Monday, July 6, 2015

Disbarment was imposed by the Louisiana Supreme Court for an attorney's online posts and use of a social media "blitz" in a domestic case.

The attorney was a friend of Raven Syke Boyd Maurer, who was involved in a bitter custody dispute in Mississippi.

Raven had alleged that her ex-husband had sexually abused their daughters.

These online articles and postings by respondent contain numerous false, misleading, and inflammatory statements about the manner in which Judge Gambrell and Judge Amacker were handling the pending cases. But respondent denies any responsibility for these misstatements, contending these were "Raven‘s perceptions of what had happened" and respondent was simply "helping [Raven] get her voice out there."

The postings violated ethics rules

Reviewing all the evidence, we conclude the telephone calls, the email, and the faxed petitions constitute prohibited ex parte communication induced and/or encouraged by respondent. Coupled with her social media postings, we further conclude respondent‘s online activity amounted to a viral campaign to influence and intimidate the judiciary, including this Court, in pending, sealed domestic litigations by means prohibited by law and through the actions of others. Accordingly, we find the evidence clearly and convincingly shows respondent‘s conduct in this regard violated Rules 3.5(a) and (b) and Rule 8.4(a) of the Rules of Professional Conduct...

Respondent‘s online posting and twitter feeds are littered with misrepresentations and outright false statements. Although she claims they were not made intentionally, respondent even concedes to the misrepresentations. Moreover, even after learning of the "mistakes" through her own review of the underlying records, respondent made no attempt to remedy them, but merely took the position they were her client‘s subject view of the proceedings, raising the level of her continuous posting and twitter conduct from a simple mischaracterization into a knowing and arguably intentional dissemination of false information...

And the conduct was not protected by 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.

We also find the ultimate result of the viral blitz was the recusal of both judges from the underlying domestic cases as well as other cases involving respondent as counsel.

The court

By holding the privilege of a law license, respondent, along with all members of the bar, is expected to act accordingly. This is particularly so when a lawyer is actively participating in a trial, particularly an emotionally charged child custody proceeding. Respondent in this instance ―is not merely a person and not even merely a lawyer...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.

Sanction

Respondent‘s social media campaign conducted outside the sealed realm of the underlying judicial proceedings constitutes, in our view, an intolerable disservice to these traditions and our judicial system, which the constraints of our rules of professional conduct seek to safeguard against. Accordingly, we find her ethical misconduct warrants the highest of sanction—disbarment.

Two justices would impose a lesser sanction.

Justice Weimer opined that

some aspects of respondent’s conduct amounted to constitutionally protected speech, for which respondent cannot be sanctioned....

This court’s majority goes further..and sanctions the very acts of criticizing judges and inspiring public criticism toward judges. In so doing, the majority impermissibly sanctions the respondent for engaging in constitutionally protected speech.

He further explains

the respondent perceived there to be mistreatment of her client’s children and looked to the judicial system to address that mistreatment. In light of her evaluation of the situation, respondent’s initial efforts to invoke judicial action were both expected and appropriate. However, as an officer of the court, a lawyer must abide by the principle that cases should be decided by careful deliberation and application of the facts to the law, not by public clamor. Therefore, after the litigation was complete, the respondent would have been entitled to disseminate appropriate criticism–on the internet if she preferred–that the courts ignored the rule of law, if her representations had been true. But they were not.

His dissent on the sanction

The suspension of one year and one day recommended by the hearing committee, disciplinary board, and ODC is consistent with the baseline of suspension under the ABA Standards. I would impose the recommended suspension, with one alteration. Because the misconduct here is novel in that this court has never directly addressed an attorney’s use of social media and the internet and the ODC points to only two other states that have addressed misconduct involving improper internet postings, I would defer all but six months of the suspension subject to the condition that the suspension would be fully imposed if respondent were to commit misconduct during the period of active or deferred suspension.

Justice Guidry would impose a three-year suspension.

Our earlier coverage is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/07/disbarment-was-imposed-by-the-louisiana-supreme-court.html