Facebook Message to Lawyerless Party Violated Rules Other Than Ex Parte Limits

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

Dec. 12 — A lawyer must be suspended for six months, not 60 days, for sending an over-the-top private message through Facebook to a young unwed mother while representing the biological father in an adoption proceeding, the Kansas Supreme Court decided Dec. 5.

By trying to make the mother feel guilty about consenting to give up her baby, the lawyer interfered with justice and demonstrated unfitness for law practice, the court said in its per curiam opinion.

A hearing panel had said the lawyer did not violate rules prohibiting ex parte contacts with unrepresented persons. The court found it unnecessary to delve into that aspect of the matter; it said the lawyer's violations of other rules were sufficient grounds to suspend him from practice.

‘Do What Is Right.'

In a private Facebook message to the unrepresented 18-year-old biological mother, attorney Eric M. Gamble told her she would regret her decision to give up her baby for the rest of her life, that the adoptive parents did not want her at the upcoming trial, that they would have no legal duty to let her see the baby after the adoption and that she should “do what is right” by signing a revocation of consent that he attached to the message.

The mother went ahead with the adoption, over the objection of Gamble's client.

The court endorsed a hearing panel's findings that Gamble sent the message in an effort to manipulate the young mother into retracting her consent to the adoption. The message was designed to “embarrass, burden, and create guilt” in her mind, and it amounted to “emotional blackmail,” the court said.

The hearing panel found, and the court agreed, that by sending the message Gamble violated Rule 8.4(d) (conduct prejudicial to justice system) and Rule 8.4(g) (conduct reflecting adversely on fitness to practice) of the Kansas Rules of Professional Conduct.

Save for Another Day

It was unnecessary to decide, the court said, whether Gamble also violated Rule 4.1 (truthfulness in statements to others) and Rule 4.3 (dealing with unrepresented persons). Those issues were not briefed and a finding of additional violations would not change the sanction here, the court said.

The hearing panel found that Gamble made misstatements in the message but did not do so knowingly in violation of Rule 4.1, and that he did not state or imply that he was disinterested in violation of Rule 4.3.

The panel also found that Gamble did not violate Rule 4.4 (respect for rights of third persons) because he sent the message for the purpose of advancing his client's position rather than to burden or harass the mother.

Short Suspension Isn't Enough

The court found that the hearing panel's recommended 60-day suspension was not an adequate sanction for Gamble's “egregious” misconduct.

Instead, it suspended Gamble from practice for six months as recommended by the disciplinary administrator. The opinion indicates that a minority of the court wanted to impose a longer period of suspension.

The court made clear that Gamble will not be automatically reinstated to practice when the suspension ends. If he petitions for reinstatement, the court said, he will have to present clear and convincing evidence that he understands the gravity of his conduct and that he has successfully completed anger management therapy and any other treatment recommended by a health care professional.

Deputy Disciplinary Administrator Kate F. Baird, Topeka, Kan., argued for her office. John J. Ambrosio of Ambrosio & Ambrosio Chtd., Topeka, argued for Eric Gamble. Gamble, of Kansas City, Kan., also argued on his own behalf.

Full text at http://www.bloomberglaw.com/public/document/In_re_Gamble_No_112037_2014_BL_342439_Kan_Dec_05_2014_Court_Opini.


The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.


Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.