ZAPPPPP!!! Regulatory and Professional
Responsibility Issues Involving Social
Media and Electronic Communications
James J. Grogan
Illinois Attorney Registration & Disciplinary
Commission
130 E Randolph Dr, Ste 1500
Chicago, IL 60601
(312) 565-2600
[email protected]
James J. Grogan is both the deputy administrator and the chief counsel of the
Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois
(ARDC). For more than 35 years, he has investigated and prosecuted hundreds of
charges of lawyer misconduct and has argued dozens of disciplinary cases in the
Supreme Court of Illinois. He is a past president of the National Organization of Bar
Counsel (NOBC), the bar association of lawyer regulators. For almost 30 years, Mr.
Grogan has taught legal ethics, first at the DePaul University College of Law and then
at the Loyola University of Chicago School of Law, where he is an adjunct professor.
He has presented hundreds of speeches, lectures, and workshops to law firms, bar
associations, corporations, and judicial and governmental groups and agencies on
various professional responsibility and lawyer regulation topics.
ZAPPPPP!!! Regulatory and Professional
Responsibility Issues Involving Social
Media and Electronic Communications
Table of Contents
I. Crescent City Trolling.....................................................................................................................................5
II.Cyber-Blitzing.................................................................................................................................................7
III.Texting.............................................................................................................................................................9
IV.Sexting...........................................................................................................................................................13
V.Flashing.........................................................................................................................................................14
VI.Snooping........................................................................................................................................................17
VII.Spoliation.......................................................................................................................................................19
VIII.Tweeting........................................................................................................................................................21
IX.Blogging.........................................................................................................................................................22
X.Facebooking..................................................................................................................................................24
A.Dissembling...........................................................................................................................................24
B.Intimidation...........................................................................................................................................25
C. Judicial Misconduct...............................................................................................................................26
XI.Uploading......................................................................................................................................................28
XII.Ratings...........................................................................................................................................................29
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 3
ZAPPPPP!!! Regulatory and Professional Responsibility Issues
Involving Social Media and Electronic Communications
I. Crescent City Trolling
In the anarchy immediately following Hurricane Katrina, a group of heavily armed New Orleans
police officers were dispatched to the Danziger Bridge in response to an emergency call reporting shots being
fired at police. There, amid the chaos, they shot and killed two unarmed men, one of them developmentally
disabled, and wounded four other unarmed civilians. The police then allegedly orchestrated a cover-up to
deny what had happened. Some of those involved were tried by the state, but a mistrial was ordered. The federal government took over the prosecution, dubbed in local media as the Danziger Bridge Case and, according
to the Fifth Circuit United States Court of Appeals, also bungled it.
At the conclusion of the federal Danziger Bridge Case, five former police officers were convicted of
serious crimes and received lengthy sentences. Those sentences were later vacated by United States District
Judge Kurt D. Engelhardt as a result of prosecutorial misconduct and each defendant was granted a new trial.
The government appealed the decision and the Fifth Circuit, over a dissent, affirmed the earlier ruling in
United States v. Kenneth Bowen, et al., 2015 BL 265824, No. 13-31078 (5th Cir., August 18, 2015).
According to the appellate court, the reasons for granting a new trial were novel and extraordinary.
No less than three high-ranking federal prosecutors were known to have acted as trolls, posting anonymous
online comments on various news media outlets throughout the duration of the case. On appeal, the government made no attempt to justify the prosecutors’ ethical lapses, which the trial court described as having
created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The majority opinion provided that:
Like the district court, we are well aware of our duty normally to affirm convictions that are
tainted only by harmless error. In this extraordinary case, however, harmless error cannot even
be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated
by the cumulative effect of the additional irregularities found by the district court. We conclude
that the grant of a new trial was not an abuse of the district court’s discretion.
According to the majority, the district court was led on a “legal odyssey” by the government, a journey that began in March 2012, when another target of a federal investigation in New Orleans discovered that a
high-ranking Assistant United States Attorney, Senior Trial Counsel Salvador “Sal” Perricone, had been posting comments to Nola.com under multiple assumed names, the most common of which was “HenryL.Menken_1951”. Perricone’s comments frequently involved other matters pending in the United States Attorney’s
Office and were inflammatory, highly opinionated, and pro-prosecution. Perricone’s remarks were soon also
tied to the Danziger Bridge prosecutions and were shown to have begun well before the indictments and continued through the course of the federal trial. He castigated defendants and their lawyers and repeatedly chastised the NOPD as a fish “rotten from the head down.”
Within days of the revelation that Perricone was an active troll, he resigned as an AUSA. United
States Attorney Jim Letten issued a press release attempting to confine any online misconduct to Perricone
alone.
Prompted by the revelation of Perricone’s comments, the defendant police officers in the Danziger
Bridge case moved for a new trial. At a hearing on the motion before Judge Engelhardt, Jim Letten, flanked by
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 5
his First Assistant and Chief of the Office’s Criminal Division Jan Mann, promised as “gospel truth” that no one
else had commented on stories related to pending cases.
It turns out, however, that Jan Mann had also been an active troll, generally using the moniker “eweman” (Mann had successfully prosecuted former Louisiana Governor Edwin W. Edwards for racketeering and
fraud in 2000). In addition, another Justice Department lawyer, a member of the government’s taint team in
the Danziger Bridge investigations and prosecutions, Karla Dobinski, was also an active troll.
Because he was faced with overwhelming evidence of ethics violations, Engelhardt ordered new trials. On appeal, the government said that the district judge erred because no prejudice had been established.
The Fifth Circuit rejected that argument, holding that the online commenting, which breached all standards of
prosecutorial ethics, gave the government a surreptitious advantage in influencing public opinion, the venire
panel, and the trial itself. Alternatively, even if a finding of prejudice was required, the district court did not
err in finding that the government’s misconduct in the prosecution prejudiced the defendants. Prejudice turns
on the extent to which particular misconduct contributes to a guilty verdict.
Perricone’s trolling was viewed by him to be a “public service” designed, among other things, to
influence the community and put pressure on the various defendants who were being pursued by the Justice
Department. Dobinski also characterized her encouragement of other commenters about the ongoing trial as
a public service. The district court was unable to capture the extent of prejudice during jury selection or trial
because the tainted source of the comments had not yet been revealed. On reviewing jury questionnaires for
the new trial motion, however, the district court found that seven of twelve seated jurors had visited the Nola.
com website in the months preceding trial. Further, according to the district court, jurors who visited that
website appeared to have a lower opinion of NOPD officers’ honesty. In declining to disturb the trial judge’s
ruling, the majority noted:
Most pernicious, these attorneys’ online comments knowingly contributed to the mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse. These prosecutors created an air of bullying against the defendants whose rights they, especially Dobinski,
were sworn to respect. That they were several among dozens of commenters, some of whom may
have disagreed with their views, does not dissipate the effect of this online cyberbullying. Just as
a mob protesting outside the courthouse has the potential to intimidate parties and witnesses,
so do streams of adverse online comments...Preventing mob justice is precisely the goal of prosecutorial ethical constraints. The government here should not be able to shelter under a banner
of “no prejudice proved” while the prosecutors acted no better than, and indeed tried to inflame,
the public.
The Fifth Circuit in Bowen has to be distinguished from an earlier decision, United States v. Gregory
McRae, 2015 BL 240239 (5th Cir. July 28, 2015). There, the Fifth Circuit denied a new trial request by a former
New Orleans police officer convicted of different crimes in the wake of Hurricane Katrina. In McRae, the Fifth
Circuit found no actual or presumed prejudice attending online troll postings about the case by Sal Perricone.
In Bowen, the Fifth Circuit distinguished the McCrae opinion for two basic reasons. First, and most
important, the defendant in McRae had argued only that “the court should presume prejudice where deliberate and egregious government misuse of the media is combined with extensive pretrial publicity adverse to the
defendant.” Second, unlike the facts in Bowen, the McRae court was not tasked with attempting to uncover the
extent of press leaks or government online commenting, nor was it obstructed in doing so by government delays,
nor was there cumulative evidence of high-handed prosecutorial tactics, nor was there evidence that members of
the jury may have been exposed to the online commenting before the trial, nor were the court’s ultimate conclusions founded in grave uncertainty about the extent of government misconduct or the impact on the trial.
6 ■ Toxic Torts and Environmental Law ■ March 2016
Both the McRae and Bowen decisions share an important characteristic: each opinion affirms the
trial court’s exercise of its discretion to determine whether the “interest of justice” demands a new trial under
Rule 33. See United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004) (appellate review of district courts Rule
33 decision “is necessarily deferential to the trial court”). The steady trickle of troubling revelations about the
ongoing misconduct in Bowen undermined “confidence in the jury verdict” even without an explicit connection between the comments and the jury, or between the prosecutors and the case team, that McRae viewed
as indicative of prejudice.
The following ethics rules are relevant to the trolling scenario:
1. Rule 8.4: Misconduct
Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:
***
(d) engage in conduct that is prejudicial to the administration of justice.
2. Rule 3.6: Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
3. Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to
carry out the representation…
II.Cyber-Blitzing
Louisiana lawyer Joyce Nanine McCool was disbarred for engaging in an emerging misconduct regulatory trend: cyber-blitzing. Cyber-blitzing involves a lawyer who orchestrates an internet campaign of vilification against judges or other lawyers who might take a position in opposition to the lawyer. The phrase
cyber-blitzing has its genesis with the Louisiana Supreme Court’s written opinion disbarring her. In re Joyce
Nanine McCool, No. 2015-B-0284 (Louisiana June 30, 2015).
The Louisiana Attorney Disciplinary Board initially recommended that McCool, a Mandeville, Louisiana practitioner, be suspended for one year plus one day for cyber-blitzing activities taken on behalf of a mother,
Raven Skye Boyd Maurer, who was alleging child abuse by the father of Maurer’s two daughters in a bitter child
custody and visitation battle. McCool used Twitter and other social media to publish misleading and inflammatory statements about two judges presiding over the custody matters, one from Louisiana and one from
Mississippi, in order to promote her cause and to try to influence those judges in pending litigation. A website
promoting an online petition that was to be directed to the judges contained sealed information about the cases.
