misrepresentation as to the true nature of the January 18 transaction.” The state Supreme Court characterized its ruling as having stemmed from an “investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Groner later told blogger Eugene Volokh that “dishonesty, fraud, deceit, or misrepresentation” is simply one of the categories into which the Louisiana Supreme Court places disciplinary actions, and hence that the use of this phrase did not mean that he engaged in any “dishonesty, fraud or deceit”; he felt that the only fair characterization of the conduct for which he was disciplined was “misrepresentation.”
When Groner ran for public office in 2011, his consent discipline was raised as an issue against him.
Groner’s Misuse of His Position as an Officer of the Court
Then, in late August 2015, when the Daily Iberian, a local newspaper, published a story about a case that Groner was handling, an anonymous commenter sniped at Groner by referring to “the truth [having come out] about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.” Groner sued the Daily Iberian and, based on an ex parte verified complaint that he did not send to the defendant, he obtained a temporary restraining order forbidding the newspaper from “publishing or posting . . . any article or story in which plaintiff . . . Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”
The order was baseless, and in several different ways. The complaint reveals that the only claim alleged in the lawsuit was defamation, but wholly apart from whether the facts described in the disciplinary memorandum could fairly be characterized as fraud and dishonesty as well as misrepresentation, under 47 U.S.C. § 230 the newspaper itself cannot be held liable, or enjoined from carrying, alleged defamation by a commenter. Moreover, although the complaint alleged that the Doe wrote “false and misleading postings” despite being “well aware of the truth,” but it did allege that the newspaper carried the comment with actual malice. Because Groner had run for office only four years before, he may well have been a public figure. And a temporary injunction is an impermissible prior restraint, strictly forbidden in defamation cases by the Supreme Court’s decision in Organization for a Better Austin v. Keefe: “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.” A last flaw going to the merits: Even outside the context of the preliminary injunction context, Louisiana is one of the states that still follow the maxim that equity will not enjoin a libel. And procedurally, even if the issuance of a TRO without notice is acceptable under Louisiana law (and a motion for reconsideration by the newspaper argues that it was not), the Supreme Court’s decision in Carroll v. President and Commissioners of Princess Anne forbids preliminary relief against without a detailed showing of the inability to provide notice to the defendant. But Groner made no showing of inability to give notice; quite to the contrary, the complaint alleged that Groner had been communicating with the newspaper’s publisher who refused to removed the critical posting because he deemed it “fair comment.”
The complaint also suffered from some more technical defects. It never squarely alleged that the comment over which he was suing is false. Instead, it alleged that Groner had provided the newspaper with “documentation that the plaintiff . . . was found not guilty of conduct that involved dishonesty, fraud or deceit.” Under the best evidence rule, the document itself would have been the proper way to prove its contents, and this case shows the wisdom of that rule, especially in an ex parte context – assuming that the “documentation” was the joint petition for discipline, that document does not find Groner “not guilty” of anything; to the contrary, it says that he was guilty of “at a minimum . . . misrepresentation.” Moreover, Groner did not verify the complaint on personal knowledge, but only “to the best of [his] knowledge, information and belief.” An experienced judge, indeed any experienced lawyer, should have detected these problems.
But Groner did not present his request for relief to an experienced judge. Rather, he was at pains to tell me that issuance of the TRO was not the judge’s fault, because the judge had only recently been elected to the bench (a fact confirmed for me by the newspaper defendant). Although it is awfully decent of Groner to take personal responsibility and deflect blame from the local judge, I don’t excuse the judge that easily – judges are supposed to stand up for the constitutional rights of defendants, and they ought to know better that to issue injunctions against speech without at least taking a look at the law books. But in many ways, Groner’s defense of the judge only makes Groner look worse: did he assume that he could get away suppressing criticism given how inexperienced the judge was?
Groner Fails to Suppress the Criticism
Once it was informed that a TRO had been issued against it, the newspaper removed the comment in question, but it published an article about the lawsuit, and the story was picked up by other local news media as well as by Ken White at Popehat. But it was, it appears, the news that Eugene Volokh was preparing a post for his Washington Post based blog that persuaded Groner that the Streisand Effect might end up having an even more deleterious effect on his reputation than the comment from some anonymous Daily Iberian reader; accordingly, he told Volokh by email that he was going to dismiss the lawsuit.
I found this part of his email, which Volokh included in his blog post about the case, particularly telling:
“The end result is classic Streisand effect, I made it worse by trying to correct it. . . . I have now realized that I cannot control what is said on the internet and will do my best to return to anonymity.”
It is refreshing that Groner now takes full responsibility for his mistake, and for the public consequences of that mistake. Groner generously responded to my questions about the case, as he apparently responded to Volokh, and he willingly sent me a copy of his complaint (as he sent the underlying bar disciplinary consent motion to Volokh). Credit where credit is due.
How Long Before Groner Can Hide His Discipline from Future Clients?
In the short run, at least, Groner has run afoul of the Streisand effect, and he knows it. But how long will that continue? Can Groner return to practical anonymity?
You would think that prospective clients of a lawyer would want to have ready access to facts about his having misled clients, just as clients might want to have access to facts about his failing to pay his taxes for a long enough time that his house was foreclosed to pay his debts. But Spanish lawyer Mario Costeja González persuaded the European Court of Justice to grant a petition that he filed in 2009, arguing that it was unfair for Google to bring his 1998 financial troubles to the attention of his potential clients who might run a search based on his name, because the forced sale had been concluded years before and was no longer “relevant.” That court, applying the “right to be forgotten” to Google on the theory that Google is a “data controller” under the European Union’s data directive, ordered Google not to return any results about the financial problems to searches for information about González.
Subsequent rulings in Europe seek to extend this ruling to all of Google, Google.com as well as the local Google databases; European officials are also trying to prevent Google from returning reports about removal orders to searches for the names of people who have sought removal orders.
Most lawyers agree that such right to be forgotten rulings could not extend to the United States, consistent with the First Amendment, but there are some privacy advocates such as Marc Rotenberg at EPIC who are campaigning forcefully for such a right; and even some well-known free speech advocates, such as Marc Randazza, have lent their names to that cause. Randazza has, indeed, joined the Board of Directors of the “Association Against Internet Defamation, Denigration and Harassment.”
If the right to be forgotten applied in the United States, could David Groner have succeeded in hiding his discipline from Google search engine users who conduct a search for information about him, if he had only waited a year or two to initiate the request? How long after his 2008 discipline for his January 2007 misconduct will that misconduct no longer be legally “relevant”? And who decides when published speech about that subject is no longer relevant, and hence should be hidden from search engine users?
And is it just the underlying discipline that becomes irrelevant, or will the discussion of his professional discipline in the 2011 election also be irrelevant? And what about the characterization of that discipline in the August 2015 comment on the Daily Iberian, and the discussions of that discipline in blogs such as Popehat and the Volokh Conspiracy? Must that be forgotten along with the discipline? To what extent does Groner’s attempt to use litigation to suppress commentary by readers of a newspaper disqualify him from having his misdeeds forgotten?