Daniel J. Siegel.
In 2013, the Pennsylvania Supreme Court amended the Rules of Professional Conduct to affirm that lawyers have an ethical duty to be technologically competent. Ever since, those of us who lecture and write about the topic have seen the derisive sneers, read the dismissive columns, and observed the condescending listserv posts. We have also watched as lawyers disregarded the rules and ignored technology.
Those days are over.
Those days are very over.
Just ask former Centre County District Attorney Stacy Parks Miller, whom the Pennsylvania Supreme Court suspended for one year and one day. The court’s Feb. 8, 2019, order implicitly adopted the Disciplinary Board’s 45-page report recommending the suspension. The basis for the suspension include virtually every way lawyers can find themselves in disciplinary hot water.
For technoethicists, the suspension vindicates our warnings, and is a road map showing not only how to get into trouble, but also how to get out of it.
Let’s take a look at what Parks Miller did to put herself in ethical hot water, and what lawyers can do to escape the same fate. While it’s true that Parks Miller’s conduct occurred while she was the DA, the lessons apply to all lawyers.
Ex Parte Communications
The Disciplinary Board report summarizes five cases in which Parks Miller had ex parte communications with judges and others relating to pending criminal prosecutions.
In the Cluck matter, Parks Miller sent an email to Common Pleas Court Judge Bradley Lunsford, defense counsel, and others requesting that the judge strike a portion of his order setting bail. The judge responded only to the DA, advising her that she had a “good point,” and that he would schedule a hearing. Parks Miller responded only to Lunsford, asking him to rescind the order. The judge then responded only to Parks Miller. In her defense, Parks Miller claimed that she did not intend to communicate ex parte and did not realize that the judge had left other counsel off of the email chain.
In the Horan matter, Lunsford scheduled a hearing to address a pro se praecipe for writ of mandamus. The DA emailed only the judge complaining about the hearing and including two caselaw citations. After responding solely to Parks Miller, the judge denied the petition. In her defense, Parks Miller agreed that she should not have sent the ex parte communications.
In the “Shirk” matter, Parks Miller sent 15 text messages to Judge Jonathan Grine about the case one day after the defendant was found guilty and released on bail. Although the text messages were deleted, the Disciplinary Board recovered the first 30 characters of each message using forensic analysis; the judge’s responses were not recovered.
In the Best matter, Lunsford conducted a Rape Shield law motion hearing the day before trial was to begin. After the hearing, Parks Miller sent two text messages to the judge and the ADA handling the case, but not defense counsel. These messages were deleted from the DA’s phone. Later that day, Lunsford granted the commonwealth’s motion. In response to an averment in the Disciplinary Board’s complaint about this matter, Parks Miller denied that the text messages related to any pending criminal matter and were not an improper ex parte communication. In a subsequent response, Parks Miller said that she had no independent recollection of the text messages, and also did not recall that the judge was an intended recipient of the messages.
In the McClure matter, approximately five months after the ex parte communications in Horan and Best, defense counsel filed a motion to recuse Lunsford, alleging that the judge was a personal friend of the DA. At the hearing on the motion, the judge stated, “I swear to God …There are no emails—well you are going to find emails because we are always attached on emails but you are not going to find any email that is inappropriate … They’re not there.” Parks Miller did not correct the judge’s statements because she had no reason to believe the judge’s statement was incorrect, had no recollection of the Horan matter email, and did not recall texting in the Best matter, and any such texts were not ex parte communications.
Finally, in the Hoy matter, a public defender filed a motion and a supplemental motion to recuse Lunsford, alleging that the judge and DA had exchanged 62 text messages. Parks Miller asserted that she never had any ex parte communications about any cases. She later amended her response to Disciplinary Counsel, claiming that she had no recollection of the Horan email, she did not recall that her last email in the Cluck matter excluded defense counsel, and that she never intended to make a false statement. She later admitted that her communications in the Cluck and Horan matters violated the Rules of Professional Conduct, and that her text messages with Grine were intended as a “joke” and not to influence the court.