McCool claimed that the online petition was the result of a “group brainstorming session” she
attended with her client and others. The group met at McCool’s home or office where they typed the petition
and uploaded it to the website. The online petition read, in relevant part:
Please sign the petition, circulate it to all of your friends and families and call Judge
Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 7
15 to ask why they won‘t follow the law and protect these children. Let them know you‘re
watching and expect them to do their job and most of all, make sure these precious little
girls are safe!
McCool provided contact information for the two judges and also the Louisiana Supreme Court.
McCool also posted several tweets, including this one:
GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to
look at it? Sign this petition.
One of the judges targeted in the social media campaign, the jurist from Mississippi, had inherited the
case involving child sex-abuse allegations from a prior judge who died. The other targeted judge, from Louisiana, was asked to consider a petition to adopt the children by the mother’s new husband. The Mississippi judge
who first heard the sex-abuse claim appointed a guardian ad litem, who found no merit to the sex-abuse allegations. The mother later raised new sex-abuse claims. The online petition alleged that the Mississippi judge
refused to listen to evidence on audio recordings during an August 2011 hearing when, in reality, the recordings were not offered into evidence. And the petition accused the Louisiana judge of refusing to hear evidence,
when in reality she stayed the case in deference to the Mississippi proceedings. According to the disciplinary
board, McCool “by her own admission was unhappy with the decisions rendered in the matters she was litigating…After her legal procedural options were exhausted, she decided to launch a social media campaign to
influence the presiding judges. Consequently, respondent knowingly, if not intentionally, spearheaded a social
media blitz in an attempt to influence the judiciary.” The disciplinary board said discipline for similar false and
misleading statements typically ranged from six months to one year, but noted a “troubling fact” that distinguished McCool’s conduct—she used the Internet and social media to facilitate it. “Consequently, the offending
language remains present and accessible on the Internet today,” the board said. “Furthermore, respondent has
expressed no remorse for her conduct claiming instead it is protected free speech.”
McCool told the ABA Journal (posted Feb. 17, 2015 by Debra Cassens Weiss at www.abajournal.
com) in an e-mail that she disagreed with the initial recommendation. “I don’t believe the recommendation
does anything to protect the profession or make it more ‘honorable,’” McCool said. “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. “At the center of this disciplinary action is
a mother who was deprived of justice and two children who were not protected because the judges refused to
abide by the law. It is not an isolated case but what it makes it notable is that I, as this mother’s attorney, was
willing to stand up to two judges who ignored the law…I thought that was what our oath demanded of us and
it is why I became an attorney…I have no interest in practicing law in a profession that demands absolute deference to an individual, rather than the law.”
The suspension recommendation went before the Louisiana Supreme Court for review and the Court
concluded that McCool had used the internet and social media to solicit and encourage others to make direct,
ex parte contact with two trial judges and the Supreme Court in an effort to influence decisions in sealed,
pending domestic litigations. Further, although she was not directly responsible for the ‘delivery’ of the signed
petitions to the relevant courthouses, McCool, “by signing the petition—lent her voice to the cause—along
with the rest of the signatories, making the petition her own and, in turn, communicating directly to the
judges and this Court, in its entirety…” The Court also found that her online posting and twitter feeds were littered with misrepresentations and outright false statements.
McCool argued before the state high court that the speech at issue was protected by the First Amendment. The Court disagreed and took “strong exception” to her artful attempt to use the First Amendment as a
shield against her ethics violations. The Court noted:
8 ■ Toxic Torts and Environmental Law ■ March 2016
The appropriate method for challenging a judge‘s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz
to influence the judges‘ and this Court‘s rulings in pending matters and then claiming immunity from discipline through the First Amendment. Rather than protected speech, the evidence
clearly and convincingly shows respondent‘s online and social media campaign was nothing
more than an orchestrated effort to inflame the public sensibility for the sole purpose of influencing this Court and the judges presiding over the pending litigation. As such it most assuredly
threatened the independence and integrity of the courts in the underlying sealed domestic matters. Moreover, the testimony irrefutably establishes both presiding judges perceived the campaign as a threat to their personal security and as an attempt to intimidate and harass them into
ruling as the petitioners wanted.
See also, In re JoAnne Marie Denison, M.R. 27522, 2013PR00001 (Ill. Sept. 21, 2015). Lawyer suspended
three years and until further order of the Illinois Supreme Court for engaging in a vilification campaign
against judges, court appointed guardians ad litem, and others, through the use of a blog.
The following ethics rules are relevant to the McCool cyber-blitzing scenario:
1. Rule 3.5: Impartiality and Decorum of the Tribunal
A lawyer shall not:
a) seek to influence a judge, juror, prospective juror or other official by means prohibited
by law;
b) communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order;
2. Rule 8.2: Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
III.Texting
Kenneth Kratz is a former District Attorney in Calumet County, Wisconsin. He lost his job as a prosecutor when it was revealed that he sent inappropriate texts to the victim of a domestic abuse case that he was
prosecuting.
In the texts, Kratz asked the woman, “Are you the kind of girl that likes secret contact with an
older married DA . . . the riskier the better?” In another text, Kratz told the woman that she was “beautiful,”
“pretty,” that “I’m the atty. I have the $350,000 house. I have the 6 figure career. You may be the tall, young,
hot nymph, but I am the prize! Start convincing.” Kratz also stated to the woman, “I would not expect you
to be the other woman. I would want you to be so hot and treat me so well that you’d be THE woman. R U
that good?”
Kratz also made inappropriate statements to two Calumet County social workers. In response to one
social worker’s concerns about testifying in a case, Kratz stated, “he won’t c** in your mouth.” Later, Kratz told
the social worker that he wanted the trial to be over because he was leaving on a trip to Las Vegas, where he
could have “big boobed women serve me drinks.” In remarks to another social worker during a court proceeding, Kratz commented on a woman’s “big, beautiful breasts.”
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 9
Kratz entered pleas of no contest to six counts of lawyer disciplinary misconduct and, after argument
and briefing, a Hearing Referee recommended a four month suspension of Kratz’s law license. Calling Kratz’s
conduct “appalling,” the Wisconsin Supreme Court accepted the Referee’s conclusion that Kratz, by seeking
a personal relationship with a domestic abuse victim while serving as a prosecutor of the perpetrator of the
domestic abuse crime, engaged in a concurrent conflict of interest and had harassed the domestic abuse victim on the basis of her sex in violation of Wisconsin SCR 20:8.4(i). The Court further determined that Kratz’s
comments to the social workers constituted “offensive personality” in violation of the attorney’s oath. The
Court assessed full costs on Kratz, noting no “extraordinary circumstances” justified a reduction in costs.
Kratz was suspended for four months. Disciplinary Proceedings against Kenneth Kratz, 2014 WI 31 (Wisconsin June 6, 2014).
As an aside, Kratz was recently featured in the Netflix documentary series, Making a Murderer.
Kratz served as a special prosecutor against Steven Avery, a Wisconsin man who was wrongfully convicted of
rape and spent eighteen years behind bars. As a result of DNA evidence, he was released from prison. After his
release, he was charged with the murder of a woman photographer last seen on Avery family property. Kratz
headed the investigation and prosecution of Avery and another man, Avery’s nephew, in the killing of the photographer. The Netflix series suggested that Kratz and others played a role in framing Avery for the photographer’s killing. After the series aired, Kratz, who is now in private practice, began getting death threats. Further,
in December 2015, BuzzFeed reported that people were flooding Kratz’s Yelp page with scathing reviews.
One example: “Ken Kratz is an incredible prosecutor! When I wanted to get my husband out of the picture I got
the local sheriff ’s department to ‘discover’ “wink wink” a murder on our property. My husband was zeroed in
on in a jiffy! Attorney Kratz was able to put him away for life by skirting the defenses questions and skewing the
concept of reasonable doubt. I’ve got the entire house to myself now! Thanks Ken Kratz! (Five Stars).”
In another texting abuse case, the former State’s Attorney of Rock Island County, Illinois, was disbarred. In re Jeff Terronez, M.R. 26213, 2011PR00085 (Ill. Nov. 20, 2013). While serving as the State’s Attorney, he furnished alcohol to a minor and then lied to police authorities who were investigating the matter. The
minor had been the victim of sexual assault by one of her teachers. After prosecuting the girl’s teacher, Terronez began a personal relationship with the girl that included sending her sexually-charged text messages.
He traded 2,270 text messages with the minor in a three month period. As an example of the sophistication of
his communications, the minor was a cheerleader at her high school and, at one point, sent Terronez a picture
of herself in a cheerleading pose. He texted her: “HaHa!! Hell that pix makes me want to take u to san diego
just so u can display more moves 4 me!!!:*” Later, he wrote: “I’m still amazed by the ‘talent’ displayed by that
pic!! I can’t think straight!!” A few minutes after, Terronez, who was 39-years old at the time, texted: “I might b
fallin in love w u hahaha!!!”
Surreptitious texting between judges and lawyers can lead to sanction even there is no proof that
there were any ex parte discussions about a pending case. The leading decision is Florida Bar v. Ana I. Gardiner, No. SC11-2311 (Fla. June 5, 2014). Omar Loureiro stabbed a 57-year-old Florida man to death in the
victim’s Lighthouse Point home on New Year’s Day, 2001. After the killing, Loureiro fled to Nicaragua. While
there, he was incarcerated for other reasons. After determining Loureiro was jailed in Nicaragua, two Broward County detectives travelled there in 2002 to interrogate him. They began the interrogation by giving him
complete Miranda warnings in Spanish and English, reading from a card. Loureiro admitted to stabbing and
murdering the victim, but contended that it was in self-defense because the victim made aggressive sexual
advances toward him. Loureiro was indicted by a grand jury in 2004 and charged with premeditated murder.
State v. Loureiro, No. 04-15633CF10A (Fla. 17th Cir. Ct.). In January 2005, he was expelled from Nicaragua
and, upon his return to the United States, was arrested for the murder. Shortly after his arrest, he was inter10 ■ Toxic Torts and Environmental Law ■ March 2016
rogated again and gave a video-recorded second confession which was virtually the same as the Nicaraguan
confession.
Veteran Broward County prosecutor Howard Scheinberg was assigned to handle the murder case.
Judge Ana I. Gardner presided over the matter. The State sought the death penalty due to the heinous nature
of crime: the victim had been stabbed several times and there was an incised or slicing-type wound that
reached from the front on the neck to the front of his spine. In addition, the victim’s hands were bruised consistent with defensive wounds. The case proceeded to trial and, on March 27, 2007, the jury found Loureiro
guilty. On August 24, 2007, the same jury recommended the death penalty and Judge Gardiner ordered that
the defendant be executed.
