LOUISIANA LAWYER’S “SOCIAL MEDIA BLITZ”: First Amendment Right or Misleading &Impermissible Attempt to Influence the Judiciary?

An attorney, representing a woman alleging sexual abuse by the father in a custody and visitation battle, allegedly waged a social media attack on two judges involved in the case based upon the attorney’s frustration with the lack of progress in the case. The attorney’s strategy may cost her the suspension of her license for a year and a day if the Louisiana Supreme Court adopts the Louisiana Attorney Disciplinary Board’s Recommendation.

The Disciplinary Board’s Recommendation adopts the findings of fact of its Hearing Committee, which state that the attorney created an online petition that read, “Sign our petition telling the judges that there can be no justice … if the law and evidence is ignored…Ask yourself, what if these were your daughters? … Horrified? Call the judges and let them know.”

Additionally, the Committee found that the attorney created a website, which promoted the online petition and discussed sealed information about the cases, and also promoted the petition via twitter. One of her tweets read, “GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition.” The Hearing Committee also found that the attorney’s online petition contained false statements about the judges.

The Disciplinary Board Recommendation adopts the Hearing Committee’s finding of law in so far as the Committee found that the attorney violated the following Rules of Professional Conduct: Impartiality and Decorum of the Tribunal 3.5(a) and Misconduct 8.4(a)(c)(d).

The attorney asserts that her conduct is protected free speech and is quoted by the ABA as stating that she does not “believe the [suspension] recommendation does anything to protect the profession or make it more ‘honorable.’ To the contrary, it undermines it, and further ensures that ‘justice’ will be whatever judges say it is, regardless of the law, ethics, or all the facts and circumstances that would otherwise contradict them.”

Click here to read the full text of the Disciplinary Board’s Recommendation. Click here to read more.

Breaking News: Florida Joins the Conversation on Advising Clients to “Clean Up” Social Media

The Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations that an attorney has when advising a client to “clean up” the client’s social media pages before litigation is filed. Although there is case law that already addresses the issues of discovery and spoliation as they pertain to social media, the committee distinguished that these cases have only dealt with the issues of discovery and spoliation after litigation had commenced. Here, the committee is tackling the question of what an attorney may ethically advise in the pre-litigation stage.

The committee announced its agreement with the New York County Lawyers Association’s NYCLA Ethics Opinion 745 (2013), which stated that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages so that they are not publicly accessible. The committee also agreed that a lawyer may advise a client to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as: (1) the removal does not violate any substantive law regarding preservation and/or spoliation of evidence; and (2) an appropriate record of the social media information is preserved if the information is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

Finally, the committee turned its attention to the Florida Rules of Professional Conduct that are implicated on this issue. It pointed out that the general obligation of competence under Rule 4-1.1 may require an attorney “to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding the preservation of evidence, regardless of the privacy settings” (Emphasis Added). And it found that if a client asks an attorney about removing information from his or her social media pages, the attorney must adhere to Rule 4-3.4(a), which states that a lawyer must not “unlawfully obstruct another party’s access to evidence . . . that a lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding,” and that determining what information is relevant is a factual question to be decided on a case-by-case basis.

Attorney Disciplined for Tweeting About a Disciplinary Hearing: Really?

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 Prosecutor’s Right to Tweet?

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).

Read more

The trial judge denied Polk’s motions and the appellate panel affirmed the trial court’s decision. While acknowledging the apparent impropriety of Joyce’s twitter comments, Judge Van Amburg concluded that “the test is the fairness of the trial, not the culpability of the prosecutor” and that the prosecutorial misconduct must rise to the level of “substantial prejudice” where the question becomes “whether the misconduct substantially swayed the judgment.” Here, the court held that Joyce’s prosecutorial misconduct did not substantially sway the judgment because the potential jurors stated during voir dire that they did not follow the prosecutor’s social media postings, and because the trial court instructed the jury not to conduct any independent research or use social media such as Twitter or Facebook. Click here to read the opinion.

You got served – via Facebook?

Is such a statement really a misnomer?  The truth is that service of process via Facebook is a real possibility in the near future. The trend began in 2008 when an Australian court allowed a couple to be served with a foreclosure notice via their Facebook pages.  Since then several other courts around the world have issued opinions allowing service through Facebook.

In the United States there have been only two opinions issued on the subject and these courts split.  The first came in 2011.  A judge allowed the petitioner to serve divorce papers on her husband via email “Facebook, Myspace or any other social networking site.”  The judge reasoned that the traditional methods of service were antiquated and “technology provide[d] a cheaper and hopefully more effective way.”

While it is unlikely that service through Facebook will ever become a primary method of service, it may become acceptable in cases where locating a party has proven extremely difficult.  Such service will likely only be permitted with the court’s permission.  Based on the opinions of the courts who have allowed it and even from those denying such service, anyone attempting to serve another via Facebook will likely need to: (1) diligently have attempted other methods; (2) prove that the page belongs to who they are attempting to serve; and (3) show the Facebook page is a reasonable method of reaching them.

For more information visit the ABA Journal here and this article from lexisnexis.com.