Lawyer Disciplined for Sending Facebook Message to Adverse Party
An 18 year old had sex with a co-worker and ended up pregnant. She gave up the baby for adoption, but the biological father did not consent. The mother had signed an adoption consent form. Prior to the date of the hearing to terminate the father’s parental rights, the biological father’s lawyer sent the following Facebook message to the mother:
‘I wish to offer you some reasons why you should stand up and fight for your daughter. As you know, I am the attorney for [the biological father]. We held your deposition in my office. I wanted to give you the chance to make things right. This may be your last opportunity to be a mom for [the baby]. As I told you after your deposition in my office, it is not too late. 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. 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. [The baby] deserves to know her parents. 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’). The reason why you don’t know about the trial was because they don’t want you there because that doesn’t help [the adoptive parents’] case. 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, 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.’
The message was probably incorrect about the mother’s ability to revoke her consent to the adoption.
At the hearing, counsel for the adoptive parents raised this message, and the lawyer who sent the message decided to self-report to the bar.
The hearing panel considered whether the lawyer violated Rule 8.4(d) (lawyer may not engage in conduct prejudicial to the administration of justice) and (g) (lawyer may not engage in conduct that adversely reflects on her ability to practice law), and also Rules 4.1 (lawyer may not knowingly make a misrepresentation), 4.3 (lawyer may not imply disinterestedness to an unrepresented party), and 4.4 (lawyer may not embarrass, delay or violate rights in obtaining evidence).
As to rules 4.1, 4.3, and 4.4, the panel says that there were no violations. 4.1 requires a knowing misstatement, and even if the lawyer’s comments about the mother’s ability to revoke her consent was incorrect, there was no evidence that it was knowing. Similarly, as to rule 4.3, the lawyer had just taken the mother’s deposition a few days before, and there was no evidence that she would reasonably understand the lawyer to have her interests at heart. Similarly, the panel found that even if the lawyer had browbeaten the mother or made her feel guilty, this was done to improve his client’s position and thus had a legitimate purpose.
Interestingly, after having concluded that the lawyer’s message did not violate rules 4.1, 4.3 or 4.4, the panel concludes, and the Kansas Supreme Court agrees, that the lawyer’s message violated rules 8.4(d) and (g). 8.4(d) is a catch-all restriction on lawyer behavior that in some ways overlaps with the other rules. The panel says that his message was prejudicial to the administration of justice because (1) it went against the express wishes of the mother; (2) it contained false statements of fact (it incorrectly stated that the adoptive parents didn’t want her to attend the hearing) and law (the consent was not easily revocable); (3) the message “[presented a] document which would dramatically alter the life of an 18 year old . . . and at no time . . . suggest[ed] or recommend[ed] that she seek counsel” As to 8.4(g), the panel says that the message “amounted to emotional blackmail”:
respondent’s intentional bullying tactics directly reflect on his fitness to practice law as an attorney.
The court was admittedly influenced by the fact that the lawyer had previous instances of misconduct and he also made statements that took an overly adversarial view of this particular proceeding. (He complained about how long the process took, he was unprepared, and he accused the disciplinary administrator of bias.) Result: 6 month suspension.
Yowza. If the most recent wave of ethics opinion have drilled into lawyers one thing, it’s that contacting parties and witnesses via social media is fraught with ethical issues. That said, I can’t point to anything in his message that clearly crossed the line. The court’s finding that he violated the catch-all “conduct adverse to the administration of justice” rule, but not the more specific rules, tends to confirm that his violations were not obvious ones.
In times past, this message would probably have consisted of a visit over coffee, and you wonder whether everyone involved would have just chalked it up to typical aggressive persuasion tactics that lawyers are expected to employ. Perhaps notions of acceptable lawyer behavior have changed over the years (what the court calls “emotional blackmail,” others would probably call zealous advocacy). Is there some social media exceptionalism at play here?
Either way, the one takeaway from this is as a lawyer, you can never be too careful about communicating with interested parties via social media.
Case citation: In the Matter of Eric Gamble, No. 112, 037 (Dec. 5, 2014)