Lawyer Loses License Due To Overzealous Social Media Activism For Client–In re McCool
Raven Skye Boyd Maurer and attorney Joyce Nanine McCool were friends. Raven had a bitter custody dispute with her ex-husband. Among other points of contention, Raven accused her ex-husband of sexually abusing the kids. Raven sought to terminate his parental rights in a Mississippi case before Judge Deborah Gambrell. Judge Gambrell denied the motion. In parallel, McCool represented Raven’s new husband in trying to adopt Raven’s children in a Louisiana adoption proceeding before Judge Dawn Amacker. Judge Amacker stayed the action pending the Mississippi court’s resolution and denied an emergency custody motion.
Finding no relief in court, McCool chose to take the fight to the (digital) streets. She drafted two Change.org online petitions (“Justice for Harley and Zoey” and “Pass the Protective Parent Reform Act“) that, among other things, purported to highlight issues arising in the Louisiana and Mississippi proceedings. One of the petitions urged the judges to make specific rulings enumerated in it and contained the judges’ contact information. McCool reposted the petitions on her blog, along with the judges’ office contact information and exhortations to contact their offices such as “Insist that Judge Amacker and Judge Gambrell do their jobs!” and “Let them know you’re watching and expect them to do their job.”
As requested, people did voice their views to the judges. Allegedly, hundreds of people called, wrote and even stopped by the judges’ office. As one example,
Judge Gambrell’s staff received an e-mail from Heather Lyons, a signer of the online petition. Ms. Lyons stated she lived and voted in Forrest County, Mississippi, and she would “be paying attention” to Raven’s case
McCool also tweeted up a storm, such as “Shouldn’t judges base decisions about kids on evidence?,” “Think u can convince a judge to look at it? Sign this petition,” and “Judges are supposed to know shit about … the law … aren’t they. And like evidence and shit? Due process?”
Whoa, that’s not how the judicial system works. It violates many of the strict “rules of engagement” about judicial advocacy. Those rules are put in place to make sure judicial decisions are made in accordance with the rule of law, not based on what’s popular. As the court pointedly notes,
the petition implores the judges to review/see “ALL” the evidence irrespective of the rules of evidence and the judges’ discretionary gatekeeping function conferred therein and likewise sets forth in explicit detail the specific manner in which the petitioners want the judges and this Court to “apply” and “follow” the law—essentially a quest for mob justice or rather “trial by internet.”
McCool intended to leverage the fact that state court judges are elected to sway how the judges ruled. Consider this Q&A with her:
Q. Do you still think that’s appropriate conduct today for an attorney to encourage people to contact a Court and ask them and voice their opinions about pending cases?
A. To—yes. I do.
Q. Okay. And do you think it’s perfectly okay, even today, for you to encourage that and to solicit that?
A. Yes. They’re elected officials. They are responsible—they are responsive and responsible to the people they serve. And if they don’t know that people aren’t concerned—The Supreme Court is a Policy Court. It responds to things that they believe are important social trends. So, yes, I do believe it’s important that the Supreme Court be aware that this is an important issue for people in the community. And the number that was provided is the Clerk of Court’s number.
Elsewhere, McCool said:
I guess I see judges as public officials. If I understand this correctly they’re elected both in Mississippi and Louisiana. They answer to the public. The public has a right to tell them how they feel. And I guess—oh boy, I’m getting on a soap box now, when the judicial—when it comes to the judiciary they have such incredible immunity that they somehow feel like they don’t have to answer to the public. And I feel strongly that particularly when it comes to family law that hearing from people about what’s going on is a part of what will make them better judges.
This encapsulates why many litigators, especially defense litigators, prefer to be in federal court over state court. Federal judges are appointed for life; they typically aren’t “running” for anything. In contrast, state judges are often elected, so they need to appeal to the popular view to get on the bench and then their rulings need to be sufficiently popular that voters will reelect them. The overhang of judicial elections injects more temptation to rule on what’s popular, not what’s dictated by the rule of law, into state court proceedings. McCool apparently sought to take full advantage of that.
The court was not impressed with the way McCool publicly spun the facts. The court says:
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 [Eric’s comment: was this supposed to be “subjective”?] 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. This is particularly true regarding the judges’ “refusal” to “hear,” “view,” or “admit” evidence, namely the audio recordings, which were never offered into evidence at any proceeding before either Judge Gambrell or Judge Amacker.
McCool invoked the First Amendment, but the court isn’t impressed with that either:
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. 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.
As part of the emotional appeal of her public advocacy, McCool posted personal details about Raven’s children, including audio recordings of the children discussing the alleged sexual abuse, even though evidence in the case had been sealed. This especially ticked off the judges:
we take umbrage with respondent’s online and social media activity that not only released the names of these children, but linked their audio conversations with their mother detailing their abuse allegations and posted their faces on the world wide web for anyone to see….In her misguided attempt to protect the children, respondent intentionally facilitated their exposure, breaching what we would consider one of the greatest duties owed by an attorney in a domestic litigation involving minor children and allegations of sexual abuse.
The online petition came back to haunt McCool in another way. She signed her name to the petition, even though it was an open letter to the judges about a legal matter she was handling in front of them. That also doesn’t sit well with the judges:
Her act in signing an online petition directly related to a pending litigation in which she was enrolled as counsel thus rises to the level of knowledge, because although she did not fax the petition, she, given her internet and social media suavity, clearly was aware the petition she signed could and might very well be printed and sent to the judges and courts to whom the petition was addressed.
