Social mediaA lawyer made an emotional appeal to a teen mother via Facebook message, begging her not to consent to her baby’s adoption.   The lawyer represented the baby’s biological father; the mother was not represented by counsel.  The lawyer’s conduct drew harsh criticism and a six-month suspension from practice when the Kansas Supreme Court considered it in In re Gamble, and the case highlights several ethics rules.

“You will live with this decision the rest of your life…”

The 18-year old mother in the case executed a consent to adopt shortly after the baby’s birth.  The father did not consent, and the court scheduled a hearing on the termination of the father’s parental rights and the adoption.  The week before the hearing, the lawyer deposed the mother, who had no legal counsel.  The mother testified that she became pregnant on her first date with the father, with whom she had no further relationship.  She remained resolute about her adoption decision during the pregnancy, the birth and during her deposition testimony.

Two days after the deposition, the lawyer sent the mother a lengthy private message through Facebook and attached a document  he drafted, purporting to be a “revocation [of] relinquishment of parental rights.”  In the message, the lawyer reiterated who he was, and that he represented the father.  The message included the statements that:

  • the adoptive parents were keeping the fact of the hearing from the mother and did not want her to attend (the opposite was true); 
  • if she signed “revocation,” the mother could undo her previous consent (not a possibility under Kansas statute);
  • it “was not too late” “to make things right,” and that the baby “deserves to know that you love her;”
  • the adoptive parents did not “legally have to ever let” her see the baby again; and
  • she should not forgo the opportunity to revoke the adoption “because you will live with this decision the rest of your life.”

“Prejudicial to the administration of justice”

The initial hearing panel found that the lawyer did not violate the state’s Rule 4.3, governing contact with an unrepresented person, and the state supreme court agreed.  The lawyer did not falsely state or imply that he was “disinterested,” which the rule prohibits; the mother knew at all times that he was representing an adverse party, the father.

But the lawyer’s Facebook message was misconduct under the state’s Rule  8.4(d), the panel and the supreme court said:  it was “prejudicial to the administration of justice” because the lawyer was attempting to manipulate the mother, who he knew did not want to revoke her consent.  And the lawyer also included false statements of material fact and law in the message, which the court found were made recklessly and negligently.

Adversely reflecting on fitness to practice

In addition, the court adopted the hearing panel’s finding that the lawyer violated the state’s Rule 8.4(g), making it misconduct for a lawyer to “engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”  The lawyer’s conduct amounted to “emotional blackmail” of an unrepresented 18-year old, the court said, when she was already dealing with a process that she testified was “emotionally exhausting.”  These were “bullying tactics” designed to “embarrass, burden, and create guilt,” reflecting adversely on the lawyer’s fitness to practice.

Effect of self-reporting under Rule 8.3

The professional conduct rules in a few states, such as Ohio, expressly require a lawyer to self-report the lawyer’s own professional misconduct.  Model Rule 8.3(a) does not — only certain misconduct of “another lawyer” is required to be reported.  The Kansas version of Rule 8.3(a) is more stringent than the ABA’s Model Rule, but does not expressly mandate self-reporting.  It provides that “A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.”

Cases in some jurisdictions (such as Louisiana and South Carolina) have considered self-reporting as a mitigating factor in imposing discipline for lawyer misconduct.  But in In re Gamble, the hearing panel discounted the lawyer’s self-reporting, because despite admitting the rule violations, he was not cooperative during the disciplinary process.

Not “no harm no foul”

The lawyer asserted that no one was injured by his conduct except himself, because the adoption had proceeded despite the emotional Facebook message he sent to the mother. The hearing panel and the court disagreed, finding “injury to the legal system, to the legal profession, to the biological mother [and] to the adoptive parents.”

Just don’t do it

In this case, a lawyer made  false representations of material fact and law to a vulnerable and unrepresented teenager.  Any such conduct — whether or not using social media, as this lawyer did — can result in disciplinary sanctions such as the court imposed here.