Feb. 3, 2021 – A recent decision from the Tennessee Supreme Court called it “a cautionary tale on the ethical problems that can befall lawyers on social media.” If carried through, journalist Keith Morrison may have told the tale on Dateline NBC.
It all started when a woman, in the midst of a bad break-up with an ex-boyfriend, posted the following question publicly on Facebook: “I need to always carry my gun with me now, don't I? Is it legal to carry in TN in your car without paying the damn state?”
A Tennessee attorney was “friends” with the woman on Facebook, although they had never met her in person. The attorney responded to the woman’s post, publicly. He advised the woman to get a Taser or a canister of tear gas. Then he said the following:
“If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.”
The woman responded, “I wish he would try.” And the lawyer then responded: “As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life [-] revenge or premeditation of any sort will be used against you at trial.”
Recently, the Tennessee Supreme Court issued a disciplinary decision against the attorney – In re Sitton, 2021 WL 228072 (Tenn. Jan. 22, 2021), imposing a four-year practice suspension with reinstatement conditioned on “nine hours of CLE focused on the ethical use of social media by attorneys.”
Sarcasm No Defense
The woman took the attorney’s advice and deleted the Facebook posts. By then, the ex-boyfriend had already snapped screenshots of the exchange and delivered them to the district attorney, who passed them to Tennessee’s Board of Professional Responsibility.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
Subsequently, the Board of Professional Responsibility (BPR) alleged the attorney violated Rule 8.4 (misconduct) by counseling the woman “about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.”
In disciplinary hearings, the attorney admitted to his Facebook posts. However, he argued that his posts about luring the ex-boyfriend into the woman’s home and then using the “castle doctrine” as a defense was “sarcasm” or “dark humor.”
Many states, including Wisconsin (enacted in 2011), have a statutory castle doctrine defense. Generally, it allows a person to use deadly or substantial force against someone who unlawfully and forcibly enters their home, regardless of whether such force is necessary or reasonable to defend against imminent death or substantial harm.
The Tennessee attorney was explaining how the woman could use the castle doctrine defense, and the BPR rejected the claim that he was doing so sarcastically.
The BPR panel found that “a reasonable person reading these comments certainly would not and could not perceive them to be ‘sarcasm’ or ‘dark humor.’” The BPR panel found that advising the woman to delete the posts was an “aggravating factor.”
“The Panel finds that this further advice about deleting the Facebook posts confirms that this was no joke to Sitton. He intended this as legal advice about how to best plan a defense if she was ‘remotely serious’ about killing Mr. Henderson,” the panel explained.
The BPR issued a proposed order to the Tennessee Supreme Court with a recommended 60-day law license suspension. But the state’s high court rejected that proposed suspension as inadequate, and recently issued a four-year suspension.
“In his capacity as a lawyer, Mr. Sitton offered specific legal advice on how to orchestrate a killing in a way calculated to provide the perpetrator a fabricated defense to criminal charges,” the Tennessee Supreme Court’s decision noted.
“Then, in an ultimately unsuccessful effort to conceal the conversation, he directed Ms. Houston to delete the comment thread. Our rules do not permit lawyers to offer advice on how to commit crime with impunity.”
The court, like the BPR panel, rejected the lawyer’s “sarcasm” defense based on credibility and “the plain meaning of the words used in his social media posts.”
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The supreme court also ruled that a 60-day suspension was inadequate, looking at the ABA Standards for Imposing Lawyer Sanctions. The standards set out appropriate sanctions based on the violations of duties owed to the public or the legal system.
“Once the presumptive sanction is identified, aggravating or mitigating factors may indicate that a greater or lesser sanction is appropriate,” the court noted.
The court applied several ABA Standards provisions to conclude that suspension, rather than disbarment, was the appropriate sanction.
“In this case, Mr. Sitton did not make any false statements himself, and did not necessarily urge Ms. Houston to commit a crime and falsify a defense,” the court wrote.
“Rather, he gave Ms. Houston the tools to use deadly force against Mr. Henderson if she chose to, in a way calculated to make it appear to be self-defense. The question is close, but on balance, the facts here more closely fit ABA Standards 5.12 and 6.12.”
