In Re: Joyce Nanine McCool , 172 So. 3d 1058 ( 2015 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of June, 2015, are as follows:
BY KNOLL, J.:
2015-B -0284 IN RE: JOYCE NANINE MCCOOL
Upon review of the findings and recommendations of the hearing
committee and the disciplinary board, and considering the record,
briefs, and oral arguments, it is ordered that Joyce Nanine
McCool, Louisiana Bar Number 27026, be and hereby is disbarred.
Her name shall be stricken from the roll of attorneys and her
license to practice law in the State of Louisiana shall be
revoked. All costs and expenses in the matter are assessed
against respondent in accordance with Louisiana Supreme Court
Rule XIX, § 10.1, with legal interest to commence thirty days
from the date of finality of this Court’s judgment until paid.
WEIMER, J., concurs in part and dissents in part and assigns
reasons.
GUIDRY, J., concurs in part and dissents in part.
CRICHTON, J., additionally concurs and assigns reasons.
CANNELLA, J., concurring in part and dissenting in part.
06/30/15
SUPREME COURT OF LOUISIANA
NO. 2015-B-0284
IN RE: JOYCE NANINE MCCOOL
ATTORNEY DISCIPLINARY PROCEEDING
KNOLL, Justice*
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (―ODC‖) against respondent, Joyce Nanine McCool,1 an
attorney licensed to practice law in Louisiana.
UNDERLYING FACTS
The underlying facts of this case are rather complex. By way of background,
respondent was friends with Raven Skye Boyd Maurer (―Raven‖). Following
Raven‘s divorce in 2006, she and her former husband were involved in a bitter
child custody dispute. Raven accused her ex-husband of sexually abusing their two
young daughters, H. and Z.,2 and unsuccessfully sought to terminate his parental
rights in proceedings pending in Mississippi before Judge Deborah Gambrell.3
Respondent is not admitted to the Mississippi Bar and was not admitted pro hac
vice in Raven‘s Mississippi case, but she did offer assistance to Raven as a friend.
*
Retired Judge James L. Cannella, assigned as Justice ad hoc, sitting for Hughes, J., recused.
1
Respondent, a Mandeville attorney, is 52 years of age and was admitted to the practice of law
in Louisiana in 2000.
2
The children‘s names have been redacted from the record of this matter and only their initials
are used to protect and maintain their privacy. All phone numbers and addresses for social
media and internet sites have been redacted as well to further ensure their privacy.
3
To date, no law enforcement agency or court has found any merit to the serious allegations
made against Raven‘s former husband.
Meanwhile, respondent filed a petition in St. Tammany Parish on behalf of
Raven‘s new husband, who sought to adopt H. and Z. The presiding judge, Judge
Dawn Amacker, stayed the intrafamily adoption proceedings pending resolution of
the Mississippi matter. Judge Amacker also declined to exercise subject matter
jurisdiction in response to a motion for emergency custody filed by respondent on
Raven‘s behalf. After Judge Amacker issued her ruling declining to exercise
subject matter jurisdiction, respondent filed a writ application with the First Circuit
Court of Appeal, which was denied.4 On August 31, 2011, this Court likewise
denied writs. Maurer v. Boyd, 11-1787 (La. 8/31/11), 68 So. 3d 517.
