Lawyers' Ethical Stumbles Increase Online Illinois Attorney Registration and Disciplinary Commission

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1 Lawyers' Ethical Stumbles Increase Online Tresa Baldas The National Law Journal May 11, 2010 Steven Belcher was defending a wrongful-death case in 2006 when he had a bad idea. Belcher, then a temporary attorney at Paule, Camazine & Blumenthal in St. Louis, ed a photograph of the overweight deceased, lying naked on an emergency room table, to a friend, along with his own lewd and disparaging commentary. The firm, which monitored work s, turned him in to the state disciplinary counsel, and he was slapped with a 60-day suspension, stayed pending probation. Belcher, who is still licensed to practice law but has joined the Army, admits he made a "stupid" mistake. "I had my head up my butt," he said. Because he was licensed to practice in Illinois and Virginia as well as Missouri, more than one bar counsel heard about his case. And they wondered whether there was more here than one lawyer's bad decision. "It got our eyebrows up," said James Grogan, chief counsel of the Illinois Attorney Registration and Disciplinary Commission and a past president of the National Organization of Bar Counsel. "We thought, 'Wow, are we going to see more of these?' Well, I think it's clear we are starting to see more." Grogan, also chief counsel of the Illinois Attorney Registration and Disciplinary Commission, said the sense among his disciplinary brethren is that "more investigations are being generated for lawyers misusing electronic communications and the internet." Numbers are hard to come by; no one agency tracks the number of lawyers facing discipline for online behavior. But social networking by attorneys and all its potential dangers is being closely monitored in nearly every corner of the legal profession. Disgruntled clients, lawyers outing other lawyers, and bar counsel themselves are sparking investigations. Law firms host seminars and webinars on it. And bar counsel and bar associations bring it up at nearly every meeting. The American Bar Association's Commission on Ethics 20/20 has on its agenda, among other 21st century issues, whether existing ethics rules adequately address social media use by lawyers. It's not as if lawyers never misbehaved before. But now they're making the same old mistakes -- soliciting for sex, slamming judges, talking trash about clients -- online, leaving a digital trail for bar counsel to follow. Legal ethics expert Michael Downey said lawyers' tendency to be risk-averse seems to fade away on the internet. "They're disclosing confidences, talking about pending matters, they take potshots... like everyone else," said Downey, immediate past chairman of the American Bar Association's Ethics and Technology Committee and a member of the ABA Center for Professional Responsibility.

2 At the ABA, Downey, a partner in Chicago-based Hinshaw & Culbertson's St. Louis office, said the focus is on whether new misdeeds require new ethics rules. He suspects the current rules "are probably adequate." Downey routinely lectures to law firms and bar associations on the ethical concerns lawyers face in the worlds of Twitter, Facebook, and blogs. "Someone just suggested yesterday that I do a program on this." The following stories may explain why. SEX IN THE FILES It was a want ad with a twisted twist in the "Adult Gigs" section of Craigslist. Now it could get Chicago immigration lawyer Samir "Sam" Chowhan disbarred. In May 2009, Chowhan was seeking a dual secretary/sexual partner, according to a complaint filed with the Illinois Attorney Registration and Disciplinary Commission. His ad read: "Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided." The ad asked for a résumé and a few pictures, "along with a description of your physical features, including measurements." A woman identified in the complaint as Debbi responded. Chowhan ed her back: "[I]n addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us." Debbi was not comfortable. The woman filed a complaint with the attorney discipline board. Chowhan initially denied he wrote the ad, claiming someone with "malice" set him up, but in September he fessed up. He appeared for a sworn statement at the disciplinary commission and, under oath, "acknowledged that he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 responsive ." His penalty is pending. Chowhan, who also faces discipline over his handling of immigration matters, now practices at Chowhan Law in Fort Wayne, Ind. He did not return calls seeking comment. FACEBOOK FOLLY Susan Criss, a Texas state trial judge in Galveston County, is a fan of social media. As an elected judge, she finds Facebook a good way to connect with voters. It also helps her keep tabs on lawyers. Criss has busted more than one lawyer in a sticky situation online. Last year, a prosecutor sought and received a weeklong continuance to attend a funeral, but her daily Facebook postings