Protip to lawyers: be careful signing online petitions, especially if they possibly relate to a matter you’re working on!
Altogether, the court concludes that McCool violated Rules of Professional Conduct against Improper Ex Parte Communication (Rules 3.5(a), 3.5(b) and 8.4(a)), Dissemination of False and Misleading Information (Rule 8.4(c)) and Conduct Prejudicial to the Administration of Justice (Rule 8.4(d)). So now what should the Louisiana Supreme Court do about it?
I have to imagine McCool’s professional responsibility attorney urged her to throw herself on the mercy of the court, but McCool stuck to her guns to the bitter end. The judicial resistance to such a hard line is predictable:
This Court will not tolerate respondent’s defiant attitude and unapologetic actions, which make a mockery of our rules and traditions.
Citing her online and social media advocacy as an aggravating fact because of its far reach, the judges chose the nuclear remedy for McCool’s misconduct:
Respondent’s misconduct is further distinguishable because of her use of the internet and social media to facilitate her misconduct. As a result, the petition and associated offensive postings had and still have the potential to reach a large number of people world-wide and remain present and accessible on the world wide web even today. Coupled with her complete lack of remorse and admitted refusal to simply allow our system of review to work without seeking outside interference, respondent’s misconduct reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole….
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.
Normally, I would criticize a ruling like this for indulging in social media exceptionalism, i.e., I’d fear the judges nuked her license as part of an overreaction to her use of online media to get the word out. But this time, I don’t see any exceptionalism. If McCool had engaged in the same advocacy objectives using pre-Internet media, I think the judicial ruling probably would be the same. It’s just that it would have been difficult or impossible to engage in such advocacy, or have it actually move people to contact the judges, in a pre-social media world. We as lawyers have new and powerful communication tools that our predecessors could only dream of; but the Spiderman Rule applies to such power.
McCool can’t be fully surprised by getting the death sentence on her career as a lawyer. In February, McCool told the ABA Journal:
“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.”
Are there broader lessons we can draw from McCool’s online advocacy campaign? McCool surely embraced her responsibility to be a zealous advocate for her client’s interests, which is something that we as professors urge for our students and try to teach and role-model. But perhaps it’s possible to care too much. If embracing the client’s position blinds the lawyer to his/her other professional responsibilities, that degree of passion and investment is actually detrimental–and in this case, career-limiting.
I don’t think this case stands for the broader proposition that lawyers can never use social media to advocate for their clients’ interests. If anything, I think social media advocacy is a vital option that lawyers can and should explore when looking at their “tool kit” of options to solve problems. But social media advocacy, like everything else a lawyer does, must comply with the Rules of Professional Conduct, such as the limits on trying to influence the judicial process without using the approved tools for advocacy. That’s such a fundamental no-no among lawyers that I have to imagine most lawyers–even the most aggressive–would never contemplate directing a social media campaign towards judges the way McCool did. For that reason, I think this ruling is properly focused on that fundamental transgression, leaving many other avenues for social media advocacy as fair game.
Venkat’s comments: Yowza. It is hard to excuse certain aspects of McCool’s conduct in this case, and easy to criticize her First Amendment blinders. She made inaccurate statements about the legal proceedings and then sought to take refuge in the First Amendment. The case is easy in that respect. The rest of this case is not so easy, and reflects a landscape that contains some unmarked ethical grey areas.
Trying to indirectly influence the outcome of a proceeding outside of the four walls of the courthouse is something that parties often engage in. That is usually the point of a social media advocacy campaign. Companies do it in response to perceived trademark bullying. Defendants in defamation cases may do it to fuel the Streisand Effect. The executive branch probably does it (again, indirectly) when a high-stakes case involving one of its initiatives comes before the top court. What went wrong here is that, as Eric notes, the judges were subject to electoral pressures and McCool sought to use that to her advantage. The precise way she did it should have probably set off alarm signals, but is there anything wrong generally with raising awareness about what she perceived as an incorrect decision? Would the outcome have been different if she had persuaded someone to write an editorial about the state of family law proceedings in Louisiana or Mississippi (and then posted a link to it)? What if she sent out an email to a list serve trying to rustle up amicus support for one of her cases? Was her crime that she included the contact information and encouraged members of the public to contact judges? That she signed the petition, instead of merely tweeting a link to it?
The lead opinion characterizes her online lobbying as an “orchestrated effort to inflame the public sensibility for the sole purpose of influencing this Court and the judges presiding over the pending litigation.” But the court is not unanimous on this issue, and a partially dissenting judge makes the point that judges are not such fragile creatures that they need to be protected from criticism about their decisions. In a footnote, the partially concurring and dissenting Justice Weimer notes that prevailing authorities and commentators do not equate blogging with ex parte communication. Maybe McCool should have just written a blog post instead?
In the end, the state bar had plenty of reasons to sanction McCool, and she certainly could have taken a more conservative course of action, or perhaps obtained an ethics opinion before proceeding. But the court’s language about propriety of McCool’s “viral blitz” and overall lobbying efforts was somewhat worrisome. (As a sidenote, the sanction of disbarment seemed excessive as well.)
The ethical issues that arise when lawyers discuss one of their ongoing cases always struck me as not easy or obvious. McCool’s disciplinary proceeding only confirms this view.
Case citation: In re McCool, 2015 WL 3972684 (La. Sup. Ct. June 30, 2015)
Loosely related: “No speech that ‘degrade[s] or call[s] into question the integrity’ of judges on courthouse sidewalks” (Volokh Conspiracy, on a Florida judge’s order)