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By Samson Habte
July 3 — A lawyer who used social media and blogs to launch a “viral campaign to influence and intimidate” judges who presided over a friend's sensitive child custody dispute was disbarred June 30 by a divided Louisiana Supreme Court.
The decision appears to be the first officially published judicial ruling to find that a lawyer's use of the Internet to disseminate false and misleading information about a judge's handling of a pending case amounted to an unethical attempt to influence future rulings.
The court also broke new ground by finding that the lawyer, Joyce Nanine McCool, breached the ethics rule forbidding ex parte communications with judges when she used online petitions, blog posts and Twitter messages to implore members of the public to “call the [presiding] judges and let them know they are ‘watching' them and are ‘horrified' by their rulings.”
Speaking through Justice Jeannette Theriot Knoll, a four-justice majority voted to disbar McCool.
Two court members said they would suspend McCool for three years rather than disbar her. One justice—citing First Amendment concerns and the novelty of the social media-related ethics questions at issue—said he would impose a one-year suspension with all but six months deferred.
The disciplinary charges were based on what the court described as McCool's conduct in “spearhead[ing] a social media blitz” that was “nothing more than an orchestrated effort to inflame the public sensibility for the sole purpose of influencing” rulings in pending child custody cases.
The online campaign targeted two jurists: a Mississippi judge who ruled against McCool's friend in a parental termination case against her ex-husband, and a Louisiana judge who declined to exercise jurisdiction when McCool—on behalf of her client, who was her friend's new husband—initiated adoption proceedings and moved for emergency custody of two young girls.
The court said McCool wrote an online petition, blog posts and Twitter messages that accused the judges of refusing to investigate “overwhelming evidence” that the girls' father molested them. The petition and blog posts featured the girls' names and photos and urged the public to call the judges and “ask why they won't follow the law and protect these children.”
The court said McCool made “numerous false, misleading and inflammatory statements” about the judges' handling of the cases, and that “no law enforcement agency or court has found any merit to the serious allegations made against [the father].”
The family court judges were contacted by members of the public who viewed McCool's petition. Both judges later recused themselves from the cases.
The court said McCool's activities “amounted to a viral campaign to influence and intimidate the judiciary … by means prohibited by law and through the actions of others,” in violation of Louisiana Rules of Professional Conduct 3.5(a) (attempting to influence judge improperly) and 8.4(a) (violating rules through acts of another).
It further held that messages the judges received from people who responded to the online petition “constitute prohibited ex parte communication induced and/or encouraged by” McCool, in contravention of Rules 3.5(b) (improper ex parte contacts) and 8.4(a).
Additionally, the court said McCool breached Rules 8.4(c) (misrepresentation) and 8.4(d) (conduct prejudicial to administration of justice).
The Office of Disciplinary Counsel asked the court to suspend McCool for one year and one day. The ODC said there were no Louisiana cases “addressing misconduct similar to [McCool's],” and it based its recommendation on two unpublished rulings from other states.
The court spurned the recommendation. “Although the manner in which respondent violated the applicable rules of professional conduct is novel, the misconduct—ex parte communication, dissemination of false and misleading information, and conduct prejudicial to the administration of justice—is hardly so,” Knoll wrote.
“[McCool's] misconduct reflects a horrifying lack of respect for the dignity, impartiality, and authority of our courts and our judicial process as a whole,” she added in explaining why disbarment was warranted.
McCool claimed her statements were protected by the First Amendment because they were intended to “encourage the public [to] extoll their elected judges to do justice, listen to the evidence, apply the law, and protect children.”
The majority took “strong exception” to that defense.
“The appropriate method for challenging a judge's decisions and evidentiary rulings … is through the writ and appeal process, not by starting a social media blitz to influence the judges' and this Court's rulings in pending matters and then claiming immunity from discipline through the First Amendment,” Knoll wrote.
In a partial dissent, Justice John L. Weimer said the lawyer's free speech defense wasn't completely off base.
Weimer said he agreed that McCool improperly attempted to influence judges, prejudiced the administration of justice by encouraging ex parte communications and made sanctionable misrepresentations.
“This court's majority goes further, however, and sanctions the very acts of criticizing judges and inspiring public criticism toward judges,” Weimar wrote.
“Had [McCool] not peppered her criticism with misrepresentations, engaged in ex parte communications, engaged in conduct designed to gain an unfair advantage in on-going litigation, and broken a court-ordered seal imposed to protect confidentiality, the respondent's online criticisms of the judges' handling of the child custody matter would likely have been fully protected speech,” he added.
Weimar also dissented as to the sanction, saying the ODC's recommended one year and one day suspension—with all but six months deferred on conditions—was more in line with precedent. Weimar said deferring part of the suspension was appropriate because “the misconduct here is so novel.”
“Noting the novelty of internet blogging, one commentator suggests the rules governing the legal profession currently fail to equate blogging with an ex parte communication,” Weimar observed in a footnote, citing Rachel C. Lee, Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stan. L. Rev. 1535 (2009).
Justice Greg G. Guidry and Retired Judge James L. Cannella, sitting by assignment, dissented as to the sanction, arguing without elaboration that they believed a three-year suspension was appropriate.
Chief Disciplinary Counsel Charles B. Plattsmier and Deputy Disciplinary Counsel Tammy P. Northrup, Baton Rouge, La., represented their office. Richard Ducote, Pittsburgh, represented McCool.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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