Regrettably, Counsel renews his criticisms
and attack of the undersigned and others in the affidavits submitted, and essentially sets forth his
misperceptions and misstatements of facts. It appears that the underlying bases for Counsel's
discontent are the rulings of the undersigned that Counsel was precluded from communication
with this office by fax because of a directive previously issued by the Chief Administrative Law
Judge, the staying of all discovery by all parties pending the resolution of the threshold issues of
jurisdiction and timeliness, and the denial of his motion to take ex parte interviews with
Respondents' employees and that Respondents provide Counsel with a private room and key at
Respondents' facilities. Everything occurring thereafter has been derivative. The requirement
that Counsel communicate with this forum by mail or overnight mail was done by a letter of
April 2, 1997 addressed to Counsel by Chief Judge Vittone, apparently because of prior abuse by
Counsel of which I have no specific knowledge. The order of the undersigned merely required
compliance with the Chief Judge's directive, and Counsel was not prejudiced in view of the
adequacy of the mails. The staying of all discovery pending resolution of the threshold issues of
jurisdiction and timeliness was done in the interest of judicial economy as the nature of discovery
would be impacted by the ruling on these issues. In Counsel's opposed motion for ex parte
interviews and a room with a key, Counsel failed to show any good cause or any reason and in
the absence thereof, said motion was denied. These adverse rulings are not justification for the
litany of abuse sent to the undersigned thereafter.
The remainder of Counsel's response to the Order to Show Cause herein
needs no further comment. The document speaks for itself.
The document filed by Mr. Slavin entitled Objection to ALJ's Conduct of
Proceedings and Motion for Leave to File Motion for Judicial Recusal, dated September 9, 1998,
is contemptuous on its face. This act of misconduct directly affects the dignity and reputation of
the forum and the undersigned and must be deterred. The fact that the outrageous statements are
made in court related documents does not alter the contemptuous misconduct of Counsel. An
attorney making derogatory statements without legal grounds in a motion to disqualify a trial
judge constitutes misconduct due to its significant impact on the judicial system. Florida
Bar v. Carter, 410 So. 2d 920 (Fla. 1982); Ramirez v. State Bar of California, 169 Cal. Rptr.
206, 616 P.2d 399 (1980); Florida Bar v. Weinberger, 397 So. 2d 661 (Fla. 1981, reh'g denied,
454 U.S. 934 (1981). It has been held that verbally abusing a judge and filing an unfounded
ethics complaint was conduct so outrageous that it need not be analyzed for possible advocacy
merit. In re Vincenti, 458 A.2d 1268 (N.J. 1983). The use of partial quotations made by
a judge out of context to imply prejudice on the part of a judge and with the intent to have him
disqualified, among other things, resulted in disbarment in at least one jurisdiction. People
v. Selby, 606 P.2d 45 (Colo. 1979).
The purpose of the contempt power which most judges are invested
with is directed towards acts which tend or threaten to obstruct justice, or toward a failure to
carry out an order of the court, or towards acts which tend to bring the court into disrepute.
Thus, the purpose of the contempt power is to protect the court's reputation and ability to
administer justice. Any act which demonstrates disrespect for the court can be contemptuous.
Some acts are contemptuous on their face. Farmer v. Holton, 146 Ga. App. 102, 245 S.E.2d
457 (1978); see also, The Judicial Response to Lawyer Misconduct, published by
American Bar Association, Standing Committee on Professional Discipline, Center for
Professional Responsibility, May 1984 .
Unfortunately, the undersigned is not invested with contempt power.
However, it is difficult to think of a contemptuous act that does not call into question the fitness
of a lawyer to practice. Contemptuous acts are prohibited by the American Bar Association,
Model Code of Professional Responsibility, which prohibits conduct which is prejudicial to the
administration of justice. Acts which constitute contempt are those which lessen the authority or
dignity of a court or forum and which bring the court or forum into disrepute. See, The
Judicial Response to Lawyer Misconduct, Supra, VI.5.
The document filed by Mr. Slavin herein attacks the integrity of the
undersigned, falsely accuses the undersigned of making derogatory, inappropriate and
condescending remarks, and falsely accuses the undersigned of misconduct in not reading
"anything" which Counsel has filed. Counsel filed 19 motions or requests between
July 28, 1998 and September 9, 1998. Everything has been thoroughly read and the clarity,
content, quality, form and appropriateness of his submissions speak for themselves and warrant
no additional comment. Counsel has further accused the undersigned of acting as "defacto
defense lawyer" for Respondents, and has alleged that the undersigned is "ethically
challenged" and an embarrassment to the U.S. Department of Labor. Such unwarranted,
outrageous, insulting written abuse constitutes improper professional conduct and evidences a
shameless refusal to adhere to reasonable standards of orderly and ethical conduct. 29 C.F.R.
§ 18.36. The document filed by Counsel constitutes unethical and improper professional
conduct. 29 C.F.R. § 18.34(g)(3).
Because of the lack of contempt power, the only remedy of the
undersigned for the outrageous misconduct of Mr. Slavin is to bar him from appearing before the
undersigned in this or any other matter.
The document in question filed by Mr. Slavin is not an isolated instance.
