Careful, everyone might hear you
Some weeks ago I wrote about a fellow named Charles Clark who, back in the early 1950s, shot his wife to death and then called his attorney. Clark’s attorney advised him to “get rid of the weapon” while the attorney traveled to meet with Clark.
But it happened that their conversation was overheard by the telephone operator who put through the call. When Clark tried to argue that the conversation was a confidential attorney- client communication, the court of appeal disagreed, noting that Clark’s lawyer merely had assisted a possible defendant to dispose of evidence.
The case has a quaint feel to it today, because the telephone operators have gone the way of the buggy whip, Burma-Shave signs, video cassette recorders, and successful network television shows. But one thing hasn’t changed in 75 years: human foolishness. One modern version of Clark’s case was decided last May by the Tennessee Supreme Court.
The case is an attorney disciplinary matter, and the court’s first line pretty much tells the whole story: “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.” In this case, an attorney named Winston Sitton maintained a Facebook page, and his Facebook profile identified him as an attorney. Sitton had a “Facebook friend” named Lauren Houston (whom he’d never met in person).
Around December, 2017, Ms. Houston was in the midst of a break-up with the father of her child. Through their Facebook exchanges, Sitton became aware of allegations she’d made of her mistreatment at his hands. One day, Houston posted on her own Facebook page: “I need to always carry my gun with me now, don’t
I? Is it legal to carry in TN in your car . . . ?”
As the court explained, “the post was not directed to anyone specifically but rather was aimed at Houston’s Facebook audience.” Responding to her post, Sitton initially commented: “I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship . . . you will kill your . . . son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly.”
So far, so good. He advised using non-lethal force to defend herself. But then he . . . kicked it up a notch, adding, “If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.”
Hmmm . . . “load for bear.” And then, apparently unable to help himself, he went on, “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.”
After Houston responded that she wished he would try breaking in, Sitton added, “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.”
Well, that escalated quickly, didn’t it? She deleted the posts, but her ex-boyfriend had already seen them, and took screenshots of the exchange to the local district attorney. It, in turn, passed them along to the Tennessee Board that oversees attorney discipline, which filed a petition for discipline against Sitton.
At a hearing, the Facebook posts were the main evidence against him, and while he didn’t contest what he’d said, argued that his posts grew out of a concern for her safety against her child’s father. Sitton also claimed that he only wanted to make sure she kept her gun in her home, not in her car, and that his comments about luring him to her home to shoot him and then invoke the “castle doctrine” were just “sarcasm” and “dark humor.”
Neither the hearing panel nor the Tennessee Supreme Court found his “humor” particularly convincing. Noting the earlier escalation in suggestions from non-lethal weapons, to a shotgun loaded with rock salt or bird shot, to invoking the “castle doctrine,” the hearing panel recommended a 60-day suspension from the practice of law.
The Tennessee Supreme Court took an even dimmer view. It increased his license suspension to four years, with an actual suspension of one year plus three years’ probation.
So, if you’re a lawyer and you’re going to give advice to someone . . . don’t do it on a platform where millions of folks can “eavesdrop.”