On November 15, 2012, Sarah Peterson Herr, a research attorney for the Kansas Court of Appeals, wrote the following tweets while watching a disciplinary hearing (oh, the irony) for former Kansas Attorney General, Phil Kline:
- “Holy balls, There are literally 15 cops here for the Phil Kline [sic] case today. Thus I actually wore my badge.”
- “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag [sic].”
- “I predict that he will be disbarred for a period of not less than 7 years.”
- “It’s over…sorry. I did like how the district court judges didn’t speak the entire time. Thanks for kicking out the SC Phil [sic]! Good call!”
Really? These tweets are the perfect example of what not to do when in a position of trust as a court employee or practicing attorney. The statements reflect poorly not only on the tweeting lawyer, but also on the Judicial Center, the appellate process, and the administration of justice.
And in a disciplinary action against Herr held on January 13, 2014, a three-judge panel so stated. Finding that Herr violated KRPC 8.4, the court asserted, “[Herr] misrepresented the law and facts in her prediction of disbarment for seven years;” “[Her tweets] showed a general bias against Mr. Kline in the Judicial Center;” and “the overall tone of her comments revealed a disrespect for a litigant before the appellate courts as well as a disrespect for the Supreme Court Panel hearing the case.” Taking into account several mitigating factors, the court gave Herr an informal admonition and the matter is now closed.
To read the court’s opinion in full, click here.
A Florida attorney recently received a tougher sanction than what the Florida Bar and a court-appointed referee sought for unprofessional behavior. The Bar filed a complaint against the attorney alleging, “he engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of litigating a civil case.” The complaint is notable as it is primarily based upon a lack of professional conduct by the attorney. A referee was appointed to consider the complaint and hold hearings, and he ultimately recommended that the attorney be found to have violated the following Florida Rules of Professional Conduct: 4-3.5(c) for disrupting a tribunal, 4-8.2(a) for making false statements, 4-8.4(a) for violating the Rules of Professional Conduct, and 4-8.4(d) for engaging in conduct that is prejudicial to the administration of justice.
While the referee recommended a 90-day suspension and the Florida Bar asked for a one-year suspension, the Florida Supreme Court ultimately decided on a two-year suspension, a public reprimand, probation for eighteen months upon reinstatement to the Florida Bar, a mental health evaluation, and an award of $7,970.53 to be paid to the Florida Bar.
In an opinion issued on January 27, the Supreme Court of California denied Stephen Randall Glass admission to the California State Bar. Glass is infamous for his two-year streak of dishonest journalism that ultimately resulted in more than forty wholly, or mostly, fabricated publications.
The opinion denying Glass’s admission cited to Rule 4.40(B) of the State Bar of California Title 4 Admissions and Educational Standards and explained that admission proceedings are concerned with “whether the applicant for admission is a fit and proper person to be permitted to practice law, and that usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude.” Furthermore, the Court found of “particular significance” that serious misconduct warrants a stronger showing of rehabilitation.
Glass admitted at his admission hearing that “all but a handful” of his forty-two published articles contained fabrications or were entirely fabricated. He even went so far as to fabricate background materials “to dupe the fact checkers assigned to vet his work.” According to the opinion, Glass created “a phony Web site, phony business cards, and even recruited his own brother to pose as a source.”
According to the California Supreme Court, a conviction for possession of child pornography is automatic grounds for disbarment. The court’s ruling designates possessing child pornography as an “act of moral turpitude” that renders a lawyer unfit for practice. The case involves Gary D. Grant, a former Army lawyer at the Los Alamitos Army Reserve Base, who pleaded guilty to one count of knowingly possessing child pornography. The California Supreme Court overruled the State Bar Review Department’s decision that would have placed Grant on probation for three years and imposed a two-year suspension of his license.
Justice Carol Corrigan writing for the court stated: “The knowing possession of child pornography is ‘a serious breach of the duties of respect and care that all adults owe to all children, and it show[s] such a flagrant disrespect for the law and for societal norms, that continuation of [a convicted attorney’s] State Bar membership would be likely to undermine public confidence in and respect for the legal profession.’”
Read the full court opinion here.
Are parties required to preserve text messages for the purposes of discovery? Text messaging has become more and more prevalent today; a September 2013 survey by the Pew Research Center found that 94 percent of cell phone owners between the ages of 30 to 49 send and receive texts, as do 75 percent of cell phone owners aged 50 to 64. Consequently, text messages are also becoming more and more common in discovery requests.
While some may doubt the significance or relevance of text messages, a quick glance at the news would suggest otherwise: text message conversations involving aides to New Jersey Governor Chris Christie led to accusations of intentional closures of the George Washington Bridge, and former New York Congressman Anthony Weiner was caught in a lie with his own text messages.
As more and more courts are handing down decisions outlining a party’s duty to preserve text messages, it is important that attorneys become aware of this emerging requirement in order to educate their clients and employees. Failure to do so can result in sanctions. While this is currently being judged on a case-by-case basis, the prevailing trend appears to treat text messages the same as emails and other forms of written communication.
Read more about sanctions for failing to preserve text messages here.
On December 17, 2013, the Missouri Court of Appeals, Eastern District, held that a prosecutor’s public twitter comments—even where arguably inappropriate and improper pursuant to the Missouri Supreme Court Rules of Professional Conduct—do not justify reversal of a verdict when there is no evidence that the jury is aware of or influenced by those comments.
Defendant David L. Polk, convicted by a jury in the Circuit Court of the City of St. Louis of forcible rape and forcible sodomy, filed motions to dismiss and to strike the jury panel upon learning that Circuit Attorney Jennifer M. Joyce made seemingly inappropriate public comments about Polk’s case via Twitter. Specifically, during trial Joyce tweeted, “Watching closing arguments in David Polk ‘cold case’ trial. He’s charged with raping 11 yr old girl 20 years ago,” and “I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how.” Once the case was submitted to the jury, Joyce continued, “Jury now has David Polk case. I hope the victim gets justice, even though 20 years late.” Polk contended that these comments prejudiced the jury against him and violated Missouri Supreme Court Rule of Professional Conduct 4-3.8(f).
The Massachusetts Board of Bar Overseers issued a public reprimand for a lawyer that it found had failed to maintain the requisite level of technological competence and appropriate degree of communication with his client thereby impermissibly obstructing the opposing party’s access to evidence in the process.
The dispute involved a complaint by the defendant’s former employer in which the employer alleged that the defendant had taken a laptop from his former employer and downloaded and transferred files onto a laptop provided by his new employer. The former employer sought to obtain all allegedly transferred information and documents.
The court entered an order allowing the former employer’s expert to examine the laptop at issue. However, based solely upon the representations of his client, the defendant’s lawyer concluded that there was information on the laptop was not germane to the dispute and permitted the defendant to delete significant information from the laptop.
The Massachusetts Board’s public reprimand noted that the lawyer’s lack of experience in electronic discovery resulted in the lawyer’s failure to understand that the court’s order required that the employee’s entire hard drive be preserved for the plaintiff’s expert. The Board found that the lawyer violated Massachusetts Rules of Professional Conduct 1.1 competence, 1.4 communication, and 3.4(a) fairness to opposing party and counsel. In addition to the public reprimand, the lawyer was ordered to attend two CLE programs, one on electronic discovery and one on ethics and law office management.