The death sentence was later vacated due to the unique relationship that secretly existed at the time
of the initial sentencing between Loureiro’s chief prosecutor and the judge. Four days before jury returned a
guilty finding, Judge Gardiner and several prosecutors, including Scheinberg, dined at Timpano’s Chop House
and Martini Bar in Ft. Lauderdale. The restaurant meeting with the judge and Scheinberg was apparently accidental. During the course of dinner, the trial was discussed. At some point, the attendees talked about gory
photographs that had been admitted into evidence and spoke about a juror who fainted upon seeing the pictures. After dinner, the Judge, Scheinberg and others retreated to another place, the Blue Martini, for more
drinks. It turns out that, in traveling to the Blue Martini, Scheinberg drove to the bar with one member of his
group who was then a law student. During the drive, the law student raised the possible appearance of impropriety that might arise from the judge and the lead prosecutor in a pending murder trial socializing while the
case was ongoing. Scheinberg was upset by the conversation, and he left the Blue Martini shortly after arriving. After seeing him leave, Gardiner attempted to learn what had so upset Scheinberg and she spoke with
him on the phone several times over the course of that weekend.
The Loureiro trial resumed on Monday, March 26, and Gardiner did not disclose her social interaction with Scheinberg. Subsequently, on March 27, after the jury returned its guilty verdict, Gardiner and
Scheinberg had a lengthy phone conversation, during which Scheinberg told Gardiner about his discussion with the law student on the way to the bar. The referee found that Gardiner assured Scheinberg there
was nothing for him to be concerned about and that she made a “conscious decision” not to disclose or make
known her social interaction and phone calls with Scheinberg. Almost immediately thereafter, Gardiner
and Scheinberg began a “significant personal and emotional relationship” and become friends and confidants. How close was that personal relationship? From March 27, 2007, and August 24, 2007, when the judge
imposed the death penalty, Scheinberg and Gardiner had 1420 different phone or text message communications between them, including 949 cell phone calls and 471 text messages. In particular, on the day before, the
day of, and the day following Gardiner’s actual imposition of the death sentence, she and Scheinberg communicated by phone and text 44 times. There is no indicium that Louriero’s case was ever discussed by the pair
during this period. Nevertheless, Scheinberg never disclosed these many communications to the defense and
the judge said nothing on the record about their relationship.
Later, Loureiro filed a direct appeal from the conviction and, during the course of the appeal, local
media somehow learned about the extent of a close personal relationship between the judge hearing his case
and the prosecutor. When revelations about the nature of the relationship became public, the Broward County
State’s Attorney agreed to appoint a special prosecutor to investigate the matter. Eventually, the State’s Attorney agreed to give Loureiro a new trial to “dispel any public misconception that there was any denial of due
process.” Loureiro was retried, found guilty, and sentenced to a life term of imprisonment. Scheinberg was
later prosecuted by Florida Bar for conduct that was prejudicial to the administration of justice. Eventually,
the Florida Supreme Court suspended him for two years for having had improper ex parte contacts with GardZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 11
ner during Louriero’s trial. The Florida Bar v. Howard Michael Scheinberg, No. SC11-1865 (Fla. June 20,
2013). The Court upheld a hearing referee’s findings of misconduct but rejected a recommendation that he be
suspended for one year. The Court did not issue an order to show cause or otherwise give notice that it was
considering a longer suspension before ruling. In imposing sanction, the Court noted that the communications showed that a close relationship existed between the prosecutor and the judge that brought into question the judge’s impartiality and ultimately required a retrial. Citing Florida Bar v. Mason, 334 So. 2d 1, 6
(Fla. 1976), where an attorney had been suspended for egregious and ongoing ex parte communications with
justices of the Supreme Court regarding a pending case, the Court found that the ex parte communications
between Scheinberg and Gardiner were “fundamentally wrong” and destructive to the entire judicial process.
Even though Scheinberg’s many communications with the judge did not concern the merits of the capital case,
the fact that these communications were not disclosed to the opposing party created an appearance of impropriety and significantly damaged the judicial process. These communications led to an investigation and ultimately caused the defendant’s case to be retried at great expense to the court system and the parties involved,
in addition to the added time and stress of another trial on all the parties. The Court found that the negative
consequences of Scheinberg’s conduct in such an important trial greatly harmed the administration of justice.
After the nature of their relationship was first publicized, the Florida Judicial Qualifications Commission (“JQC”) convened a panel to investigate the matter and determine whether Gardiner engaged in
misconduct. Gardiner appeared before the panel and, in her testimony, she failed to disclose the honest and
true nature of her relationship with Scheinberg and told the JQC that her relationship with Scheinberg was
merely professional. She did not disclose the significant number of personal phone and text communications
they exchanged during the penalty phase of the Loureiro trial. She also did not disclose that her relationship
with Scheinberg continued after the trial and later intensified. Indeed, during the period from March 2008
through August 2008, Gardiner and Scheinberg exchanged more than 3000 phone and text communications.
A hearing referee later found that Gardiner’s testimony during the JQC proceedings was a “deliberate act of
dishonesty and deceitfulness.” At the conclusion of the JQC’s investigation, Gardiner received an admonishment based on the appearance of impropriety that resulted from the judge and lead prosecutor socializing on
one night while a capital first-degree murder trial was ongoing. Later, after the Broward County State’s Attorney hired that special prosecutor to conduct an investigation. Gardiner appeared for a deposition and, during
the course of her testimony, acknowledged for the first time her ongoing emotional relationship with Scheinberg. Gardiner resigned from the bench in 2010. Later, the Florida Bar charged her with lying to the JQC.
After a hearing, a referee found that she had failed to be candid with the JQC and recommended that she be
suspended from the practice of law for one year. The high court reviewed the findings and ordered Gardner
disbarred. The Court ruled that, in considering Gardiner’s dishonest conduct during the trial and in her subsequent testimony before the JQC and taking into account the impact of her actions had on the administration
of justice in a death penalty case, disbarment was the only appropriate sanction.
The following ethics rules are relevant to the texting scenarios noted above:
1. Rule 1.7: Conflict of Interest: Current Clients
(a) …[A] lawyer shall not represent a client if the representation involves a concurrent conflict
of interest. A concurrent conflict of interest exists if…
2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
2. Rule 4.4: Respect for Rights of Third Persons
12 ■ Toxic Torts and Environmental Law ■ March 2016
(a) In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
3. Rule 8.4: Misconduct
Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:
***
(d) engage in conduct that is prejudicial to the administration of justice.
IV.Sexting
Maryland lawyer Jeffrey Marcalus sexted with a pro se female opposing party in a litigation matter.
Specifically, he requested photographs of the woman in a bathing suit, inquired if she would be willing to use
“toys” with a “sugar daddy,” and informed her that he usually woke up with an erection. Marcalus informed
the woman that a sugar daddy would pay to watch her masturbate. the Maryland Court of Appeals again
had to dig into the dictionary, defining sexting as, “the sending of sexually explicit messages by cell phone”
and Sugar Daddy as “a rich, older man who gives money, gifts, etc., to someone (such as a young woman) in
exchange for sex, friendship, etc.” Marcalus was disbarred. Attorney Grievance Commission of Maryland v.
Jeffrey S. Marcalus, AG No. 64 (Md. March 27, 2015). Marcalus is no stranger to lawyer discipline. He was
previously suspended for sexting with a client (Attorney Grievance Comm’n v. Marcalus, 401 Md. 496, 933
A.2d 382 (2007)) and later suspended again for giving painkillers to a woman in exchange for a sexual act
(Attorney Grievance Commission of Maryland v. Jeffrey S. Marcalus, Misc. Docket AG No. 2 (Maryland,
September Term, 2009)).
Ohio lawyer William Detweiler, was paid a $3,500 retainer to handle a client’s divorce. After filing
the divorce complaint, Detweiler began to send the client text messages of a personal nature. His initial texts
appeared to be harmless inquiries about the client’s well-being and Cleveland Browns football. They later
included social invitations, which progressed into comments of a sexual nature. Detweiler texted the client
about her clothing and how it made him feel sexually, and indicated that he wanted to have sex with her. He
continued “sexting” the client and later admitted that he sent her a nude picture of his lower body in a state of
arousal. The client did not initially make her discomfort known to Detweiler, but following a text message in
which he asked her to have oral sex with him, she sent him a text message rejecting his solicitation. The client
later told disciplinary authorities that, when Detweiler sent her his nude photograph, she had already spent
$10,000 in fees and expenses and could not afford to retain new counsel. Therefore, she continued his representation and tried to avoid his sexual advances until she voluntarily dismissed her complaint for divorce after
temporarily reconciling with her husband. At no time did the client have sex with Detweiler or even meet with
him socially. Detweiler testified at his lawyer disciplinary hearing that he had obtained marital counseling, but
had not obtained any individual counseling to address the issues underlying his inappropriate conduct toward
female clients. A hearing panel expressed concern that his efforts to strengthen his wife’s trust in him by providing her with the passwords to his personal and business e-mail accounts had the potential to expose client
confidences in violation of Prof.Cond.R. 1.6. Detweiler was suspended for one year. Disciplinary Counsel v.
William Jeffrey Detweiler, 135 Ohio St.3d 447, 2013-Ohio-1747 (Ohio May 2, 3013).
Sexting sanctions are not only limited to the lawyer disciplinary process. For example, Wade Hampton McCree, Jr., served as a Wayne County Michigan trial judge. In 2012, he was reprimanded by the Michigan
Supreme Court for sending a shirtless photograph of himself to the cell phone of a Wayne County SherZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 13
iff ’s Office employee. The employee kept a copy of the photograph to motivate her to improve her workouts
and eating habits, but her husband later discovered it on her phone and provided a copy to WJBK-TV Fox 2
reporter Charlie LeDuff. When asked by LeDuff about the propriety of sending such as item, the judge replied,
on camera, that there was “no shame in my game.”
