Electronic communications are the literary equivalents to a pie in the face – funny to some, not so funny to others – it is after all in the eye of the beholder. If you are one of those lawyers who should have key locks on either side of the “Send” button on your smart phone, the you may want to take heed of on onslaught of recent disciplinary decisions in which the courts seem to fall pretty uniformly in the “not so funny” category when reviewing lawyer-generated electronic communications. Lest you believe there is a line between communications initiated in your personal capacity, as opposed to those sent in a professional capacity, the cases would indicate that the line falls somewhere between ill-defined and non-existent from the court’s point of view. To the contrary, it would appear that the courts are pretty uniform in their expectation that ALL lawyer communications remain within the happy confines of civility. The following is a brief exemplars of things better left unsaid and the sanctions that they warranted:
- One year suspension: For attorney’s conduct adversely reflecting on fitness to practice law in sending text messages suggesting that a student law clerk perform sexual favors for him, indicating that her continued employment depended on her compliance with his demands, repeatedly insisting that he was not joking, and pressuring her to travel out of state with him even after being rebuffed. Go figure – telling a law clerk that “if you show up at 11 you know what’s expected” falls in the “not funny” basket. This snarky attorney was found to have caused harm to the dignity and reputation of legal profession as a whole in violation of Rule 8.4(h). Lake Cty Bar Assn. v. Mismas, 11 N.E.3d 1180 (Ohio, 2014).
- Three month suspension: For an attorney who sent “sarcastic and sophomoric” comments to opposing counsel such as: “Did you get beat up in school a lot? Because you whine like a little girl.” “Why don’t you grow a pair.” And my personal favorite: “This will acknowledge receipt of your numerous Emails, faxes and letters … In response thereto, Bla Bla Bla Bla Bla Bla.” In the Matter of Stolz, New Jersey Disciplinary Review Board, DBR 13-331 (2014).
- Four month suspension: For attorney’s misconduct while serving as county district attorney in sending series of text messages that attempted to persuade a domestic abuse crime victim and witness to enter into sexual relationship with him while he was prosecuting the perpetrator of the domestic crime, in telling a social worker who was a witness in a termination of parental rights case that attorney was prosecuting that attorney would not “cum” in her mouth and that he wanted trial to be over because he was leaving on trip to Las Vegas, where he could have “big boobed women serve [him] drinks,” and in voicing his approval to another social worker during a court proceeding of a reporter’s “big beautiful breasts.” The Wisconsin Supreme Court properly determined that these and other comments were “sufficiently boorish” enough to constitute sanctionable misconduct. In re Disciplinary Proceedings against Kratz, 851 N.W.2d 219 (Wisconsin, 2014).
- One-year suspension: For attorney whose conduct, sending sexually explicit text messages to a client he was representing in divorce case (including a nude of himself), violated rules prohibiting representation if a lawyer’s personal interests will materially limit his ability to carry out appropriate action for the client, prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship, and prohibiting conduct that adversely reflects on the lawyer’s fitness to practice law. Rules of Prof.Conduct, Rules 1.7(a)(2), 1.8(j), 8.4(h). Discilinary Counsel v. Detweiler, 989 N.E.2d 41 (Ohio, 2013).
There is so much more that could be said on the subject, but I’ve got an email that I am dying to pop off to an opposing counsel right now – on second thought, maybe I’ll type it on carbon paper first, mail it to myself via snail mail, read it for my own personal amusement and properly dispose of it.
Ronnie Richter and Eric Bland