Category Archives: Lawyer misconduct improper social media access

Louisiana Supreme Court disbars former Assistant U.S. Attorney for making anonymous improper internet comments

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which disbarred a former Assistant U.S. Attorney for making numerous anonymous improper and inflammatory comments on the internet related to pending criminal cases.  The disciplinary case is: Supreme Court of Louisiana v. In Re: Salvador R. Perricone, NO. 2018-B-1233 (12/5/18) and the link to the case is here:  https://www.ladb.org/DR/Default.aspx?DocID=9113&TAB=SC

According to the opinion, the underlying facts in the case were mostly undisputed.  The lawyer began employment as an Assistant United States Attorney with the U.S. Attorney’s Office for the Eastern District of Louisiana in 1991. At all times relevant to these proceedings, the lawyer was a Senior Litigation Counsel and the USAO’s training officer.

During the time period of the allegations in the Complaint, The New Orleans Times-Picayune newspaper maintained an Internet website called nola.com which permitted readers to post comments to news stories using pseudonyms and anonymous identities.

Beginning in November 2007 through March 14, 2012, the lawyer posted numerous comments on various subjects on nola.com, including statements about pending criminal cases to which he and other prosecutors were assigned. “Of the more than 2,600 comments respondent posted, between one hundred and two hundred – less than one percent – related to matters being prosecuted by (the U.S. Attorney’s Office). None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: ‘campstblue’, ‘legacyusa’, ‘dramatis personae’, “Henry L. Mencken1951’, and ‘fed up.’”

The anonymous comments included, inter alia, statements such as:

“Heebe’s (the defendant) goose is cooked.”

“I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

“Looks like Fazzio got a lemon. That book you refer to Mr. Rioux is about all of his losses. The guy is a clown and Fazzio is going down.”

The allegations were reported to the presiding judge who found the lawyer’s conduct improper and reversed the criminal convictions against the defendants and ordered a new trial.  The judge also found that the lawyer “viewed posting of highly-opinionated comments as a ‘public service.”  A disciplinary complaint was opened against the lawyer and, after disciplinary proceedings were completed, the Louisiana Disciplinary Board recommended that the lawyer be found guilty of the Bar Rule violations and disbarred.

The Louisiana Supreme Court opinion rejected post-traumatic stress as mitigation and stated that “the focus of the inquiry in the instant case is on the second factor – namely, whether respondent’s PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent’s mental condition may have caused his misconduct.”  After reviewing aggravating and mitigating factors and case law, the opinion further stated:

“In this age of social media, it is important for all attorneys to bear in mind that “[t]he vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely explained, “[a] profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom.” Id. Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.

In summary, considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.”

Bottom line:  This is another disciplinary case involving a criminal prosecutor improperly using the internet, this time it is a federal prosecutor who made biased and inflammatory comments.  The Louisiana Supreme Court (and other courts) have made it very clear that it will not tolerate lawyers, especially those in a position of “public trust”, who anonymously (or otherwise) make biased, improper, and inflammatory comments on the internet.

Be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

You are receiving this ETHICS ALERT since you are a current or former client or you have requested that this Update be sent to you.  Please note that you may opt in or out of receiving this ETHICS ALERT any time.  If you would like to discontinue receipt of this ETHICS ALERT or if you would like to begin receiving it, simply send me an e-mail to me advising of your request.

If there are others at your firm who would like to be included on the distribution list, please feel free to forward this update to them or let us know in an email.  If you would like to forward this Ethics Alert to any person or entity please feel free do so as long as it is not for personal gain and you forward the entire email, including all contact information and disclaimers. 

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

Advertisements

Leave a comment

Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer disbarment, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer inflammatory comments on internet about pending cases disbarment, Lawyer misconduct improper social media access, Lawyer sanctions, lawyer suspension social media misconduct, Lawyers and social media, Prosecutor disbarred for inflammatory anonymous comments on pending cases, Prosecutor misconduct discipline, Prosecutorial misconduct ethics

Texas Ethics Opinion 671 prohibits anonymous contact with unnamed internet defamer to obtain information for deposition

Hello everyone and welcome to this Ethics Alert, which will discuss recent Texas Ethics Opinion 671 which states that lawyers, and their agents, may not anonymously contact an unnamed online alleged defamer in order to obtain jurisdictional or identifying information sufficient for obtaining a deposition pursuant to Rule 202, Texas Rules of Civil Procedure.  The ethics opinion was issued in March 2018 and is here:  https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-671 

The ethics opinion responds to an inquiry from a lawyer which asked the following question:  “Whether an attorney or attorney’s agent may anonymously contact an anonymous online defamer in order to obtain jurisdictional information sufficient for obtaining a Rule 202 deposition”

The opinion states that under Texas Rules of Civil Procedure 202, a party may petition the court for an order authorizing the taking of a deposition to obtain the testimony of any person for use in an anticipated lawsuit or to investigate a potential claim or lawsuit.  Lawyers had previously relied on Rule 202 to discover both jurisdictional and identifying information regarding otherwise anonymous individuals online.