The Michigan Supreme Court held that McCree had conducted himself in a flippant manner and did
not give the LeDuff interview the seriousness that he should have. As a result, according to the Court, “[H]e
brought shame and obloquy to the judiciary...The interview, and the digital image, spread rapidly around the
internet and became the subject of jokes and ridicule.” McCree argued that there was nothing sexual about
the photograph, remarking that the picture showed nothing more than how people saw him when he swam at
the YMCA, but he admitted to a lapse in judgment in sending the item. As a result of this lapse in judgment,
he was publicly reprimanded. In re Hon. Wade H. McCree, SC: 145895 (Mich. Oct. 24, 2012). Since the reprimand, things got far more problematic for the judge. He was removed from the bench for engaging in a torrid
affair with a litigant with a case on his docket. In re Hon. Wade H. McCree, Docket No. 146826 (Mich. March
26, 2014).
The following ethics rules are relevant to the lawyer sexting scenarios noted above:
1. Rule 1.7: Conflict of Interest: Current Clients
(a)…[A] lawyer shall not represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if…
2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
V.Flashing
William Park was a partner in Ladas & Parry LLP, an international intellectual property law firm with
a Chicago office. He began working there in 2002 and became a partner in 2008. On at least five occasions
during 2010, he downloaded at least 75,000 electronic files from Ladas’ computer network onto his own external memory devices. Those documents included Ladas’ client files, a client directory, the firm’s foreign associate directory, and other electronic files, such as forms and templates.
At about the same time that he was downloading firm materials onto flash drives, he incorporated
William Park & Associates, Ltd., an Illinois law firm through which he intended to engage in the practice of
patent law. In addition, while still a Ladas partner, he undertook efforts to set up his new firm, including leasing office space and creating firm letterhead.
In the Spring of 2010 three Ladas partners confronted him about his intention to open his own firm
in competition with Ladas and requested that he immediately leave the Ladas firm’s office. Thereafter, the
Ladas firm began the process of terminating his employment. On May 25, 2010, through counsel, he sent
Ladas a letter stating that he had resigned effective May 14, 2010. On May 17, 2010, counsel for Ladas sent
Park a litigation-hold letter notifying him that Ladas planned to file a lawsuit against him and that he should
not destroy, modify or discard any electronic or hard copy records or evidence relating to, among other things,
his alleged misappropriation of trade secrets and his alleged solicitation of Ladas clients. He received the letter the next day. Suit was filed against him in state court alleging that he had breached his fiduciary duties to
the firm and had misappropriated trade secrets by downloading Ladas documents and soliciting Ladas clients
prior to leaving the firm. Ladas sought a temporary restraining order.
14 ■ Toxic Torts and Environmental Law ■ March 2016
On May 21, 25, 26 and 27, 2010, Park deleted ninety electronic files from various external memory
devices onto which he had downloaded files from Ladas’ computer network. He caused 88 of the 90 deleted
files to be overwritten and irretrievable. He deliberately deleted electronic files from his external memory
devices because he believed the files were damaging to his defense in Ladas’ case against him. Later, a trial
judge entered an order granting Ladas’ motion for a TRO. Among other things, the TRO barred Park from
accessing, copying, summarizing, forwarding, downloading, or using the electronic files that he had downloaded from Ladas; ordered him to surrender all external memory devices to which he had downloaded Ladas
files; and prohibited him from soliciting Ladas clients. Park learned of that order shortly thereafter.
In compliance with the Court’s order, Park surrendered seven memory devices to a third party neutral approved by the court to receive the devices. Thereafter, a computer forensic specialist conducted a forensic examination of the external memory devices and discovered Park’s deletion of the 90 files. After the trial
judge learned of the destruction of records, she ordered Park to pay Ladas $58,819.74 for fees and costs, and
entered a permanent injunction prohibiting Park from accessing, copying, summarizing, forwarding, downloading, or in any way using any files that he had downloaded from Ladas. Finally, while at the Ladas firm,
he also neglected eight patent applications. Park was suspended for one year. In re Woochoon William Park,
M.R. 25897, 2012PR00027 (Ill. March 15, 2013).
Such misuse of propriety information has also been identified in a corporate context. Charles Cohen,
a patent attorney, was employed at Eli Lilly and Company from 1999 through 2009. In 2009, as he prepared
to leave his employment, he copied Lilly corporate documents through and forms onto a disc. A Lilly administrative assistant made a copy of the disc and gave both discs to Cohen. The information on the discs was
property of Lilly and was considered by Lilly to be confidential. Cohen took the data from Lilly’s premises and
retained it, knowing that he was not authorized to possess or control the data after he left Lilly. Eventually, the
Indiana disciplinary authority was alerted to the unauthorized taking of corporate information and a formal
proceeding was initiated against Cohen. Eventually, the Indiana Supreme Court suspended him for ninety
days. In the Matter of Charles E. Cohen, 49S00-1304-DI-282 (Ind. Oct. 20, 2014).
A somewhat related topic involves a client who delivers a flash drive to an attorney that the client has
received from an unknown or mysterious source. Although not a lawyer disciplinary case, a decision of the
Florida District Court of Appeal, 5th District, is instructive. In Desiree Castellano v. Marc Winthrop, 27 So.3d
134 (Fla. Jan. 29, 2010), the 5th District affirmed the disqualification of a mother’s law firm in a paternity and
child custody matter.
The Castellano case commenced in 1999 when Desiree filed a petition to establish paternity against
Marc. In 2002, a modified final judgment of paternity was entered. However, the parties continued over the
years to engage in protracted and often bitter litigation particularly as to the issues of child custody and medical treatment of the child. In February 2009, the mother obtained a USB flash drive that belonged to the
father. The drive was obtained without the knowledge or consent of the father. After reviewing the USB flash
drive, Desiree retained a Florida law firm and tendered the item to them.
After receiving the flash drive from Desiree, the firm spent over 100 hours reviewing the flash drive.
Subsequently, the firm filed a “Petition to Vacate Stipulated Final Order of Modification Due to Father’s
Repeated Intentional Fraud Upon the Court.” The Petition to Vacate was based on information obtained from
the flash drive.
After reviewing the petition, Marc and his lawyers correctly divined that Desiree had somehow
obtained the father’s USB drive and demanded its immediate return. The firm refused to return the USB drive
and, instead, filed its contents in the court file and also facilitated delivery of the USB drive to law enforce-
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 15
ment. Marc then filed an emergency motion seeking the return of the USB drive, disqualification of the mother’s counsel, and the imposition of other sanctions against the mother.
A judge conducted a lengthy evidentiary hearing on the emergency motion and concluded that the
drive was illegally obtained and that the drive contained the electronic equivalent of thousands of pages of
documents and communications, including attorney-client communications between the father and his counsel, litigation strategy notes between the father and his lawyer, work product and mental impressions of the
father’s attorneys concerning pending litigation issues, including detailed outlines for witness questioning and
potential impeachment evidence to be used in future hearings, confidential medical information of the father
and his new wife, confidential financial information of the Father’s current wife and her family, and confidential business information of the Father and his clients. The judge ruled that, despite receiving the USB drive
“under very, very suspicious circumstances,” the firm spent over 100 hours reviewing its contents “although it
was apparent within moments of inspection that it belonged to the father and contained attorney-client communications with the Father’s current counsel, as well as a complete history and chronology of strategy, work
product, and confidential communications spanning the near decade-long period of this litigation.” Further,
the judge concluded that, based upon a preliminary review of the father’s confidential documents, the mother
failed to establish that any crime or fraud was being perpetrated, planned, or carried out by the father. The
mother’s law firm was disqualified because it had obtained an “informational advantage.”
Desiree appealed the disqualification order and the appellate court cited Florida Ethics Opinion
07-1 (Sept. 7, 2007) “for the benefit of other attorneys facing a similar dilemma.” That opinion provides that a
lawyer whose client has provided the lawyer with documents that were wrongfully obtained by the client may
need to consult with a criminal defense lawyer to determine if the client has committed a crime. The lawyer
must advise the client that the materials cannot be retained, reviewed or used without informing the opposing party that the inquiring attorney and client have the documents at issue. If the client refuses to consent to
disclosure, the inquiring attorney must withdraw from the representation. The court affirmed the special relief
ordered in the case: the firm had to remove all the information from the firm’s and wife’s computer and have
a third party inspect to ensure the information has been removed at the firm’s expense, to provide a list of all
persons who had access to the information, and to indemnify the husband if husband had any damages from
improper use of the information.
In reviewing Castellano, two similar factual scenarios must be distinguished. First, a lawyer may
receive documents that have been inadvertently disclosed by an opposing party, usually during the course of
discovery in litigation. In such an instance, ABA Model Rule 4.4(b) applies. Second, a lawyer may come into
possession of documents that have been improperly or unlawfully obtained, typically by the lawyer’s client,
as in Castellano. The ethical duties and responsibilities of the lawyer in both situations are related, but
identical. In the second instance, different ethics guidelines must be consulted. For example, Rules 1.2(d),
1.7, 4.4(a), and 8.4(d) all may come into play. In either factual situation, however, at the very least, an opposing party must be alert to the source of any material received from a client or on a client’s behalf.
The following ethics rules are relevant to the lawyer flashing scenarios noted above:
1. Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out
the representation…
2. Rule 8.4: Misconduct
Maintaining the Integrity of the Profession
16 ■ Toxic Torts and Environmental Law ■ March 2016
It is professional misconduct for a lawyer to:
***
(a) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects;
(b) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
3. Rule 4.4: Respect for Rights of Third Persons
***
(b) A lawyer who receives a document or electronically stored information relating to
the representation of the lawyer’s client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent shall promptly notify
the sender.
VI.Snooping
How far does a lawyer go in investigating a juror’s or a judge’s presence on the internet? There is a
very fine ethics opinion, ABA Formal Opinion 466 (April 24, 2015), discussing the extent that a lawyer can
take in researching the background of prospective or current triers of fact. The opinion holds that, unless
limited by law or court order, a lawyer may review a juror’s or potential juror’s internet presence, which may
include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror. Further, the fact that a juror or a potential
juror may become aware that a lawyer is reviewing his internet presence when a network setting notifies the
juror of such does not constitute a communication from the lawyer in violation of ethics rules. The opinion
addresses three levels of lawyer review of a trier of facts internet presence:
1. Passive lawyer review of a juror’s website or electronic social media (“ESM”) that is available
without making an access request where the juror is unaware that a website or ESM has been
reviewed;
2. Active lawyer review where the lawyer requests access to the juror’s ESM; and
3. Passive lawyer review where the juror becomes aware through a website or ESM feature of the
identity of the viewer.
