A lawyer who was disciplined for posting a YouTube video of police buying drugs from his client has filed a federal lawsuit challenging his suspension.

A Mount Sterling lawyer who was suspended from practicing for five months because he posted a video on YouTube showing police buying drugs from his client has filed a federal lawsuit alleging the Illinois Supreme Court's decision to suspend him was unconstitutional.

"The plaintiff seeks a preliminary and permanent injunction enjoining the administrator from implementing or enforcing regulations adopted by the Illinois Supreme Court limiting speech by attorneys. These rules violate the first amendment," Jesse Raymond Gilsdorf said in his lawsuit, which names the Attorney Registration and Disciplinary Commission ("ARDC") and its administrator, Jerome Larkin, as defendants. "The plaintiff seeks a declaratory judgment that the administrator by enforcing these rules has violated the plaintiff's right to free speech."

A five-month suspension

In a disciplinary ruling that got national attention, the hearing board of the ARDC found that Gilsdorf violated ethics rules for posting the video with the caption "Cops and Task Force Planting Drugs." Gilsdorf testified during an ARDC hearing that he initially thought the video showed police planting drugs on his client. On closer examination, he realized it showed that his client had sold drugs to an undercover officer.

Gilsdorf obtained the video from prosecutors who gave it to him as part of discovery during his representation of his client. Discovery documents and information are private in most cases under court rules. Gilsdorf countered that he received the information prior to a preliminary hearing and before his client was indicted, and thus it was not discovery material.

The hearing board, after an evidentiary hearing, found by clear and convincing evidence that Gilsdorf: (1) failed to consult with his client about his decision to post the video, in violation of Rule 1.4(a)(2); (2) failed to obtain informed consent from his client in violation of Rule 1.6(a); (3) engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d); and (4) made extrajudicial statements that could pose a threat to the fairness of the criminal proceeding in violation of Rule 3.6(a).

The review board accepted the hearing board's findings, except for the finding that Gilsdorf had engaged in conduct prejudicial to the administration of justice, and accepted the hearing board's recommendation that he be suspended for five months.

The Illinois Supreme Court adopted the recommendations and suspended Gilsdorf on March 14. The effective date of his suspension was April 4.

Gilsdorf could not be reached for comment. But according to reports from the ARDC and their recent motion to dismiss Gilsdorf's federal lawsuit, the video was viewed more than 2,000 times before a judge ordered it taken down. His client testified that she was humiliated by the exposure.

"Suffice it to say that the First Amendment does not protect an attorney for making accusations that have no basis in fact," the Hearing Board said in its written report detailing its findings and disciplinary recommendations.

In its response to Gilsdorf's federal lawsuit, the ARDC argued that Gilsdorf failed to state a claim on which relief could be granted and took the case to a tribunal, the federal district court in Springfield, that does not interfere with state disciplinary matters. His only recourse is to file before the U.S. Supreme Court, the ARDC said in its motion to dismiss. Gilsdorf's federal lawsuit also makes claims against various government officials and alleges that the ARDC holds public officials to a different standard by never pursuing misconduct charges against them when they talk about pending cases.

New media or not, ethics rules apply

Some notable cases, including one from the U.S. Supreme Court, overturned disciplinary actions against attorneys on First Amendment grounds, though they arose from different fact patterns than Gilsdorf.

In Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Supreme Court overturned a disciplinary action against a Nevada lawyer under a rule similar to Illinois' Rule 3.6, which prohibits making extrajudicial statements that could compromise justice, but also held that in some cases attorneys can be legally muzzled. In the Nevada case, Gentile had made public remarks just hours after his client was indicted that, the Supreme Court held, posed no danger of influencing a jury since the trial was not held until six months later.

In Hunter v. Virginia State Bar, 744 S.E.2d 611, 621 (Va. 2013), the Virginia Supreme Court overturned ethical sanctions imposed against a lawyer who wrote blog posts on his firm's website detailing cases he had won and that had been concluded. The court held that his posts were protected speech but also found that his posts constituted commercial speech, which could be regulated under ethics rules if any of his posts violated client confidences or interfered with the administration of justice.

Neither of these cases seem comparable to the facts in Gilsdorf.

"In terms of any impact of the Gilsdorf case, I think it should serve as a reminder to lawyers that they need to be smart about new technologies, and to make sure their conduct in using those technologies conforms to the Rules of Professional Conduct. Just because the rules don't include 'Facebook' or 'YouTube' by name doesn't mean the rules somehow don't apply," said ISBA General Counsel Charles J. Northrup.

"In fact, in most cases, the rules as written can accommodate most new technologies. The core principles of professional responsibility addressed in the rules, such as client confidentiality, remain the same, and for good reason. It is incumbent on lawyers to ensure their conduct complies with the rules, not that the rules must bend to fit the new technologies."

Dennis A. Rendleman, ethics counsel for the American Bar Association's Center for Professional Responsibility, noted that "[t]he majority of video issues that have arisen in Illinois have been those cases regarding citizens video/audio taping interactions with the police and then being prosecuted, which [practice] the Illinois Supremes just struck down as unconstitutional." [See What next for eavesdropping law in Illinois? elsewhere in this month's LawPulse.]

Making reference to the Virginia First Amendment case, Rendleman noted that that decision was not discussed in connection with the Gilsdorf matter. "It would seem that this is a case where one should not count one's chickens until one reviews the video very closely and gets the client's consent in writing."