In August 2014, the Texas Supreme Court issued an opinion holding that a Texas court could not order a pre-suit deposition to identify an anonymous online defamer unless the petitioner showed that the individual had sufficient contacts with Texas for personal jurisdiction.  That decision raised the issue of how a lawyer could establish jurisdictional facts about an anonymous individual such as a cyber-stalker or an online defamer.

The opinion discusses the rules related to the lawyer’s duty not to make material misrepresentations to third parties and/or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation as well as other state ethics opinions which address the use social media to obtain information, such as sending a “friend” request on Facebook.

The opinion extends the rationale in those state opinions and concludes that:

“(I)t is the opinion of this Committee that the failure by attorneys and those acting as their agents to reveal their identities when engaging in online investigations, even for the limited purpose of obtaining identifying or jurisdictional information, can constitute misrepresentation, dishonesty, deceit, or the omission of a material fact. Accordingly, lawyers may be subject to discipline under the Rules if they, or their agents, anonymously contact an anonymous online individual in order to obtain jurisdictional or identifying information sufficient for obtaining a Rule 202 deposition. In order to comply with the Rules, attorneys, and agents of attorneys, must identify themselves and their role in the matter in question.”

The opinion does not address or discuss the use of technology to attempt to determine the location and name of the individual without direct contact.

Bottom line:  As I have said (and blogged) in the past, the ethics opinions (and the Bar rules) prohibit using surreptitious means to contact an individual to conduct an investigation and attempt to gain information, such as sending an anonymous or disguised Facebook “friend” request.  This Texas ethics opinion extends this analogy and states that lawyers (and their agents) are prohibited from anonymously contacting an unnamed online individual  to obtain jurisdictional or identifying information sufficient for a deposition (and ultimately a lawsuit).

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

Leave a comment

Filed under Attorney Ethics, Ethics Opinion anonymous conduct over internet o obtain information, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misconduct improper Facebook access, Lawyer misconduct improper social media access, Texas Ethics Opinion anonymous contact with unnamed internet defamer

New Jersey Supreme Court opinion holds that lawyers accused of improper Facebook access can be charged with ethics violations

 

Hello and welcome to this Ethics Alert blog which will discuss the recent Supreme Court of New Jersey opinion which held that lawyers who allegedly engaged in improper conduct related to access of an opposing party’s Facebook page can be charged with disciplinary rule violations.  The disciplinary matter is John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (New Jersey Supreme Court 4/19/16).  The disciplinary opinion is here: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf

According to the opinion, in the underlying matter, the plaintiff sued Bergen County New Jersey related to injuries that he allegedly sustained when a police car struck him in 2007.  The two lawyers represented the plaintiff and:

“(i)n order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s “friends.” The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account.  She therefore submitted a “friend request” to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

The opinion states that the plaintiff learned of the alleged misconduct when the lawyers “sought to add the paralegal as a trial witness and disclosed printouts” from the plaintiff’s Facebook page.  The opinion did not address whether the two lawyers violated any ethics rules or should face sanctions, but whether the New Jersey Office of Attorney Ethics (OAE) could prosecute the lawyers for the alleged misconduct after a regional disciplinary committee found that the lawyers’ actions, even if proven, did not constitute unethical conduct and dismissed the matters.

The OAE disagreed with the disciplinary committee and filed a disciplinary complaint with the Supreme Court against the lawyers.  The complaints alleged, inter alia, that the two lawyers communicated with a represented party without consent of the party’s lawyer and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  The two lawyers argued that they acted in good faith and had not committed any unethical conduct. They also stated that they were “unfamiliar with the different privacy settings on Facebook.

The opinion noted the unique nature of this attorney disciplinary matter and stated that it involves a “novel ethical issue” and “no reported case law in our State addresses the sort of conduct alleged.”  The court unanimously held:

“Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.”

Bottom line:  Lawyers beware: although this issue has not previously been addressed by the New Jersey Supreme Court (or the Florida Supreme Court), the Florida Bar Rules (and the Bar disciplinary rules of most, if not all jurisdictions, including New Jersey), prohibit a lawyer from communicating with a represented person without the consent of that person’s lawyer.  Florida Bar Rule 4-4.2(a) prohibits lawyers from communicating “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.”  The Rule is here:  Florida Bar Rule 4-4.2.  This rule would appear to prohibit a lawyer (or the lawyer’s agent) from accessing an opposing party’s Facebook (or other social media) page by sending a “friend” or other request and obtaining information that has been made private on that person’s settings.

Be careful out there.

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

Leave a comment

Filed under Attorney discipline, Attorney Ethics, Attorney misrepresentation, dishonesty, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline social media misuse, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer misconduct improper Facebook access, Lawyer misconduct improper social media access, Lawyer misrepresentation, Lawyer social media ethics, Lawyers and social media