There is an earlier state ethics opinion relevant to the topic, Association of the Bar of the City of New
York, Opinion 2012-2. That opinion holds that a lawyer may research a potential or sitting juror using publicly
available ESM if no communication with the juror occurs whether through a “friend” or connection request with
the juror or an automated notification from the social media service that the juror’s profile was viewed or followed. If the lawyer learns of juror misconduct through social media research, the lawyer must promptly notify
the court. After the jury has been discharged, the lawyer may use social media to communicate with the jurors.
Although time constraints do not permit a more expansive exposition on the topic, lawyers may
generally not engage in conduct involving dissembling in order to procure entry into an individual’s ESM.
See e.g., Philadelphia Bar Ass’n Professional Guidance Comm., Op. 2009-02 (March, 2009). There, the bar
opined that employing a third party to befriend an adversarial witness through an online social network so as
to obtain access to the witness’ personal pages would constitute an unethical deception. The presenting facts
involved the concealment of a highly material fact that could lead to procuring information that could later
be used to impeach the witness. In the problem considered by the bar, a lawyer learned during the course of
deposing the 18-year-old witness that the witness maintained Facebook and MySpace accounts. The lawyer
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 17
visited the networking sites, but found that access was blocked unless the witness granted permission through
“friending,” a protocol where an outsider asks to be included within a circle of friends who have access to a
private networking page. Because the lawyer believed that the witness’s personal pages contained information
relevant to the litigation, he asked the bar whether his investigator could surreptitiously “friend” the witness
and thereby obtain access to her personal pages. He further inquired whether it would be ethical to use information gleaned through this procedure in the upcoming litigation.
Finally, there are inherent dangers in conducting internet background checks. Although not dealing
with prospective jurors, the decision in Akron Bar Assn. v. Betty Groner, 131 Ohio St.3d 194, 2012-Ohio-222
(Ohio Jan. 25, 2012) is instructive. Groner was suspended for six months, with the entire suspension stayed
on the condition that she commit no further misconduct. She was retained by a man named Zachary Hopson, a Texas resident, to oppose the application of his sister, Brenda Joyce Fowler, to serve as fiduciary of their
deceased mother’s estate. Groner entered an appearance in the Probate Court of Summit County and she filed
a motion to recognize Hopson as the named executor in the will. The probate court issued a notice of a hearing for September 8, 2009. When Groner arrived at court that day, she was told there was no oral hearing;
instead, she was advised that September 8th was a deadline to submit written objections to the appointment of
Fowler as administrator. She returned to her office to prepare objections for filing that day.
Groner accessed an internet provider that performs background reports for a fee and she also
searched a government website that provides, also for a fee, case and docket information from federal courts.
Groner obtained a 16-page report from Intelius.com that disclosed that one Brenda Joyce Fowler of New
Philadelphia, Ohio, had filed for bankruptcy and had a felony record. The government website confirmed the
bankruptcy. Groner admitted that she was panicked that day and did not spend sufficient time reviewing the
record, but she testified that, at the time, she believed that the allegations in the multipage report pertained to
her client’s sister, and she did not verify the information.
Using the information she had obtained, Groner next contacted a bonding agency to inquire whether
a convicted felon with a bankruptcy record could obtain a probate bond. The agency’s representative told
Groner that such an applicant would not be approved. Hearing this, Groner prepared and filed written objections to Fowler serving as a fiduciary because Fowler, as a bankrupt felon, could not obtain a bond. When
Fowler received a copy of the objections from her attorney, she discovered that the pleading contained false
information and accusations about her. It turned out that the information that Groner had obtained referred
to people who were not the same Brenda Joyce Fowler who was involved in the probate case. In fact, the Intelius report referred to 19 different individuals named Brenda J. Fowler or something similar and described
persons of different ages, races, locations, and sex. The report disclosed criminal records from states other
than Ohio, including Texas, Florida, and Alaska.
Within a few days of filing the objections, and after having conversations with opposing counsel and
her client, Groner began to suspect that the information she had submitted about Fowler was not correct.
Groner subsequently filed a motion for mediation in which she amended the objections to remove most of the
allegations made about Fowler.
The following ethics rules are relevant to the snooping discussion noted above:
1. Rule 4.2: Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by
law or a court order.
18 ■ Toxic Torts and Environmental Law ■ March 2016
2. Rule 3.5: Impartiality & Decorum of the Tribunal
A lawyer shall not:
***
(a) communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order;
3. Rule 4.4: Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.
4. Rule 3.1: Meritorious Clams and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of existing law. A lawyer
for the defendant in a criminal proceeding, or the respondent in a proceeding that could
result in incarceration, may nevertheless so defend the proceeding as to require that every
element of the case be established.
3.3
5. Rule 3.3: Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
VII.Spoliation
After a three-day trial, a Virginia jury awarded widower Isaiah Lester $6,227,000 plus interest on
the wrongful death action relating to his late wife, Jessica Lynn, and $2,350,000 plus interest on his own
personal injury action. Defendants Allied Concrete filed multiple post-trial motions, including motions for
sanctions against Lester and his lead attorney on the case, Matthew B. Murray,, a former president of the Virginia Trial Lawyers Association, arguing that Lester conspired with Murray to intentionally and improperly
destroy evidence related to Lester’s Facebook account and provide false information and testimony related to
Lester’s Facebook page, his prior use of anti-depressants, his medical history, and the spoliation of Facebook
evidence. Further, Allied Concrete contended that Murray engaged in deception, misconduct, and spoliation
related to Lester’s Facebook account. Allied Concrete also filed a motion seeking, alternatively, the dismissal
of Lester’s claims, a new trial on liability and damages, a new trial on damages only, or a remittitur order,
arguing that the misconduct of Lester and Murray precluded an impartial trial and verdict and resulted in an
excessive verdict.
In response to the motions, a Virginia Circuit Court judge reduced by fifty-percent the jury verdict
and imposed $722,000 in sanctions. Murray was ordered to pay $542,000 and his conduct was referred to the
Virginia State Bar Association; $180,000 in sanctions was imposed on Lester. The basis for the court’s sanction order was an “extensive pattern of deceptive and obstructionist conduct of Murray and Lester…”
The case had its genesis in a horrific vehicular accident. Jessica and Isaiah were driving on a curving, two-lane mountain road in Albemarle County, Virginia, when an Allied Concrete cement mixer travelling in the opposite direction tipped onto two wheels while rounding a curve and overturned on top of the
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 19
Lester’s car. Jessica suffered a skull fracture and died eight days later. Her medical expenses totaled more than
$100,000. Isaiah suffered superficial injuries, became depressed, and developed severe PTSD. Although his
condition improved after years of therapy and medication, the PTSD is considered to be chronic. His special
damages totaled $23,000. The truck driver pleaded guilty to involuntary manslaughter, served a 30-day jail
term, and his commercial driver’s license was permanently revoked.
In 2008, the widower filed a wrongful death claim. The following March, Murray received a request
from Allied Concrete’s lawyers seeking, in relevant part, to discover the contents of plaintiff ’s Facebook
account. At that time, plaintiff ’s Facebook account contained a photo of Isaiah wearing an “I ♥ Hot Moms”
t-shirt and holding a beer can with other young adults. According to later deposition testimony, plaintiff ’s
counsel instructed a paralegal to tell plaintiff to “clean up” the Facebook page because “we don’t want blowups
of this stuff at trial.” Thereafter, plaintiff ’s counsel allegedly came up with a scheme to take down or deactivate
plaintiff ’s Facebook account so that he could respond to defendant’s discovery request by stating that plaintiff
had no Facebook page on the date the discovery was signed. When defense counsel filed a motion to compel,
plaintiff ’s counsel instructed plaintiff to reactivate the account. Plaintiff denied deactivating the account during a later deposition. Murray was also accused of withholding an e-mail from the paralegal instructing plaintiff to “clean up” his Facebook page. Finally, Murray allegedly claimed, falsely, after trial, that the failure to
produce the e-mail was the paralegal’s mistake.
Allied appealed the rulings on the trial judge’s post-trial motion and sought a new trial. On appeal,
the Virginia Supreme Court ruled that Allied Concrete received a fair trial on the merits. The Court noted that
there was ample evidence that the trial court mitigated any prejudice Allied Concrete may have suffered as a
result of the misconduct of both Lester and Murray. Furthermore, the record demonstrated that the trial court
carefully considered this misconduct in denying Allied Concrete’s motion for a new trial. Accordingly, it could
be said that the trial court abused its discretion in refusing to grant a retrial.
As to Murray, he was suspended for five years for his role in the spoliation. In re Michael B. Murray,
Nos. 11-070-088405, 11-070-088422 (Virginia, July 17, 2013).
Concerning the spoliation aspects of advising a client to remove certain social media information, see
New York County Lawyers Ass’n Comm. on Professional Ethics, Op. 745. (July 2, 2013) (Lawyer may advise
client to remove online information that damages the client’s position in a civil matter, if such advice doesn’t
violate ethics rules on fairness to others or substantive law governing spoliation).
There is a growing body of civil case law dealing with litigants who failed to comply with a duty
to preserve Facebook account information at the time of any deactivation or deletion, thus resulting in an
adverse inference, or “spoliation instruction,” permitting a jury to infer that the fact that a document was
not produced or destroyed is “evidence that the party that has prevented production did so out of the wellfounded fear that the contents would harm him.” See generally, Frank Gatto v. United Air Lines, Inc., Allied
Aviation Services, Inc., and John Does 1-10, 10-cv-1090-ES-SCM (D.N.J. March 25, 2013).
The following ethics rule is relevant to the issues discussed above:
1. Rule 3.4: Fairness to Opposing Party and Counsel
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act;
20 ■ Toxic Torts and Environmental Law ■ March 2016
VIII. Tweeting
A Kansas appeals court attorney was fired, and then informally admonished by a lawyer disciplinary
hearing panel, after using offensive language in a tweet about the state’s former Attorney General, Phillip D.
“Phill” Kline. In re Sarah Peterson Herr, 2012 SC 94 (Kansas January 13, 2014).
While serving as a research attorney for the Kansas Court of Appeals, Herr posted derogatory comments about Kline to Twitter while Kline was appearing as a Respondent before the Kansas Supreme Court in
his own lawyer disciplinary matter. The Kansas Supreme Court was considering whether Kline’s law license
should be indefinitely suspended for misconduct during Kline’s investigations of abortion providers.
