The Florida Bar, In re

• Decision Date: 24 October 1973
• Docket Number: No. 43920,43920
• Parties: THE FLORIDA BAR. In re Paul SHIMEK, Jr.
• Court: Florida Supreme Court

Page 686

284 So.2d 686

THE FLORIDA BAR.

In re Paul SHIMEK, Jr.

No. 43920.

Supreme Court of Florida.

Oct. 24, 1973.

Kent Spriggs, Tallahassee, for petitioner.

Barry W. Beroset, Asst. State's Atty., for respondent.

PER CURIAM.

In this Bar disciplinary proceeding, petitioner, Paul Shimek, Jr., seeks review of an order entered by the Circuit Court of Escambia County on April 9, 1973, wherein that court found petitioner to be guilty of violation of both Canon EC8--6 and Canon DR8--102(B), 32 F.S.A. and ordered that he shall within five (5) days from the date of the order file with the Clerk of the Court a public apology, directed to the judiciary of the State of Florida, failing which, he shall, upon the expiration of said time, automatically stand suspended from the practice of law for a period of twenty (20) days. Review of this order is sought pursuant to Rule 11.09, Florida Bar Integration Rule, 32 F.S.A.

This disciplinary proceeding against petitioner arose from statements made by him in a memorandum filed with the United States District Court for the Northern District of Florida, Pensacola Division. Shimek had received an adverse ruling by way of summary judgment in a case before the Circuit Court of Escambia County, Florida. After rehearing was denied, Shimek filed suit in Federal Court alleging violation of his cient's civil rights. In opposition to a Motion to Dismiss his cause in the federal court, Shimek filed a 'Supplementary Memorandum in Opposition to Motion to Dismiss' wherein he included the following paragraph:

'Succinctly put, the state trial judge avoided the performance of his sworn duty. To repeat a time worn phrase--you cannot get justice in a state court where the judge is a product of the prosecutorial system which aided dramatically in elevating him to the bench. A product of that system who works close with Sheriffs and who must depend on political support and re-election to the bench is not going to do justice. We are forced into this court because of the federal court's general attitude that state courts are available and should first be sampled. We shouldn't be rejected here because we tried to follow the federal court's general guidelines. Justice delayed is justice denied. How much longer must Plaintiff wait?'

The Federal District Court concluding that the above language represented a scurrilous attack upon members of the state judiciary, completely unwarranted by the record before it, and outside all bounds of propriety, by order dated January 25, 1973 expunged the above paragraph from the memorandum and ordered the clerk of that court to refer a copy of the entire memorandum containing the aforestated paragraph to Chief Judge Woodrow Melvin, First Judicial Circuit of Florida, so that he may be apprised of the same.

Upon receipt of this order from the Clerk of the United States District Court, the Chief Judge of the First Judicial Circuit in an order entered January 29, 1973, wherein the Judge indicated,

'It would appear that the supplementary motion referred to in the order entered by Judge Winston E. Arnow was signed by one Paul Shimek, Jr., a member of the Florida Bar engaged in the practice of law at 517 North Baylen Street, Pensacola, Florida.

'Upon consideration of the foregoing there has been made known unto the undersigned as Chief Judge of the First Judicial Circuit of Florida that Paul Shimek, Jr., has been guilty of a violation of the Professional Code of Ethics as promulgated by the Supreme Court of the State of Florida.'

directed the State Attorney to institute appropriate disciplinary proceedings in the name of the State of Florida. Pursuant to Rule 11.14, Florida Bar Integration Rule, and the aforestated order of the Circuit Judge, the State Attorney filed a motion to discipline Shimek in the Circuit Court of Escambia County alleging the above facts and charging:

'4. That Paul Shimek, Jr., a member of the Florida Bar, by virtue of the above referenced statement in his 'Supplementary Memorandum in Opposition to Motion to Dismiss' filed in the U.S. District Court for the Northern District of Florida on January 23, 1973, did violate Canon 8 of the Code of Professional Responsibility which is entitled 'A Lawyer Should Assist in Improving The Legal System', and in particular, Ethical Consideration 8--6:

'. . . Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has the right to critize (sic) such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.'

'5. That Paul Shimek, Jr., did violate Disciplinary Rule 8--102(B) by knowingly making a false accusation against Circuit Judge William Frye, to-wit: by stating in his 'Supplementary Memorandum in Opposition to Motion to Dismiss' that '. . . the state trial judge avoided the performance of his sworn duty.'"

Shimek pursuant to 28 U.S.C. § 1442(a)(3) filed a petition for removal of this bar disciplinary proceeding to the Federal District Court which petition was denied by that court. In remanding the matter to the Circuit Court of Escambia County, the Federal Court opined, inter alia,

'That lawyers admitted to practice before a court are considered officers of that court does not mean that the lawyer is an officer within the meaning of the statute here involved and under the circumstances here presented.

'Thus, in Cammer v. United States, 350 U.S. 399 (76 S.Ct. 456, 100 L.Ed. 474), in which the court reversed Cammer v. United States (96 U.S.App.D.C. 30), 223 F.2d 322, one of the cases cited by petitioner, the court held that an attorney, though an officer of the court in many respects, was not an officer as that term was used in the particular statute there involved.

'Congress, in enacting the statute here involved, intended the act to apply in those cases where federal officers, and indeed the federal government itself, require a federal forum. Willingham v. Morgan, 395 U.S. 402 (89 S.Ct. 1813, 23 L.Ed.2d 396), and see also discussion of the act in Tennessee v. Davis, 100 U.S. 257 (25 L.Ed. 648).

'Clearly the Congress did not intend that a lawyer admitted to practice before this Court might use this statute as a vehicle to remove to this Court disciplinary proceedings pending against him in a state court.' State of Florida v. Shimek, 73--23--Civ.P., March 9, 1973.

After hearing was held before the assigned judge at which Shimek, his counsel and an Assistant State Attorney appeared, the judge entered an order in which he found, as follows:

'The facts are without dispute. The composite Exhibit No. 1 are those documents attached to the motion filed herein by the State Attorney. It was stipulated that the motion, together with the attachments, constitute the State's case. The accused attorney offered no retraction of any portion of the language in question, his defenses, in essence, being his lack of motive, no personal animosity toward the trial judge, a later apology to the judge, and the right to comment and criticism directed to the election of State judges.

'It is significant that the District Judge adjudged the expunged portion of the memorandum, scurrilous and without foundation in the record. In the disciplinary proceeding, the accused attorney relied upon his 'after the fact' statements and contact with the circuit judge. He offered no evidence to prove that the statements made by him had any breath of truth in them. Before the Court is a memorandum which the Court must assume was drafted by the accused attorney, after weighing his thoughts and words and filed in an effort...