The Facebook Page
Parks Miller created a fictitious Facebook account for “Britney Bella,” for the purpose of “liking” establishments suspected of selling bath salts, a synthetic drug with amphetamine-like effects. The account’s Facebook page, which included photos of young women obtained from the internet “to enhance the page’s allure,” sent and accepted “friend requests” to appear legitimate. She also discussed the possibility of the State Police creating a similar page, but they declined to do so.
After creating the Facebook page, Parks Miller sent an email to the assistant district attorneys and secretarial staff in her office advising them that she had created the fake page. She advised them to “Use it freely to masquerade around Facebook. Please edit it … to keep it looking legit … Use it to befriend defendants or witnesses if you want to snoop.” In response to the Disciplinary Board complaint, Parks Miller claimed that she would not have used the language in the email, the account was a “proper law enforcement operation,” and its exclusive purpose was to facilitate the self-identification of sellers of illegal and highly dangerous synthetic drugs and paraphernalia. Parks Miller claimed that the stores being tracked by the Facebook account were raided.
Parks Miller maintained and kept the Facebook page active long after the conclusion of the bath salts investigation. In one matter, a criminal defendant became a “friend” of Britney Bella three months after he was criminally charged. She also encouraged her staff to “masquerade” and “snoop” freely under the guise of Britney Bella.
In another matter, the Britney Bella account was used to search Facebook for a woman represented by counsel, who had been charged with nondrug-related offenses. The Britney Bella Facebook account also sent “friend requests” to the defendant and to one of her sons. In response to the Disciplinary Board complaint, Parks Miller claimed that individuals became friends with Britney Bella on their own and not in response to an invitation by anyone on behalf of the Facebook profile. She also asserted that the Facebook page assisted with the prosecution of and curbed the use of the illegal bath salts.
At her disciplinary hearing, Parks Miller acknowledged remorse for her ex parte communication with Lunsford in the Horan matter, did not acknowledge other misconduct, and did not accept responsibility or express sincere remorse. She also presented character witnesses who had limited knowledge of the ethical charges. One witness, a district attorney in another county, testified that he had never seen Parks Miller engage in unethical conduct, while also saying that he had “zero tolerance” for ex parte communications, which he described as wholly inappropriate.
In light of this evidence and testimony, the Disciplinary Board recommended that Parks Miller be suspended for one year and one day. Because the suspension exceeds one year, under Pennsylvania Rule of Disciplinary Enforcement 218, Parks Miller may not resume practice until she files a petition and is reinstated by order of the Pennsylvania Supreme Court.
Ex Parte Communication Is Prohibited in All Forms
If you couldn’t do it before the technological advances, you can’t do it after. Thus, ex parte text messages and email are forbidden, just as ex parte phone calls and letters have always been forbidden. As I wrote in my July 12, 2016, column, the “rules, and guidance from ethics experts, affirm that communicating with a judge concerning a pending matter in the absence of opposing counsel are generally prohibited.”
In addition to traditional examples of ex parte communications, I cited a situation in which one attorney forwarded to a judge, without consent, copies of candid communications he had with opposing counsel about the substance of the case. I also cited the case involving former Supreme Court Justice Rolf Larsen, who was given a public reprimand for ex parte communications with trial court judges.
In this case, the Disciplinary Board report explained that Parks Miller violated Pennsylvania Rules of Professional Conduct 3.5(a) and (b), 4.1(a), 8.1(a), and 8.4(d) and (f). As for the judges involved, Lunsford announced in 2015 that he would retire at the end of his term rather than seek retention. Grine received a “letter of counsel” from the Judiciary Conduct Board in 2017.
Seek Ethical Guidance Before You Do Something
Clients often seek legal counsel to avoid the consequences of improper or illegal conduct. Lawyers also should seek ethical, or technoethical, guidance to avoid the consequences of unethical conduct. Parks Miller did not do so.
As I frequently advise audiences when lecturing, there is a wealth of sources available to help them navigate the ethical waters and avoid being the subject of a disciplinary complaint. There are attorneys who regularly provide ethical guidance to lawyers and their firms. Some attorneys also provide guidance designed to address the technology-related minefields they are encountering. In addition, there are bar association-related forms of guidance, including ethics opinions or ethical guidance counsel. Parks Miller never sought any guidance.