Herr’s Twitter comments began appearing around 10 a.m., the same time that Kline was standing
before the seven-member court answering questions about his conduct while he was Attorney General and
Johnson County District Attorney. The Kline case was being broadcast live time over the Kansas judicial webpage. During oral argument, Kline’s lawyers told the Kansas Supreme Court that he never lied or intentionally
misled authorities as he conducted an extensive investigation of abortion providers during his term in office.
Earlier, a panel of the Kansas Board for Discipline of Attorneys recommended that Kline’s law license be suspended indefinitely. The Panel held that Kline had repeatedly misled other officials or allowed subordinates to
mislead others, including a Kansas City-area grand jury, to further investigations of abortion providers. It also
said Kline made a false statement to the Disciplinary Administrator and attempted to mislead the panel as it
considered his case.
Herr’s tweets included the following:
■ “Holy balls. There are literally 15 cops here for the Phil [sic] Kline case today. Thus I actually
wore my badge.”
■ “You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live. php.”
■ “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag [sic].”
■ “ARE YOU FREAKING KIDDING ME. WHERE ARE THE VICTIMS? ALL THE PEOPLE WITH
THE RECORDS WHO WERE STOLEN.”
■ “This is a fuzzy situation. Umm, no, sorry Phil [sic].”
■ “I might be a little too feisty today.”
■ “I predict that he will be disbarred for a period not less than 7 years.”
A lawyer representing Kline before the Court, Tom Condit, called for an independent investigation of
the judicial branch after the tweets became the subject of widespread media reports, stating, at the time, that
he believed the attitudes expressed by Herr permeated the entire court system. Said Condit, “I have no interest in insulting any judge or justice in that courthouse who is prepared to be fair and objective as it relates to
Phill Kline…[b]ut the bigger question has always been what kind of atmosphere prevails in the back rooms of
the high courts of Kansas that would make a young lady like that so comfortable to tweet those kinds of comments in those circumstances.” http://cnsnews.com/news/article/kansas-appeals-court-attorney-fired-overtweet.
Herr had worked for Court of Appeals Judge Christel Marquardt since 2010, with a promotion to
research attorney in 2011. Before her firing, she had been suspended without pay. She apologized for making
the comments publicly. Herr said she failed to realize her posts were readable by all Twitter readers and she
understood her posts may have reflected badly on the state’s court system.
In 2013, Phill Kline was suspended indefinitely by the Kansas Supreme Court. In the Matter of Phillip Dean Kline, No. 106,870 (Kansas Oct. 18, 2013). He is now an Assistant Professor of Law at Liberty UniZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 21
versity School of Law in Virginia, teaching constitutional law, torts, public policy law, advanced trial advocacy
and “Bioethics and the Law”.
The following ethics rules are relevant to the issues discussed above:
1. Rule 8.4: Misconduct
Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:
***
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;.
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or other law;
IX.Blogging
Kristine Peshek served as an Assistant Winnebago County Public Defender in Illinois who wrote
and published a blog on the Internet. About a third of the blog, The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense, was devoted to her work at the Public Defender’s
office and clients, and the balance of the content concerned health issues, photography, and her bird-watching
hobby. She began publishing the blog shortly after she was diagnosed with acute stress disorder after she was
punched in the face by a client while in court. As to the work-related aspects of the blog, she typically referred
to her criminal defense clients by either a first name, a derivative of their first name, or a jail identification
number. The blog was open to the public and was not password protected. She maintained a site meter on the
blog and she received approximately 35 visits per day. Some examples of her postings:
■ Peshek represented a college student charged with possessing a controlled substance and
referred to him by a jail identification number. The blog entry stated that the client was not
guilty, but was pleading so in order to protect his older brother, whom Peshek knew from prior
dealings had possessed drugs and guns;
■ She represented a diabetic client on drug charges and published an entry that referred to her client by his first name. The entry stated that the client had lied to the court about his drug use,
which Peshek and others involved in the case discovered when the client’s drug test later came
back positive for cocaine. The entry also stated that the client had been under the influence of
cocaine when he appeared before a judge; and
■ She referred to a circuit court judge as being a “total a*****e” and, in another entry, called a local
jurist “Judge Clueless.”
The entries contained sufficient identifying information so that co-workers, employees of the Winnebago County State’s Attorney’s Office, police, bailiffs, or other participants in the court system could determine the identity of clients and judges to whom her entries referred. The blog also contained sufficient
information such that a motivated person who was not involved with the judicial system could, using other
publicly available information, determine the identity of the judges and clients referenced in her entries.
Eventually, her supervisor became aware that Peshek was publishing a blog containing information about clients and she was terminated from her job. In addition to client privacy concerns, she was disciplined because she essentially admitted to a Rule 3.3 violation in one of her blog postings. Specifically, she
represented a woman charged with breaking the terms of a probation order. Peshek published an entry that
22 ■ Toxic Torts and Environmental Law ■ March 2016
referred to the client by a derivative of her first name and stated that the client had lied to the judge during
sentencing by representing to the judge that the client was drug free and was not using controlled substances.
Peshek’s entry revealed that, immediately following sentencing, the client informed Peshek that the client was
actively using methadone. The client asked Peshek if she could go back before the judge and inform him that
she was on methadone. Peshek reported that she told the client that she could not inform the judge that she
was on methadone, because the judge would put the client in jail for having just lied to him about not being
under the influence of drugs. Peshek, who was licensed in 1989, was suspended for sixty days. In re Kristine
Ann Peshek, M.R. 23794, 2009 PR 00089 (Ill. May 18, 2010).
The vast majority of states limit the amount of client information that a lawyer can disseminate via
a blog absent a client giving the lawyer consent to do so. One jurisdiction seems, however, to interpret relevant ethics guidelines differently. In Virginia, criminal defense practitioner Horace Hunter published a blog
entitled This Week in Richmond Criminal Defense which was embedded in his law firm’s website. He used
his blog primarily to summarize his cases and tout his successful results. Sporadically, he inserted posts about
matters of public interest involving the criminal justice system.
The Virginia State Bar informed Hunter that he needed to use a disclaimer required by Virginia ethics law if he posted specific case results. The required disclaimer informs a reader that each case presents
differing circumstances and past results do not assure similar outcomes in future cases. Hunter objected to
the disclaimer because he claimed that his blog was not “advertising” or “commercial speech” and therefore
beyond the purview of the bar’s regulations. The Bar also found that some of the posts on Hunter’s blog disclosed information about specific clients’ matters, mentioning the client by name, that were “detrimental and
embarrassing” without first having obtained their consent. Hunter insisted that, because client information
had been revealed in an open public judicial proceeding, the information he posted was not protected under
Rule 1.6 and prior consent to publish the particulars of his clients’ cases was unnecessary.
Hunter asserted that the Bar’s position on both issues infringed on his right of free speech and filed
suit in federal court seeking to enjoin the bar from enforcing the applicable rules of professional conduct.
However, a federal judge dismissed the suit on abstention grounds, ruling that Hunter would have an opportunity to raise and litigate his constitutional issues in the state proceedings, none of which had yet to commence
when Hunter went to federal court.
Later a district committee found that Hunter violated both rules, holding that his blog was commercial speech and subject to the lawyer advertising rules including the disclaimer requirement of Rule 7.2(a)(3).
The panel also held that Hunter violated Rule 1.6 by publishing embarrassing information about clients even
though that information was a matter of public record. Hunter appealed to a three-judge court which upheld
the district committee panel’s finding that Hunter’s blog required a specific case results disclaimer, but dismissed the Rule 1.6 violation as contrary to law, holding that the bar’s application of Rule 1.6 to Hunter was
unconstitutional. Hunter appealed the advertising rule violation on an appeal of right to the Supreme Court of
Virginia. The bar assigned cross-error on the three-judge court’s finding that Rule 1.6 was unconstitutional as
applied to Hunter.
On February 28, 2013, the Virginia Supreme Court handed down its ruling. A Court majority agreed
with the panel that Hunter’s blog was commercial speech, citing the fact that very few posts were about general legal issues, in contrast to the large number that were about his victories in court. The Court also noted
that, in order to see the blog, a user had to navigate through the law firm’s website, a site that clearly solicited
client business. The Court ruled that although the blogs were not inherently misleading, they were potentially
so, thus justifying the need for a disclaimer. Most importantly, the Court agreed with the three judge panel’s
decision to dismiss the Rule 1.6 charge, since a lawyer has as much right as anyone else to report to the world
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what has happened in a courtroom. The Court remanded for imposition of a full disclaimer that complied
with the Bar’s regulations. Horace Frazier Hunter v. Virginia State Bar, No. 121472 , 2013 WL 749494 (Va.
Feb. 28, 2013).
The following ethics rule is relevant to the blogging issues discussed above:
1. Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to carry
out the representation…
X.Facebooking
By far, the most burgeoning area of sanction in electronic-issue lawyer disciplinary cases relates to
Facebook and other ESM abuses. The following opinions provide but a few examples of the cases being considered or decided by attorney regulators.
A.Dissembling
A Cuyahoga County prosecutor was fired after he admitted posing as a woman in a Facebook chat
with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony. Former
Assistant County Prosecutor Aaron Brockler insisted that he had done nothing wrong and should not have
been fired. “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to
obtain the truth,” said Brockler, 35, a county prosecutor since 2006. “I think the public is better off for what
I did.” The story was first reported by James F. McCarthy in the Cleveland Plain Dealer, Cuyahoga County
Prosecutor Fired after Posing as an Accused Killer’s Girlfriend on Facebook to try to get Alibi Witnesses to
Change their Testimony (June 6, 2013). County Prosecutor Timothy J. McGinty said he fired Brockler for
good cause. “This office does not condone and will not tolerate such unethical behavior,” McGinty said. “He
disgraced this office and everyone who works here…By creating false evidence, lying to witnesses as well as
another prosecutor, Aaron Brockler has damaged the prosecution’s chances in a murder case where a totally
innocent man was killed at his work.”
Brockler was the lead prosecutor in the aggravated murder case of Damon Dunn, 29, of Cleveland,
who was scheduled to stand trial for the shooting death of Kenneth “Blue” Adams on May 18, 2012, at an East
Side car wash. When the opposing attorneys exchanged witness lists in April in preparation for trial, Dunn
provided the names of two women whom he said could testify that at the time of the shooting, Dunn actually was on the other side of the city at Edgewater Park. Brockler considered the alibi witnesses the keys to the
case. Brockler engaged in Internet chats via Facebook with the alibi witnesses. He posed as a fictitious former
girlfriend of Dunn’s who had given birth to Dunn’s child, which Brockler said caused the women “to go crazy”.
