May 2008

While working for Jurist Temps Legal Staffing Solution, lawyer Steven Belcher was retained to work as a temporary attorney on a project basis for the St. Louis law firm of Paule, Camazine, & Blumenthal, a position that provided Belcher with access to the firm’s computer system and client files. He was assigned by the firm to represent a local governmental entity that had been sued in a wrongful death case. A man had died while in the custody of a sheriff’s office. Utilizing the firm’s computer system, Belcher sent by e-mail, to two of his friends or acquaintances, a photograph showing the overweight decedent lying naked on an emergency room operating table that he obtained from the client’s file. Belcher added text to his e-mail transmission wherein he made lewd and disparaging comments about the decedent that was potentially damaging to the firm and the client.

This dissemination of a non-public photograph taken from a client file, along with his e-mail comments, violated a number of different ethics provisions. He violated Rule 1.6(a), prohibiting a lawyer from revealing information relating to the representation of a client unless the client gives informed consent; Rule 4.4(a), prohibiting a lawyer, in representing a client, from using means that have no substantial purpose other than to embarrass, delay, or burden a third person; and Rule 8.4(d), providing that it is professional misconduct to engage in conduct that is prejudicial to the administration of justice. Belcher was licensed in Illinois in 2002 and in Missouri in 2004. For disseminating the photograph, he was suspended for six months in Missouri, with the suspension stayed by a six-month term of probation with conditions. In re Steven R. Belcher, SC 88876 (Mo. October 23, 2007). The Missouri disciplinary probation was terminated in May, 2008, the same month that Illinois entered a reciprocal disciplinary order against him based on the same misconduct that led to the Missouri sanction. In re Steven Ross Belcher, M.R. 22278, 08 RC 1502 (Ill. May 19, 2008). Illinois also suspended him for six months, with the suspension stayed by a six-month term of probation with conditions. However, on June 6, 2008, the Illinois order of probation was terminated because Belcher had successfully completed his Missouri probation.

The Belcher situation highlights a growing trend in lawyer disciplinary law. The misuse of electronic communication, especially e-mail, is serving more and more as a basis for professional sanction. A review of matters issued so far in 2008 suggests that such disciplinary cases will probably increase in number in the immediate future, most certainly due to the ubiquitous nature of this mode of communication.  

Several months before Illinois sanctioned Belcher for his e-mail improprieties, Indiana ordered a Madison County lawyer named Richard Bash suspended for 180 days without automatic reinstatement. When a client met with Bash to discuss divorcing her husband, he made two attempts to kiss her, which she rebuffed. After this meeting, he filed a divorce action on behalf of the client. When the client subsequently notified him that she did not wish to go through with the divorce, he attempted to talk her into proceeding with it. He eventually filed a motion to dismiss the divorce action, but later that same day, he sent the client several unsolicited sexually explicit e-mails. The e-mails were quite graphic and base. During the course of disciplinary proceedings, Bash denied attempting to kiss the client, but admitted sending sexually explicit e-mails. He obviously had no choice, as the client printed out copies of the e-mails and gave them to lawyer regulators. Bash contended that he sent the e-mails only after she implored him to do so because she was lonely and it would make her feel like a real woman. A hearing officer found the women’s “testimonial denial of any such request clear and convincing.” Moreover, the hearing officer found that “the sending of such e-mails to a client would have been grossly inappropriate conduct for any attorney, even were it true that the client made such a request." The Indiana high court concluded that Bash’s actions regarding this client were “markedly disturbing and violative of his fiduciary duty to her.” Further, Bash demonstrated a “willingness to lie under oath about his misconduct and to compound the distress he caused his client by attempting to shift the blame to her. “ Finally, the Court observed that the hearing officer found that Bash believed that he was not constrained by the Rules of Professional Conduct when he sent the e-mails to the woman in question because he had filed a motion to dismiss her divorce action before sending them. At this point, however, he was still the client's attorney of record in the divorce action. Clearly the attorney-client relationship remained intact at the time that he sent the emails to the client. Bash also failed to provide competent legal services in a post-conviction relief proceeding. In re Richard Meek Bash, No. 48S00-0603-DI-89 (Ind. Feb. 6, 2008). It should be noted that Bash has a disciplinary history.[1]

