Tuesday, March 3, 2009

Louisiana criminal defense lawyer: ethical violation for blogger/attorney to contact witnesses

Here's one near and dear to my heart: a criminal defense attorney in Louisiana has threatened to file state bar ethics charges against a California attorney and blogger who, in the course of reporting for his blog, contacted a witness in the Louisiana attorney's case.

Here's the story: Patrick Frey is a Los Angeles County Deputy District Attorney. He also has a blog called "Patterico's Pontifications," which features news, analysis, and commentary on subjects including politics, the criminal justice system, and media bias. Frey's blog includes a disclaimer on the front page making clear that his blogging is completely separate from his work as a prosecutor:
The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer.
Frey recently wrote a long and detailed post about allegations that 2 prosecution experts in a Louisiana murder case manufactured evidence that helped send the defendant, Jimmie Duncan, to death row. Frey's post included extensive analysis of the forensic evidence, and the results of an interview he conducted with a prosecution expert witness (who was not accused of manufacturing evidence).

I haven't studied the Duncan allegations enough to have a firm opinion on the allegations of witness misconduct. But suffice it to say that Frey's post is blogging at its best: careful, thorough, informed by his professional experience as a prosecutor, free of invective and name-calling, reluctant to announce definite and sweeping conclusions where only tentative ones are appropriate, and -- in a feat all too rare among bloggers -- his post features actual, original reporting.

Just the kind of "citizen journalism" we should be celebrating and encouraging, no? Well, according to Duncan's appellate attorney: No! Kathy Kelly of the Capital Post-Conviction Project of Louisiana left the following comment on Frey's blog:
I’m am [sic] Mr. Duncan’s lawyer. This case is currently on appeal. You are not the prosecutor, the judge or a forensic expert. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing. As a lawyer you should no [sic] that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.... You are a memeber [sic] of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you. Again you are neither the DA or the JUdge [sic] in this case.
What? It's an ethical violation for an attorney who blogs as a hobby to act exactly as a reporter: interviewing witnesses and seeking relevant documents? On a case in which he has no official involvement as an attorney? Could this possibly be true? It sure would put a crimp in my style!

Well, let's look at the California Rules of Professional Conduct, which Kelly seems to think Frey violated. Frey asked Kelly to identify the particular rule(s) she believes he violated, but she declined to do so, at least publicly. So, I browsed the rules myself, looking to see if there's anything that even arguably applies. Rule 2-100 covers attorneys' contacts with other parties. But it only applies to an attorney "[w]hile representing a client." Frey isn't "representing a client" here; he's blogging. (Not to mention that the witness Frey contacted isn't a "party," and Kelly doesn't even allege that the witness is represented by counsel.) Rule 5-310 is labeled "Prohibited Contact with Witnesses," but it only covers efforts by an attorney to "secrete" witnesses, send them out of state, or pay them for particular testimony, which Frey obviously did not do. In my perusal of the rules, I couldn't find anything else even remotely applicable to Frey's conduct.

In sum, Kelly's threat to file ethics charges against Frey and her demand to "[c]ease immediately" are empty; the notion that he violated any bar ethics rules finds no support in the facts or law. And Frey, to his credit, isn't backing down:
I don’t intend to cease exercising my First Amendment right to speak about matters of legitimate public concern because some lawyer who is mis[re]presenting the content of my post threatens a bogus complaint to my State Bar.
Of course I'm hopelessly biased, but I think many of the best blogs (even on non-legal topics) are written by  attorneys; their research, writing, and analytical skills make them particularly suited to the task, even if they don't consider themselves "journalists." (Yes, yes, they make mistakes like everyone else.) For an attorney like Kelly to threaten bar ethics charges against a blogger/attorney like Frey for the act of contacting a witness to gather and verify information -- activity that should be encouraged in all bloggers, whether or not they ever attended law school -- is both reckless and dangerous. (Not to mention that falsely accusing an attorney of ethics violations can make for a pretty solid defamation case.)

Kelly is presumably trying to save the life of her client. One would think she has better things to do than make meritless charges of ethical transgressions against a blogger -- especially one who happens to have a bar card.

UPDATELegal Ethics Forum is similarly skeptical that Frey has any ethics issues to worry about:

Given that the blogger wasn't representing a client when he made the contact with the witness, I don't see how [ABA Model Rule of Professional Responsibility] 4.2 would apply. Also, I don't think the witness was a client of the lawyer, so even if it did, you'd have no violation. I'm not sure how you get an ethics violation.... Anyone?


  1. It strikes me that if there is any ethics violations it is in the conduct of the accuser.

  2. I'm not sure how you get an ethics violation.... Anyone?

  3. What you must understand is that the accuser's letter really is an accurate sample of what passes the volunteer bar examiners down here. They are required to pass a certain number of candidates, no matter how badly they write or fail to argue. Papers must be destroyed after marking so that later challenges cannot reveal the truly pixxpoor performances of some of the candidates. Nesson in the Tenenbaum matter shows that the emperor wears no clothes, even at HLS. God help us all if this goes on at medical schools as well.


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