Brockler spoke with both of the women the following day, but did not divulge that he had been their Facebook chat partner. He claims one woman told him, “This is bogus, I’m not going to lie for him.” He also claims
the other woman also changed her story, according to Brockler. “She said she wasn’t at the beach with him and
she wasn’t going to lie for him. They both wanted the truth to be known,” Brockler said. The women couldn’t
be reached for comment. Both are still listed as alibi witnesses by Dunn’s lawyers. Brockler said he told Dunn’s
defense lawyer, that his client’s alibi had fallen apart.
As reported by the Plain Dealer, Brockler printed transcripts of the Facebook chats and put them
in his file, with no intention of keeping them secret, he claims. Then, several days later, he left the office for
a two-month medical leave to have eye surgery. While Brockler was away, he received a call from Assistant
24 ■ Toxic Torts and Environmental Law ■ March 2016
County Prosecutor Kevin Filiatraut, who had replaced Brockler on the Dunn case during his absence and
questioned him about the Facebook chat transcripts that he found in the file. “I told him that was me,” said
Brockler. Filiatraut informed his supervisors. McGinty said he acted immediately.
According to the Plain Dealer, the Ohio Attorney General’s office had to be contacted so it could
take over the case. “Once we realized that (Brockler) might become a witness in this case, under the code of
professional conduct we had to hand it off,” said a spokesman for the prosecutor’s office. Brockler said he was
motivated by a sense of justice and sympathy for the victim’s mother, whom he said he had developed a relationship with. “To me, this is all a massive overreaction,” Brockler said. “I wasn’t some rogue prosecutor sitting
behind a computer trying to wrongfully convict someone. I did what the Cleveland police detectives should
have done before I got the file.”
Lawyer disciplinary charges are pending against Brockler. Disciplinary Counsel v. Aaron James
Brockler, Board of Professional Conduct, Case No. 2014-030.
B.Intimidation
An expectant 18-year-old mother arranged for the adoption of the baby she was carrying. Shortly
after the child’s birth, she executed a consent to adopt. The child was immediately placed with adoptive parents who then filed a petition for adoption. The biological father did not consent to the adoption. A court
scheduled a hearing on the termination of the biological father’s parental rights. Lawyer Eric Gamble represented the biological father in the proceedings.
Prior to the hearing, Gamble deposed the biological mother. At this point in the proceedings, the biological mother was not represented by counsel. The adoptive parents appeared through their attorney. During
the deposition, the biological mother testified that, at age 17, she worked with the biological father at a restaurant. The biological mother testified that after having worked together for a few months, they went on a date.
The biological mother testified that she became pregnant on their first date. The biological mother decided to
arrange for the adoption of the child as she and the biological father were not in a relationship. Throughout
her pregnancy, and after the birth of the baby, the biological mother was resolute about her decision to have
the child adopted. The biological mother clearly testified that she was not prepared to be a mother. Finally, the
biological mother testified that the process was ‘emotionally exhausting.’ Two days after the deposition, Gamble sent the biological mother a private message through Facebook. He wrote, “I can’t begin to explain how
beautiful and wonderful parenthood is. I have a little girl myself and she is my world just like you are your
dad’s world.” He also wrote:
You still have a wonderful opportunity to have a real relationship with your daughter if you so
choose. I have attached a document for you to consider signing and bringing to court or to my
office. It is a revocation of your consent to adopt. If you sign this document there is a very good
chance that you will be able to call [the baby] your own and [the baby] will call you her mom…
She deserves to know that you love her and care for her as well. Do not let this opportunity pass
you by because you will live with this decision the rest of your life and [the baby] will know
someday what happened. [The adoptive parents] do not legally have to ever let you see her again
after court (although they are probably trying to convince you otherwise with the idea of an
‘open adoption’)…This is your time to get rid of the guilt and standup and do what is right and
what [the baby] deserves. She deserves to have her parents love and care for her. She deserves to
know her grandparents and extended family. If she’s adopted, she won’t have that chance. [The
biological father] wants to be her dad and to love her. She deserves that. I urge you to print, sign,
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and notarize this document and bring it to my office before court. Trial is June 27, 2013, at 9:00
a.m. at the Johnson County Courthouse, Division 15. I hope to see you and your father there.
Gamble attached a ‘revocation for relinquishment of parental rights and consent to adoption of minor child,’
for the biological mother’s signature to the private Facebook message.
The biological mother appeared at the hearing pursuant to a subpoena issued by the adoptive parents. She declined to revoke her consent to the adoption. Counsel for the adoptive parents brought the
Facebook communication to the court’s attention. The court made no specific rulings on the Facebook communications and took the termination of parental rights issue under advisement. The next day, before any ruling, Gamble self-reported his communication to the Kansas Disciplinary Administrator. He wrote, “‘I wish to
self-report a likely violation of the following rules of professional conduct. I do so because I believe I may have
given legal advice to an unrepresented person.”
Formal disciplinary charges were filed against Gamble and eventually the Supreme Court determined
that a hearing panel’s recommendation of a 60-day suspension was inadequate. The Court agreed with the
panel that Gamble had attempted to manipulate the biological mother and, as a result, interfered with justice.
His conduct “amounted to emotional blackmail” of an unrepresented 18-year-old who was dealing with a process that was already “’emotionally exhausting.’” His “electronic message was designed to embarrass, burden,
and create guilt in the mind of the biological mother.” These “bullying tactics directly reflect on [his] fitness to
practice law as an attorney.” As a side note, Gamble’s client lost the case, and the adoption was finalized in July
2013.
Gamble, who was licensed in 2003, was suspended for six months. In the Matter of Eric Michael
Gamble, No. 112,037 (Kansas Dec. 5, 2014).
C. Judicial Misconduct
In several jurisdictions, judges are not per se prohibited from maintaining a Facebook presence and
‘friend’ lawyers who might appear before the judge. See, e.g., Ohio Op. 2010-7 (December 3, 2010) (A lawyer
and judge may be “friends” on a social networking site even though the lawyer appears before the judge on
behalf of a client). See also ABA Formal Ethics Opinion 462 (February 21, 2013) (A judge may participate
in electronic social networking but, as with all social relationships and contacts, that judge must comply with
relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s
independence, integrity, or impartiality, or create an appearance of impropriety). Not all jurisdictions are,
however, in accord. See, e.g., Oklahoma Judicial Ethics Opinion 2011-3 (Oklahoma July 6, 2011) (A judge
who owns an internet based social media account may not add court staff, law enforcement officers, social
workers, attorneys and others who may appear in his or her court as “friends” on the account); Massachusetts
CJE Opinion No. 2011-6 (Dec. 11, 2011) (A judge’s “friending” attorneys on social networking sites creates
the impression that those attorneys are in a special position to influence the judge. As a result, the judicial ethics code does not permit a judge to “friend” any attorney who may appear before the judge),
Senior Judge Edward Bearse was appointed to the Tenth Judicial District bench in Minnesota in 1983,
where he served as judge until he retired in 2006. He was then appointed and assigned to serve statewide as a
Senior Judge. While serving as a Senior Judge, he posted comments on his Facebook page concerning cases
to which he was assigned. Bearse believed that his Facebook posts were available to approximately 80 family members, friends and members of his church but, in fact, they were available to the general public. In two
instances, Judge Bearse made negative remarks in Facebook posts concerning criminal defendants with
lengthy histories of bench warrants, in one instance commenting, “We deal w/a lot of geniuses!” Other comments included “What a zoo!” (referring to Hennepin County District Court on a particular day); and “Just
26 ■ Toxic Torts and Environmental Law ■ March 2016
awful his son turned out to be such a Klunk.” (referring to a case in which the son was charged with felon in
possession of a shotgun).
He also made comments about specific cases. For example, a man was charged with intentionally
engaging in the sex trafficking of an individual. The evening of the first day of trial, Bearse posted the following comment on Facebook:
Some things I guess will never change. I just love doing the stress of jury trials. In a Felony trial
now State prosecuting a pimp. Cases are always difficult because the women (as in this case also)
will not cooperate. We will see what the 12 citizens in the jury box do.
After two additional days of trial, the defendant was found guilty by a jury. The county attorney’s
office discovered Bearse’s Facebook post and disclosed it to the defense after the trial and before sentencing.
The defendant moved for a new trial. The motion was assigned to a different judge who granted the motion.
In another Facebook posting, Bearse commented on cases that had come before him as signing judge:
My day yesterday in the Hennepin County District Court in Minneapolis:… Criminal Vehicular
Homicide where defendant stoned on Xanax supplemented it w/a lot of booze and then drove
wrong way down a freeway colliding w/an innocent citizen driving the right way down the same
freeway killing him…and most interesting—three kidnappings…where the three were physically tortured to try and find the drugs.
For these and other postings, he was publicly reprimanded. In the Matter of Senior Judge Edward
W. Bearse, No. 15-17 (Minnesota Board on Judicial Standards, Nov. 23, 2015).
The following ethics rules are relevant to a number of the issues discussed above:
1. Rule 8.4: Misconduct
Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:
***
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;.
(d) engage in conduct that is prejudicial to the administration of justice;
2. Rule 4.3: Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
shall not state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the lawyer’s role
in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The lawyer shall not give legal advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably should know that the interests of such
a person are or have a reasonable possibility of being in conflict with the interests of the
client.
3. ABA Model Rules of Judicial Conduct, Rule 2.10: Judicial Statements on Pending and
Impending Cases.
(A) A judge shall not make any public statement that might reasonably be expected to
affect the outcome or impair the fairness of a matter pending* or impending* in any court,
or make any nonpublic statement that might substantially interfere with a fair trial or
hearing.
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XI.Uploading
A woman named Angela was charged in Pike County, Illinois, with unlawful delivery of hydrocodone
pills. Angela hired Jesse Gilsdorf, a Mt. Sterling, Illinois sole practitioner, to defend her in the criminal case.
During the course of discovery in that matter, prosecutors transmitted to Gilsdorf copies of police reports and
a DVD video of the undercover drug buy that led to the criminal charges. The DVD ran for about 18 minutes
and showed the delivery of a controlled substance by Angela to a woman who was a confidential source for the
Illinois Drug Task Force. The undercover operation was carried out at the home of the confidential source.