3 showed her drinking and riding motorcycles. When the prosecutor returned, Criss called her on the less-than-funereal activities -- and denied the prosecutor's request for another, monthlong continuance. "She was embarrassed," the judge said. More recently, Criss said, another prosecutor in a case before the judge took pictures of a crime scene and posted them on her Facebook page, along with comments from law enforcement talking about the crime and crime scene. Criss was baffled. "Y'all are not thinking one bit about the fact that when you're asked to provide discovery to the other side in litigation... this is going to count," she said. Criss, who spoke about social networking mishaps at the American Bar Association's annual conference last year, said, "I see a lot of venting about judges. I see a lot of personal information being posted, like, 'Let's go get drunk tonight' or 'Let's go meet at the bar.'... You see these things and say, 'What are you thinking?'" On a positive note, she believes her Facebook bustings have had some impact. "I'm starting to see a lot more lawyers using common sense," she said. "They're reading about people getting caught, and they're seeing the consequences." CRITICAL LINE It seemed like the perfect venting tool, a courthouse blog. Florida criminal defense attorney Sean Conway couldn't resist the temptation. Conway wrote that Broward County Circuit Judge Cheryl Aleman was an "evil, unfair witch" with an "ugly, condescending attitude." He also suggested she was "seemingly mentally ill." His beef? The judge allegedly wasn't giving defense lawyers enough time to prepare for trials. Repercussions? You bet. The Florida Bar reprimanded Conway in April 2009 and fined him $1,200 for violating five ethics rules, including impugning a judge's qualifications or integrity. Conway argued that it was his constitutional right to criticize a judge. He contended that, outside a courtroom, a lawyer's speech cannot be restricted any more than anyone else's. But the Florida Supreme Court declined to hear his case. Sure, Conway admits now, his words were harsh, but he had to use powerful words to get his point across. "She was doing something that was blatantly unfair... and I had to expose it," said Conway, who still encourages attorneys to vent online. "Just don't sign your own name....just do it from hiding." Conway recently started his own solo defense practice in Hollywood, Fla. He said he only visits blogs now; he doesn't comment in them. TRASH TALK If she'd confined her blog posts to her hobbies, bird watching, and photography, her supervisor likely wouldn't have minded. But Kristine Ann Peshek, an assistant public defender in

4 Winnebago County, Ill., also wrote about her clients -- quite candidly. According to a complaint filed last August with the Illinois Attorney Registration and Disciplinary Commission, she disclosed confidential information about them. On March 28, 2008, she wrote of one client: "This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because 'he's no snitch.'... My client is in college. Just goes to show you that higher education does not imply that you have any sense." Peshek hid clients' names, but spoke freely about their cases. In another 2008 post, she wrote: "'Dennis,' the diabetic whose case I mentioned in Wednesday's post, did drop as ordered.... Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge." Peshek, according to the complaint, also criticized judges, calling one an "a..hole" and another "Judge clueless." In April 2008, Peshek's supervisor learned of her blog. She was terminated that month. The disciplinary commission has recommended a 60-day suspension. A final decision from the Illinois Supreme Court is expected within weeks. Peshek, now in private practice at Peshek & Rabbitt in Beloit, Wis., declined to comment. ALL PUFFED UP Dennis Hernandez identified four lawyers with his firm who were not -- to get technical about this -- licensed to practice law in the state of Florida. Since Dennis Hernandez & Associates is based in Tampa, the Florida Bar was not pleased. And since the four were named on his website under "Our Attorneys," the evidence of Hernandez's misstatements wasn't hard to find. The Florida Supreme Court last August disciplined Hernandez for, among other things, making statements that were "potentially false or misleading" about the lawyers working at his firm. According to a complaint filed with the Florida Bar, Hernandez on his website provided biographies for four individuals not licensed to practice law in Florida. One of them had been disbarred elsewhere. Harry M. Walsh Jr. was licensed to practice law in Maryland until September 2004, when he was decertified and prohibited from practicing law. He was disbarred in The other three were Massachusetts lawyer Lori E. Eisenschmidt, Tennessee lawyer Christopher Lee Denison and Georgia lawyer Alan Austin Gavel, who had been suspended in Georgia from July 15, 1996, through Sept. 16, Hernandez was billing clients a senior associate rate of $300 per hour for these three. Gavel said, "When I was asked to do things that I thought were inappropriate, I left." In August, Hernandez was suspended for 90 days, ordered to attend ethics school and required to pay restitution totaling $19,766 to six clients who were misled. NO COMMENT Sometimes the judge herself ends up in the online hot seat.

5 Judge Shirley Strickland Saffold of the Cuyahoga County, Ohio, Common Pleas Court is refuting claims that she posted anonymous, snarky comments about some of her own cases. The more than 80 comments -- posted by one "lawmiss" on Cleveland.com, the website of The Plain Dealer -- were linked to Saffold's personal account. Saffold was outed by the paper, which had obtained public records showing the browsing history of her courtroom computer. Despite Saffold's insistence that she did not write about her cases online -- and the fact that her daughter has copped to the postings -- the judge was recently yanked off a serial-killer trial. The Ohio Supreme Court removed her from the case on April 22 to avoid "even an appearance of bias, prejudice or impropriety." Ohio Chief Justice Paul Pfeifer wrote, "[T]he nature of these comments and their widespread dissemination might well cause a reasonable and objective observer to harbor serious doubts about the judge's impartiality." So what exactly did "lawmiss" say? Here are some excerpts from The Plain Dealer. In a November 2009 post, she called a defense lawyer in a vehicular manslaughter case a "buffoon" and wrote, "If only he could shut his Amos and Andy style mouth." About a 2008 triple-murder case that ended in a life-without-parole sentence, lawmiss wrote, "If a black guy had massacred five people then he would've received the death penalty.... A white guy does it and he gets pat on the hand. The jury didn't care about the victims.... All of them ought to be ashamed." Saffold, meanwhile, has gone from judge to defendant to plaintiff. She is suing The Plain Dealer for $50 million, claiming it violated its own online privacy policy by outing lawmiss. Ellyn S. Rosen

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