On Wednesday of this week, I wrote a comment to one Scott Greenfield’s blog posts where I expressed some dismay about criminal defense attorneys – a few of whom I generally admire – who find it acceptable to reveal client confidences on their Twitter accounts.
My comment stated in part:
[Twitter posts that reveal client confidences] never cease to amaze me.
While I haven’t seem any tweets saying, ‘Client just confessed to _______,’ a number of otherwise respectable criminal law blawgers think it is OK to tweet gripes (usually for comedic value) quoting clients (or prospective clients) who don’t hire them, fire them after they’ve been retained, or fail to show ample appreciation for the lawyer’s work.
Yesterday, I read something that proved my point in a rather profound fashion. Mark Bennett posted a blog entry about a fellow criminal defense attorney whose tweet stated the following about his day’s schedule:
[C]hild sex day: child porn, soliciting minors, sex assault. Different clients all attracted to kids. Tough cases[.]
The attorney who authored this tweet is no slouch. He’s both experienced and respected. He is intelligent and passionate about his work, and writes one of the best criminal blogs on the Web. He strikes me as a man of integrity and courage. Never would I expect something like this from a guy of his stature. For all of these reasons, I hope and suspect that he’ll realize he blew it – big time – and admit his error in a way that serves as an example to younger attorneys whose reputations will be shaped, in part, by what they do online.
What was so wrong with his tweet? For starters, you can bet that the clients whose cases he was scheduled to appear on that day did not consent to his online admission that they have a sexual attraction to children. That alone establishes a violation of the trust the clients placed in him.
The violation is particularly serious because it wasn’t some indiscreet observation made to a trusted friend or associate. Instead, the comment was made in a public forum that memorialized the clients’ sexual interest for eternity, and in a manner that could lead to their identification fairly easily.
What if a judge or prosecutor on one of these three cases read the comment on the same day this attorney appeared in court? When I was a DA, I would have kept in the back of my mind for the remainder of the case. If and when the defense attorney made some plea for lenience during a chambers discussion, I might have brought it up to contradict the defense attorney if I thought he wasn’t telling the truth to the judge. It could have gone like this:
Defense Attorney: Your honor, this is really an unusual case where the court should give my guy probation. My client is willing to admit that he had these pictures on his computer, but he’s not the pedophile Mr. Gurwitz is making him out to be. Me: Well, I’m not the only one who thinks he’s a pedophile. Counsel admitted on his own Twitter account that his client has a sexual attraction to little kids.
Defense Attorney: That’s totally inappropriate for Mr. Gurwitz to say, your honor. It is also untrue. I never called my client a pedophile.
Me: Do you deny saying he had a sexual interest in children?
Judge: All right, cut it out. I’m not considering anything counsel may have written on Twitter. But I don’t think this is a probation case. My indicated sentence is three years state prison. Now, both of you get out of my chambers and see if he’ll accept the offer.
Dick move on my part? Perhaps, but I would have felt totally justified in using the statement if I felt the attorney was lying to the court in an effort to obtain a disproportionately low sentence. ———————-
Update: The defense attorney who authored this ill-advised tweet (whose name I haven’t used because I don’t feel the need to have this post show up when a prospective client Googles his name), wrote a response to this controversy on his blog. He claims that his phrase: “Different clients all attracted to kids” wasn’t a concession, but rather a statement that the prosecution believes this to be their motive. Good luck getting everyone who read the Tweet to believe that explanation.
He claims he will be sending documentation of this Tweetgate controversy to his local bar grievance committee, and will publish the results of their determination. He says: “If I am wrong, I will admit it.”
The fact that he hasn’t used this opportunity as a teaching moment for others is a disappointing, since he’s written before about the good that comes from mentoring younger attorneys. But his apparent failure to recognize that he was wrong – unless a grievance committee tells him otherwise – is a bit outrageous.
And what about the clients? Will he fully disclose this controversy to them? And if they think he was wrong, will that be enough to convince him?