After watching the video, Gilsdorf believed that it, “was clear to me that, in fact, drugs were being
planted.” So, Gilsdorf decided to upload the video to YouTube. To do the upload, he hired a company to do the
work and paid the company $233.75 for their services. Because of the size of the item, the video was posted on
YouTube in two parts. The titles of the two posted videos were “Cops and Task Force Planting Drugs-Part
1” and “Cops and Task Force Planting Drugs-Part 2”. He then posted a link to the videos on his Facebook
page.
The postings described by Gilsdorf as a “drug plant” were obviously intended to suggest that the Drug
Task Force engaged in improper or illegal conduct by entrapping Angela. The videos revealed the visage of the
confidential source and the face of the confidential source’s young child. When he was later was asked about
his purpose in having the videos posted on the Internet, he explained that “there had been extensive pretrial
publicity put out there by the state…placed in all the newspapers and we were trying to negate some of that
adverse pretrial publicity.” He said that Angela’s case was “widely publicized” and “the state’s attorney’s office
had, in fact, made substantial public statements regarding this case.” He further explained that “because of the
extensive pretrial publicity, it became clear that pretrial publicity pushing back was absolutely something that
needed to be done to balance the scales.”
The Pike County State’s Attorney was not amused and filed a motion for sanctions, alleging that Gilsdorf violated Illinois criminal discovery rules by disseminating the videos. A trial judge agreed with the prosecutor that Gilsdorf had violated Illinois Supreme Court Rule 415(c) and ordered him to remove the videos
from the Internet. He complied.
In the approximately eleven weeks that the videos were posted on YouTube, the items received more
than 2,000 hits. According to police authorities, the confidential source had previously participated in drug
purchases from five different people, but that she could no longer be used by the Task Force after her identity
was published on the Internet. At some point, the State’s Attorney had a chat with Gilmore following a continuance of Angela’s trial. During their conversation, the prosecutor asked Gilsdorf if he had watched the video
closely and said that the delivery of drugs as captured in the video was “very solid” and “it’s there”. Following
their conversation, Gilsdorf decided to take another look. He went to his office and watched the video “again
and again” on a “large television set.” He then “changed” his opinion as to what the video actually showed. He
realized that the video did, in fact, show a delivery of the drugs by Angela. Gilsdorf later acknowledged that
“you can barely see it, but it is there.”
After watching the video and realizing his error, he telephoned his client and she came to his office
to view the video. They then discussed a guilty plea offer that was still pending and he advised her to consider
taking the offer. Ultimately, the client accepted the offer and entered a plea of guilty.
According to Angela, Gilsdorf never asked her for permission to post the video of the drug transaction on the Internet and she never gave him permission to do so. She said she first learned that the video was
posted was when Gilsdorf telephoned her, told her he wanted the video to “go viral,” and provided her with
the website address. Angela went to her sister’s house and viewed the video on YouTube. She and her sister
28 ■ Toxic Torts and Environmental Law ■ March 2016
then posted the video on Facebook and other social media websites. She explained that she posted it on other
sites as well because “I guess I was instructed by my attorney to do so. I mean, I wasn’t sure how it was going
to help me, but I guess that’s why you hire an attorney because they know the law.” Angela has mentioned
that the posting of the video on the Internet had an adverse effect on her life. She explained that it “became a
media storm;” her name was on the news and in the newspapers; “people that have known me my whole life
don’t speak to me now” and “it was very embarrassing.”
Gilsdorf was suspended for five months for his improper uploading and posting. In re Jesse Raymond Gilsdorf, M.R. 26540, 2012PR00006 (Ill. March 14, 2014). As an n aside, after the Supreme Court
ordered him suspended, Gilsdorf filed a federal law suit against the Illinois lawyer regulator, the ARDC, and
its Administrator, alleging that the defendants, in pursuing disciplinary sanctions against him, violated his
constitutional rights to “publicize” wrongdoing of public officials in a public forum. Gilsdorf v. Illinois ARDC
et. al., No. 3:13-cv-13405 (C.D.Ill). The suit was promptly dismissed for lack of federal jurisdiction.
The following ethics rule is relevant to the uploading issue discussed above:
1. Rule 3.6: Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of
a matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
XII.Ratings
Margrett Skinner, a Macon, Georgia family law practitioner, filed a petition for voluntary discipline
in which she admitted having violated Georgia Rule of Professional Conduct 1.6 and sought imposition of a
Review Panel Reprimand for her infraction. The disciplinary case began because Skinner was unhappy about
a negative review that a former client had posted on a lawyer rating site, LawyerRatinz.com, about Skinner’s
alleged lack of professional skills. The client had initially retained Skinner for a family law matter, then fired
the lawyer at some point in the relationship. Skinner posted protected client information on LawyerRatinz.
com in response to those negative reviews. Since the client used her own name in the initial post, Skinner was
not responsible for revealing the client’s name. She was, however, responsible for revealing the town in which
the client lived, the name of the client’s employer, how much the client had paid her to handle an uncontested
divorce ($750) and the fact that the client had a boyfriend.
The Office of General Counsel of the State Bar recommended that a Special Master accept the petition
for a reprimand. After noting the circumstances, Skinner’s lack of a disciplinary record, and the personal and
emotional problems that she faced at the time of the infraction, the Special Master concluded that the imposition of a Review Panel Reprimand would be appropriate. A unanimous Supreme Court, however, rejected
the petition for voluntary discipline, concluding that a sanction stronger than a reprimand was called because
Skinner had revealed confidential information about a former client. In the Matter of Margrett A. Skinner,
No. S13Y0105 (Georgia March 18, 2013).
In its decision, the Court opined that Rule 1.6 requires a lawyer to maintain in confidence all information gained in the professional relationship with a client unless the client consents to disclosure after consultation, or where exceptions, not present in the Skinner case, exist. Further, the duty of confidentiality
survives the termination of the client-lawyer relationship.
In disallowing the initial petition, the Georgia high court noted that it had never reviewed a lawyer’s
violation of Rule 1.6 “by means of internet publication,” but it stated that several other tribunals had handed
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out harsher sanctions for analogous wrongdoing. In Office of Lawyer Regulation v. Peshek, 798 N.W.2d 879
(Wis. 2011), a reciprocal discipline case, the Wisconsin Supreme Court agreed with the Illinois Supreme Court
and imposed a 60-day suspension on the former public defender who published a blog revealing confidential
information about her clients and derogatory comments about judges, and included information from which
the identity of the clients and the judges could be discerned. (See Page 22, supra). The Wisconsin Supreme
Court noted that Peshek began blogging to cope with the stress that followed a “traumatic event” in which a
client punched her face in open court. The court also cited In re Quillinan, 20 DB Rptr. 288 (2006). In that
case, Oregon suspended a lawyer 90 days for, among other things, posting to a bar group’s listserv “personal
and medical information about a [workers’ compensation] client whom she named” and whom she described
as “difficult” and unwilling to accept a “very fair” offer from an insurer.
After the Skinner case was remanded, a full evidentiary hearing was convened. On remand, evidence
was introduced suggesting that Skinner had posted a “fake” positive review of her abilities in response to her
former client’s criticisms. She acknowledged that she should not have done so and said that she had panicked
in the face of the client’s negative review. The hearing officer was willing to forgive that particular action,
but nevertheless recommended that she be publicly reprimanded for the Rule 1.6 violation. Eventually, the
Supreme Court of Georgia acquiesced, ruling that Skinner should receive a public reprimand, with the additional condition that she be instructed to take advantage of the State Bar’s Law Practice Management services
and recommendations with respect to internal office procedures, client files, and case tracking procedures. In
the Matter of Margrett A. Skinner, 758 S.E.2d 788 (Ga. May 19, 2014).
One other disciplinary case dealing with client revelations in the wake of a negative internet review
exists. In re 2013PR00095 (Illinois ARDC Hg.Bd. Jan. 14, 2014). A Hearing Board reprimand was imposed
against a lawyer after she revealed confidential information about a client in response to his posting a negative
AVVO.com review about her. She also bounced a check to another client. A Hearing Board reprimand is the
lowest form of sanction in Illinois and never reaches the Supreme Court.
The Respondent-lawyer agreed to represent a man (“R.R.”) in securing unemployment benefits from
his former employer, American Airlines. American had terminated his employment as a flight attendant
because he allegedly assaulted a fellow flight attendant during a flight. R.R. paid Respondent $1,500 towards
her fee. The lawyer represented R.R. at a telephone hearing before the Illinois Department of Employment
Security, at the conclusion of which the agency denied R.R. unemployment benefits. Shortly thereafter, R.R.
terminated Respondent. Within a few weeks, R.R. posted a client review of Respondent’s services on AVVO.
com, in which he discussed his dissatisfaction with her services. The lawyer contacted R.R. by e-mail and
requested that he remove the posting from the AVVO.com website. R.R. responded that he refused to remove
the posting unless he received a copy of his files and a full refund of the $1,500 he had paid as fees. At some
point, AVVO.com removed R.R.’s posting from its on-line client reviews of Respondent. Undeterred, R.R.
posted a second negative client review of Respondent on AVVO.com. Thereafter, Respondent posted a reply to
his review:
This is simply false. The person did not reveal all the facts of his situation up front in our first
and second meeting. [sic] When I received his personnel file, I discussed the contents of it with
him and informed him that he would likely lose unless the employer chose not to contest the
unemployment (employers sometimes do is [sic]). Despite knowing that he would likely lose,
he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my
clients lose but I cannot invent positive facts for clients when they are not there. I feel badly for
him but his own actions in beating up a female coworker are what caused the consequences he is
now so upset about.
30 ■ Toxic Torts and Environmental Law ■ March 2016
The ARDC charged that, by stating in her posting that R.R. beat up a female coworker, she revealed
information that she had obtained from her client about the termination of his employment. It was further
alleged that Respondent’s statements in the posting were designed to intimidate and embarrass R.R. and to
keep him from posting additional information about her on the AVVO.com website. The bounced check was
the result of accounting problems that have been rectified.
The following ethics rule is relevant to the issues discussed above:
1. Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to carry
out the representation…
ZAPPPPP!!! Regulatory and Professional Responsibility Issues Involving... ■ Grogan ■ 31