In the case at bar, in a letter dated August 3, 1998, he accused the undersigned of bias,
favoritism, and a desire to "curry favor" with the national office of the Department of
Labor, Office of Administrative Law Judges. In the same document, he announced his intention
not to comply with the standard pretrial order of July 16, 1998 issued to all parties because
"General Eisenhower did not publish his plans prior to D-Day," and requested an
apology from the undersigned for issuing the standard pretrial order used for years in cases such
as this to avoid trial by ambush and for requiring him by order of July 29, 1998 to comply with a
directive of Chief Judge John Vittone,
dated April 2, 1997, issued because of Mr. Slavin's prior abuses. Mr. Slavin, in the same
document, requested the undersigned to show kindness, courtesy, and consideration towards
Complainant and attorneys, implying falsely that the standard pretrial order of July 16, 1998 and
the order of July 29, 1998 requiring compliance with Judge Vittone's directive were somehow
expressions to the contrary. All of the Orders of the undersigned issued in this case speak for
themselves.
On February 4, 1997 Administrative Law Judge Edith Barnett barred
Edward A. Slavin, Jr. from appearing before her because of his continuing pattern of wilful
misconduct, which included personal attacks on Judge Barnett. See, Johnson, et al. v. U.S.
Dept. of Energy, et al., 95 CAA 20, 21, 22 (February 4, 1997). No court in this country
would tolerate such contemptuous behavior as Mr. Slavin has demonstrated in the case at bar.
No judge of any forum should be subject to such personal abuse which undermines the integrity
of the entire system of conflict resolution as created under the statutes providing jurisdiction in
cases such as the one herein.
It is evident from the submissions of Counsel that he is unwilling or unable
to conduct himself in an appropriate professional manner. His written submissions further
demonstrate that he is unwilling or unable to exercise appropriate professional control. Routine
cover letters purporting to submit a document for filing are vehicles for the communication of
Counsel's negative opinions (i.e. , see letter of September 19, 1998 which Mr. Slavin
faxed in violation of the undersigned's July 29, 1998 Order, when Counsel sent a corrected copy
of the first page of his affidavit in response to the Order to Show Cause, re: Dismissal. Mr.
Slavin criticizes the "imperfect" Department of Labor for his failure to enclose the
corrected page when first submitted on September 9, 1998, and then proceeds to criticize the
undersigned for a past ruling). An adverse ruling is not a justification or license for personal
abuse of any court. Such behavior interferes with the integrity, dignity, and the ability of the
judge to conduct a fair and impartial proceeding to which Complainant and Respondents are
entitled.
There is no First Amendment protection, as claimed by Mr. Slavin, for
abusive remarks critical of the judiciary, where those statements are false and prejudicial to the
administration of justice. Ramsey v. Board of Professional Responsibility of the Supreme
Court of Tennessee, 771 S.W. 2d 116 (Sup. Ct. Tenn. 1989). The Seventh Circuit has found
that "[e]ven a statement cast in the form of an opinion ("I think that Judge X is
dishonest") implies a factual basis, and the lack of support for that implied factual assertion
may be a proper basis for a penalty." Matter of Palmisano, 70 F.3d 483, 487 (7th Cir.
1995). See, In the Matter of Harlan E. Grimes , 364 F.2d 654, 656 (10th Cir.
1966) (court affirmed attorney disbarment because attorney made no attempt to substantiate
his charges against the judiciary and has not demonstrated in any manner that he had any grounds
or probable cause for making such assertions); cf. Standing Committee on Discipline of U.S.
Dist. Court for Cent. Distr. of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995) (although
court granted broad First Amendment protection to attorney criticizing judiciary, the attorney did
not make such remarks directly to the presiding judge in court documents).
Even if Mr. Slavin is afforded a First Amendment protection in his
remarks and criticisms of the undersigned, his abusive attacks directed to the undersigned in
court documents and improper professional conduct throughout the matter herein, have
demonstrated a failure to meet the standard of conduct as set forth in 29 C.F.R. §§
18.34(g)(3), 18.36. A distinction must be made between out of court criticism, opinions, and
remarks about a judge which may be protected by the First Amendment and in court speech or
court documents of the same nature directed to the judge which are contemptuous and constitute
improper professional conduct or violate standards of conduct. The failure to make such
distinction would render the concept of improper attorney conduct a nullity.
29 C.F.R. § 18.34 (g)(3) provides for the opportunity for hearing.
However, in Counsel's Response to the Order to Show Cause herein, he has not raised any
genuine issues of fact which would be the basis for a hearing. The document for which the OSC
was issued, Objection to ALJ's Conduct of Proceedings and Motion for Leave to File Motion for
Judicial Recusal, speaks for itself, was not addressed by Counsel in his response, and he did not
request a hearing on this matter. In view of his response to the OSC, no hearing is required. In
addition, 29 C.F.R. § 18.36 does not require a hearing. I find that Edward A. Slavin, Jr.
has violated both provisions for the reasons heretofore stated.
ORDER
1. It is hereby ordered that Edward A. Slavin, Jr., Attorney at Law, is
permanently barred from appearing before the undersigned in this or any other matter, and is
further barred from acting in an advisory capacity to any party to a proceeding before the
undersigned in this or any other matter.
2. It is further recommended the U.S. Department of Labor report to the
appropriate authority in the State of Tennessee, where Edward A. Slavin, Jr. is apparently
admitted to practice law, Tennessee BPR No. 012341, the misconduct of said attorney for
whatever disposition is deemed appropriate.
HENRY B.
LASKY
Dated: September 28, 1998
HBL
[ENDNOTES]
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