Two months after the Bash decision, the Maryland Supreme Court reprimanded a lawyer who e-mailed wholly improper legal advice. John Elmendorf became acquainted with an unhappily married woman named Laura through an internet dating site. Their communications were social in nature; however, the woman knew that Elmendorf was a lawyer. She asked Elmendorf if there was any way to get around the requirement that marital parties be separated for at least one year in order to obtain a no-fault divorce. He responded: “You can file whatever you want so long as the parties say that it has been a year, the court won’t question it so long as the parties agree to that.” The woman did not act on this statement, or hire Elmendorf to represent her. However, his statement could be construed to suggest that the parties could agree to present false testimony to the Court. The Court, in imposing a sanction, rejected a recommendation of a two-year suspension, finding that such a sanction based on these facts would be punitive rather than serving to protect the public. Grievance Commission v. John A. Elmendorf , Misc. Docket AG No. 57 (Maryland, April 17, 2008).

It took some time after the popularization of e-mail communication to see public lawyer disciplinary cases discuss the misuse and abuse of such communication. One of the first lawyer disciplinary cases dealing with a lawyer engaging in misconduct through electronic messaging was Cincinnati Bar Assn. v. Susan M. Sauter , 96 Ohio St. 3d 136 (Ohio, July 31, 2002). Sauter worked as a law clerk for a state appeals court judge. An eminent domain case in which the City of Cincinnati appealed a jury’s valuation of condemned property was pending before the appellate court. Assistant City Solicitors Mark Vollman and Geri Geiler represented the city in the appeal. One day, Sauter sent an e-mail to a friend named Dotty Carman who worked as an assistant in the Cincinnati City Solicitor’s office. In the e-mail, she provided inside tips on how best to approach the appeal. Her correspondence stated:

I couldn't locate Geiler's address, so I'm sending this to you to send to her… Re: oral argument next week in [the eminent domain appeal]. For standard of review on evidentiary issues, courts use abuse of discretion standard. Recently, judges on this court have been defining that standard not as ‘arbitrary, unconscionable’ etc. but as ‘not based on a sound reasoning process' See P&G v. Stoneham, C-990859, September 29, 2000, unreported [140 Ohio App.3d 260, 747 N.E.2d 268] (with Hildebrandt & Painter on panel), Ayer v. Ayer, C-990712, June 30, 2000, unreported [2000 WL 864459] (written by Judge Painter), and Hamilton County Sheriff v. SERB, 134 Ohio App.3d 654, 731 NE2d 1196 (1999) (Painter & Gorman). Painter especially thinks this is a better standard for abuse-of-discretion review. This type of review is probably better for the city, so you might want to hammer on the lack of sound reasoning by the lower court.

The e-mail concluded “This message will self destruct in two hours.” A copy of the e-mail was not sent to the opposing party. Geiler was out of town, so Carman gave the message to Vollman. Vollman, recognizing the problem, reported the matter to his superiors. Deputy City Solicitor Robert H. Johnstone reported the matter to the court administrator of the court of appeals, and then informed opposing counsel. Sauter’s judge recused himself from the case before oral argument took place. Sauter resigned. For this ex parte communication, Sauter was publicly reprimanded.