In its report, the Disciplinary Board highlighted this mistake, explaining that “Respondent did not seek ethical guidance on the propriety of creating and using a Facebook account to communicate with investigatory targets.”
In particular, the Disciplinary Board found that the creation, dissemination, and use of a fictitious Facebook account was a disciplinary violation. It is reasonable to assume that the Pennsylvania Supreme Court agreed with this conclusion when it affirmed the board’s recommendations. The board explained that, “The question of whether a prosecutor violates the Rules of Professional Conduct by engaging in covert activity through the use of social media is novel within Pennsylvania's adjudication of disciplinary matters. There is no dispute that covert activity is permitted in criminal investigations; however, attorneys themselves are prohibited from participating in such activity. RPC 8.4(c) broadly prohibits an attorney from engaging in dishonesty, fraud, deceit or misrepresentation. Significantly, Pennsylvania has no express prosecutorial investigation exception that allows prosecutors to engage in activity prohibited by RPC 8.4(c).”
Going further, the board cited “case law from other jurisdictions and Pennsylvania ethics opinions that are not binding precedent on the board or the court, but nonetheless constitute persuasive authority as a matter of first impression.” The board further concluded that the Facebook page “was fake, and constituted fraudulent and deceptive conduct that crossed the boundaries of professional ethics.”
To support its conclusion, the Disciplinary Board report cites Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02, in which the committee concluded that pretextual communication without proper identification is prohibited. According to the opinion, of which I was a principal author, the Rules of Professional Conduct prohibit a “third person, someone whose name the witness will not recognize, to go to the Facebook and Myspace websites, contact the witness and seek to 'friend' her, to obtain access to the information on the pages.”
The Philadelphia opinion also explains that “the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”
The report also cites a 2014 opinion that “reinforced the fact that even the innocuous act of having a third-party send a friend request to a represented party in order to gain access to the private portion of their profile violates” Rule 8.4(c). The opinion is Formal Opinion 2014-300 issued by the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. This widely cited opinion, of which I was a principal author, explains that “Attorneys may also use social media to contact relevant persons in a conflict, but within limitations. As a general rule, if contacting a party using other forms of communication would be prohibited, it would also be prohibited while using social networking websites. … Regardless of the method of communication, Rule 4.2 clearly states that an attorney may not communicate with a represented party without the permission of that party’s lawyer. Social networking websites increase the number of ways to connect with another person but the essence of that connection is still a communication. Contacting a represented party on social media, even without any pretext, is limited by the rules.”
Parks Miller had numerous options before creating the Facebook page. She could have reviewed these, and the multitude of other ethics opinions, that discuss “false social media friending.” She could have consulted private counsel to obtain ethical guidance. Or she could have contacted resources such as the Pennsylvania Bar Association’s Ethics Counsel or the Philadelphia Bar Association’s Professional Guidance Committee Hotline. She chose to take none of those actions.
Instead, Parks Miller assumed that her conduct was an appropriate law enforcement action. She did so apparently unaware that there are no reported disciplinary opinions in Pennsylvania in which an attorney was disciplined after seeking ethical guidance in good faith.
Thus, the public discipline of Parks Miller offers many lessons.
For her, the lesson is that the suspension could have been avoided had she read a few ethics opinions or consulted with another attorney. In addition, contrition is an important consideration in disciplinary matters. Parks Miller was less than candid with the Disciplinary Board, and apparently demonstrated minimal remorse for her actions, only worsening her situation.
For all other Pennsylvania attorneys, the lesson is that although technology, the internet and social media impact how we practice, lawyers must recognize the ethical issues technology creates and seek guidance before taking action. Otherwise, they may find themselves in the same hot water as the Centre County district attorney.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides technoethical guidance, general counsel services, and Disciplinary Board representation for attorneys and law firms. He is the editor of "Fee Agreements in Pennsylvania (6th Edition)" and author of "Changing Law Firms: Ethical Guidance for Pennsylvania Law Firms and Attorneys (Second Edition)," published by the Pennsylvania Bar Institute. He can be reached at email@example.com.