Those standards recommend suspension. But the court also considered aggravating factors, including the lawyer’s apparent lack of remorse.
“Remorse in this context means more than mere regret at having engaged in conduct that resulted in disastrous consequences to the offending attorney,” the court explained.
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It must include taking responsibility by appreciating and acknowledging the seriousness of the attorney's misconduct. In his brief to this Court, Mr. Sitton continues to claim this is all just a gross misunderstanding. This is not taking responsibility.”
The court noted that lawyers can use social media to establish an online presence, engage in their communities, market legal services, and “de-mystify the legal system.”
But that is not what happened in this case.” We can think of few things more prejudicial to the administration of justice than publicly fostering a view of lawyers as co-conspirators whose role is to manufacture plausible but untrue defenses against criminal charges for the premeditated use of deadly force,” the court wrote.
“Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment,” the court continued.
“Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified. [T]he public venue for Mr. Sitton's bad advice created a risk that others would use it as well.”
The court noted the “unique circumstances” of the case and no similar Tennessee cases to compare for uniformity of punishment. Thus, the court looked to other states, including decisions from South Carolina, Colorado, and New Jersey.
None of them involved statements posted on social media, but did involve wrongfully advising clients to engage in criminal conduct.
“His comments, posted for all the world to see, depict lawyers as fixers who manufacture fake defenses to evade criminal conviction,” wrote Judge Holly Kirby.
“Mr. Sitton's public misconduct ‘tears the very delicate threads of our legal system. Our system is not based on lies and deception but on truth and honor.’”
In imposing a four-year suspension, the court noted the lawyer’s Facebook posts appeared to be the result of a “foolish, impulsive decision,” rather than a pattern of conduct. The court also noted that the lawyer’s misconduct was an “isolated” event.
Wisconsin Ethics Rules
If it happened in Wisconsin, the facts in the Tennessee case of In re Sitton would possibly implicate Wisconsin Supreme Court Rule 20:1.2(d).
SCR 20:1.2(d) says: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”
The rule only allows a lawyer to “discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
In the Tennessee case, Mr. Sitton was not charged with violating Rule 1.2(d), and consequently, the hearing panel did not make a finding about whether Ms. Houston should be considered a “client” at the time of the Facebook posts.
However, the hearing panel referenced Rule 1.2(d) in a footnote, noted that Mr. Sitton did not dispute the fact that Ms. Houston perceived his comments as legal advice, and characterized the lawyer’s statements on Facebook as “gratuitous legal advice.”
This decision illustrates yet another hazard of social media – creating an “unintended client.” The Wisconsin Rules of Professional conduct do not determine whether a client-lawyer relationship exists. Paragraph  of the Preamble and Scope to the Rules states: “Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists.”
To determine whether a client-lawyer relationship has been formed, most jurisdictions, including Wisconsin, are guided by section 14 of the Restatement (Third) of the Law Governing Lawyers. The lawyer-client relationship arises when:
1. “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person;”
2. the lawyer either “manifests to the person consent to do so or . . . fails to manifest lack of consent to do so; and
3. “the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”
No written contract or payment is required to form the relationship. Whether a client-lawyer relationship exists for any specific purpose depends on the circumstances and may be a question of fact. Under the circumstance presented in the Tennessee Supreme Court opinion, it seems plausible that a client-lawyer relationship existed.
The Tennessee Supreme Court opinion also illustrates the difference between SCR 20:8.4 and Model Rule 8.4 as adopted by Tennessee. The hearing panel concluded and the Tennessee Supreme Court agreed: “Giving advice as a lawyer about planning in advance how to claim a defense to killing someone is conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d). Unlike Model Rule and Tennessee Rule 8.4(d), SCR 20:8.4 does not prohibit “conduct that is prejudicial to the administration of justice.”
Wisconsin Lawyer Ethics Articles on Social Media
The Tennessee case presents unique facts. But the interaction of social media and lawyer (and judicial) ethics is a continuing discussion topic for bar associations.
In a 2019 article, Hazards of Social Media Activity, Wausau attorney Dean Dietrich, then-chair of the State Bar Professional Ethics Committee, he noted that “the area of social media and its ethical implications is an ongoing and ever-changing environment.”