Two years later, Illinois followed Ohio’s lead and sanctioned a lawyer for misconduct involving e-mail. This time around, the wrongdoing involved a lawyer intercepting another lawyer’s e-mail correspondence. For many years, a lawyer named O’Connor practiced in a firm with a colleague named Schiff. In 1999, the firm broke up. During and immediately following dissolution, O’Connor and Schiff occupied the same office suite and frequently disagreed about the former firm’s affairs. At the time of dissolution, the firm represented Victor Oliva in a legal malpractice case. Schiff and another firm partner, Craig Church, handled the matter, and O’Connor had no direct involvement in it. The defendant-lawyer was represented by attorney Daniel McMahon. Under the firm’s dissolution agreement, O’Connor was entitled to $21,000 if the gross amount of the Oliva settlement exceeded $1,000,000. After the dissolution, O’Connor learned that the Oliva parties were in the process of settling the matter. After failing to obtain specific settlement information about the settlement from Schiff, O’Connor telephoned McMahon to obtain information. O’Connor learned that the gross amount of the settlement might not exceed $1,000,000. Thereafter, he continued to attempt to obtain further information about the settlement. One weekend, O’Connor entered the office that was formerly occupied by Church, who no longer worked for the firm. O’Connor used Church’s password to obtain access to the computer located in that office, on which Church had stored information pertaining to the Oliva case. He also reviewed e-mail correspondence to and from Church regarding the matter. O’Connor discovered an e-mail message from Church to Schiff, in which Church stated that he had “talked to [Oliva], he wants to clear $350,000.” The e-mail message also referred to the availability of Sister Kris Schrader, a witness for Oliva in the case, to testify at a deposition. O’Connor also found other e-mail messages referring to the nun’s availability. Based on his review of the e-mails, O’Connor thought that Church had been shielding the nun from contact with defense counsel. After printing copies of the e-mail messages, O’Connor spoke to McMahon, who told him that the nun was a material witness in the Oliva matter. Thereafter, without seeking an explanation from Church as to the references to Sister Schrader in the e-mail messages, and without reviewing any records pertinent to the Oliva case, O’Connor sent a copy of the e-mail messages to McMahon by facsimile transmission. After he received the copies of the e-mail messages from O’Connor, McMahon moved to extend the time within which to appeal the agreed dismissal of the Oliva case. McMahon did so because he became concerned that firm attorneys might have told the nun not to communicate with him, but not because he had become aware that Oliva would have accepted $350,000 in settlement. After communicating directly with the nun regarding her availability to testify, McMahon chose not to pursue the motion and to let the settlement stand. A lawyer disciplinary hearing panel found that O’Connor, while lacking a specific intent to divulge a client confidence, risked damaging the Oliva case by disclosing information to opposing counsel at a time when the agreed dismissal of the Oliva case could still have been vacated. Moreover, the panel found that his actions were motivated by a selfish desire to cause trouble for his former partners, and that as a result he failed to consider the degree to which he jeopardized Oliva’s interests. O’Connor was suspended for thirty days. In re Neil Daniel O’Connor, M.R. 19328, 01 CH 96 (Ill. May 17, 2004).

Many of the disciplinary cases in this developing area of professional responsibility law appear to involve what is essentially personal activity that takes place in a public or attorney-client context. A good example of misconduct in a public situation is the 2006 decision of the Wisconsin Supreme Court in Office of Lawyer Regulation v. Todd J. Beatse, 2006 WI 115 (Wisconsin, October 11, 2006). There, the Court sanctioned an attorney who engaged in aberrant and outrageous personal behavior in e-mail communication. Beatse served as an Assistant District Attorney for Monroe County. One day when he was in court attending hearings, his office received notice that the computer system had to be shut down for maintenance purposes. When his secretary went into his office, she found pornographic images that had been downloaded from the Internet and minimized on the bottom of his screen. When confronted by his boss, Beatse blamed his own son. He claimed that he had copied the images from his home computer and loaded them onto his work computer to see what sites his son had been visiting. When the district attorney ordered an investigation of the matter, a review of Beatse's state-provided computer showed that during the preceding 55 days (on 29 of which Beatse had been at work), he had browsed pornographic Internet sites for 36 hours, and that 12 of the 20 sites visited most by Attorney Beatse were pornographic sites. Beatse was suspended from his job without pay. While on suspension, he used the state e-mail system from his home computer to send inappropriate messages to female employees, one of whom was a court reporter. In those messages he made comments about having touched the breasts of a third Monroe County employee and about the court reporter's breasts. The court reporter also stated that Beatse had made a number of similar inappropriate oral comments about her breasts on previous occasions. In addition to all of these comments, the audit of the computer system disclosed that Beatse had sent a number of e-mails about his sexual activities and other sexual topics. Beatse initially denied having sent sexually explicit e-mails using the state computer system, except when the sexual content was "part of a joke." This was not true. Beatse was fired, was publicly reprimanded by the Wisconsin Supreme Court, and must pay $6,693.88 as costs for the disciplinary proceeding.

As to the future, lawyer disciplinary decisions will probably deal more and more with misuse of e-mail communication in the context of litigation, specifically in regard to discovery violations.  One of the most significant decisions this year dealing with electronic communication is not a disciplinary case, but might have nonetheless have profound disciplinary implications for a number of California lawyers. The decision, detailing the discovery abuses discovered during the course of intellectual property litigation, has been much discussed in various media outlets, including lawyer blogs and national news stories. See, e.g.,   Qualcomm Case Sends Tremors Nationwide ,   Solovy and Byman, National Law Journal (January 31, 2008).

Qualcomm Incorporated (Nasdaq: QCOM), a leading developer and innovator of advanced wireless technologies and data solutions, was the subject of an $8.5 million sanction order for discovery abuses in federal litigation Qualcomm Inc. v. Broadcom Corp.,  2008 WL 66932 (S.D.Cal. January 7, 2008). The sanction order had its genesis in a patent infringement action filed by Qualcomm in federal court in October 2005. The defendant, Broadcom, filed a counterclaim arguing that the patents were not enforceable "due to waiver" and because Qualcomm allegedly participated in a Joint Video Team ('JVT') in 2002 and early 2003. Over the course of discovery, Broadcom sought information through a variety of discovery devices concerning Qualcomm's participation in, and communications with, the JVT. As the case progressed, Qualcomm became increasingly aggressive in advocating the position that it never participated in the JVT during the relevant time period. For example, Qualcomm submitted an expert declaration confirming the absence of any corporate records indicating Qualcomm's participation in the JVT. Trial commenced on January 9, 2007, and throughout trial, Qualcomm vigorously asserted that it had not participated in the JVT in 2002 and early 2003. While preparing a Qualcomm witness named Viji Raveendran to testify at trial, however, one of Qualcomm’s lawyers discovered a 2002 email to viji@qualcomm.com welcoming her to the “avc_ce mailing list”. Several days later, on January 14, 2007, the Qualcomm lawyer and Raveendran searched her laptop computer using the search term “avc_ce” and discovered 21 separate e-mails, none of which Qualcomm had produced in discovery. The e-mail chains bore several dates in November 2002. While Raveendran was not a named author or recipient, the emails were sent to all members of two JVT email groups (jvt-experts and avc_ce) and Raveendran maintained them on her computer for more than four years. The Qualcomm trial team decided not to produce these newly discovered e-mails to Broadcom, claiming they were unresponsive to Broadcom's earlier discovery requests. The Qualcomm attorneys ignored the fact that the presence of the e-mails on Raveendran's computer undercut their client’s premier argument that it had not participated in the JVT in 2002. It further appeared as though the Qualcomm trial team failed to conduct any investigation to determine whether there were more e-mails that also had not been produced. Four days later, during a sidebar discussion, another Qualcomm lawyer argued against the admission of the 2002 avc_ce email reflector list, declaring: “Actually, there are no e-mails-there are no e-mails...there's no evidence that any e-mail was actually sent to this list. This is just a list of e-mail...addresses. There's no evidence of anything being sent.” During Raveendran's direct testimony, a Qualcomm attorney pointedly did not ask her any questions that would reveal the fact that she had received the 21 emails from the avc_ce mailing list; instead, he asked whether she had “any knowledge of having read (emphasis supplied)” any emails from the avc_ce mailing list. But on cross-examination, Broadcom asked the right question and Raveendran was forced to admit that she had received emails from the avc_ce mailing list. Over the lunch recess that same day, Qualcomm's counsel produced the 21 emails they previously had retrieved from Raveendran's e-mail archive. It later turned out that approximately 46,000 e-mails (totaling over 300,000 pages) were in Qualcomm’s possession in regards to the JVT matters, and that none of the 46,000 e-mails were turned over to Broadcom during discovery. The Magistrate Judge concluded that:  

[B]y clear and convincing evidence…Qualcomm, its employees, and its witnesses actively organized and/or participated in a plan to profit heavily by (1) wrongfully concealing the patents-in-suit while participating in the JVT and then (2) actively hiding this concealment from the Court, the jury, and opposing counsel during the present litigation.

The Magistrate Judge found that six Qualcomm lawyers had been involved in questionable discovery activities in the patent infringement case. (These lawyers have been popularly dubbed the “Qualcomm Six”. See, e.g., Preventing a Qualcomm at Your Law Firm, Deutchman, Pennsylvania Law Weekly (June 10, 2008). To address the potential ethics violations, the trial judge referred the Qualcomm Six to The State Bar of California for an appropriate investigation and the possible imposition of disciplinary sanctions. Not content to simply have the clerk of court notify the State Bar of California about this misconduct, the judge specifically mandated that, within ten days of her findings:

[E]ach of the Sanctioned Attorneys must forward a copy of this Order…to the Intake Unit, The State Bar of California.[2]

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