Unhappy with the various rulings made by Judge Gambrell and Judge
Amacker and believing those rulings were legally wrong, respondent drafted an
online petition entitled ―Justice for [H] and [Z]‖ which she and Raven posted on
the internet at change.org, along with a photo of the two girls. With regard to the
Mississippi proceeding before Judge Gambrell, the online petition stated:
To Judge Deborah Gambrell, we, the undersigned, ask
that you renounce jurisdiction in this matter to the
Louisiana court because the children have lived
exclusively in Louisiana for the past three years. Their
schools, teachers, physicians, therapists, little sister and
brother and the vast majority of significant contacts are
now in Louisiana. There is also an adoption proceeding
pending in Louisiana over which Louisiana has
jurisdiction and in the interest of judicial economy, and
the best interest of the girls, Louisiana is the more
appropriate forum to oversee ensure [sic] the ―best
interest‖ of the girls are protected. If you refuse to
relinquish jurisdiction to Louisiana, we insist that you
remove the Guardian Ad Litem currently assigned to the
case, and replace him with one that has the proper
training and experience in investigating allegations of
child sexual abuse in custody proceedings. We further
insist that, in keeping [with] S.G. v. D.C. 13 So. 3d. 269
(Miss. 2009), you specifically define the Guardian Ad
Litem‘s role in the suit; require the new Guardian Ad
Litem [to] prepare a written report; require that the report
4
In denying Raven‘s writ application, the court of appeal, with a panel composed of Judges
Guidry, Pettigrew, and Welch, stated: ―[o]n the showing made, we find no error.‖
2
be shared with all parties prior to a hearing; that all
proceeding be conducted on the record, with advance
notice and opportunity to be heard, and that an
evidentiary hearing be conducted to review the
allegations of child sexual abuse, and that no visitation be
allowed until you have seen all of the evidence.
As to Judge Amacker and the Louisiana proceedings, the petition stated:
To Judge Amacker, we, the undersigned, insist that you
withdraw the unlawful stay of the adoption proceedings
currently pending in your court, and, in accordance with
La.Ch.C. art. 1253, a hearing be set with all due speed to
allow the girls‘ stepfather to show why it is in the girls‘
best interest that they be adopted by him, thereby
terminating all parental rights of the girls‘ biological
father.
Respondent re-posted the online petition on her blog site and in online
articles she authored, one of which again included a photo of the two girls. She
provided contact information for the judges‘ offices and this Court, and added
comments in which she solicited and encouraged others to express their feelings to
the judges and this Court about the pending cases:
In spite of overwhelming evidence that the girls have
been abused by their father, the judge in Mississippi,
Judge Deborah Gambrell, of the Chancery Court of
Marion County, Mississippi, refuses to even look at the
evidence, and has now ordered the girls be sent to
unsupervised visitation with their father.
Judge Dawn Amacker, in the 22nd JDC, Division L, for
the Parish of St. Tammany in Louisiana also refused to
protect the girls, even though she has the power and
authority to protect them. RM now has an application to
the LA supreme court, asking that it order Judge
Amacker to protect the children.
Insist that Judge Amacker and Judge Gambrell do their
jobs! If you want more info, go to [website] and read the
writ application to the LA supreme court.
Please sign the petition, circulate it to all of your friends
and families and call Judge Amacker and Judge Gambrell
during the hours of 8:30 to 5:00 starting Monday, August
15 to ask why they won‘t follow the law and protect
these children. Let them know you‘re watching and
expect them to do their job and most of all, make sure
these precious little girls are safe!
3
Call the Louisiana Supreme Court and tell them you want
the law to protect these girls [phone number]. [A]sk
about the writ pending that was filed by attorney Nanine
McCool on Friday, August 12, 2011.
Let‘s turn this around and be [H‘s] hero. Please sign the
Care2 petition and continue to call Judge Gambrell to ask
her why she is unwilling to afford [H] and [Z] simple
justice.
You can sign the petition and lend your voice to this
cause here. Or, you can contact directly. Contact
information is: [provided contact information for the
judges].
In response to the postings made by respondent, on August 14, 2011—two
days prior to a hearing in Mississippi on Raven‘s motion for contempt and to
terminate her former husband‘s parental rights—Judge Gambrell‘s staff received
an e-mail from Heather Lyons, a signer of the online petition. Ms. Lyons stated
she lived and voted in Forrest County, Mississippi, and she would ―be paying
attention‖ to Raven‘s case ―due to the fact that Judge Gambrell refused to hear
evidence of abuse in the case of little girls who are likely being molested by their
father. She has an obligation to protect our most vulnerable children. Please do
not let them down judge!‖
A copy of the online petition and comments thereto was then filed with the
Marion County Chancery Clerk of Court‘s Office (―Marion County Court‖) and
faxed directly to Judge Amacker‘s office in Louisiana, apparently by Raven or her
mother. On August 22, 2011, Judge Amacker had her administrative assistant
return the petition to respondent with instructions respondent caution her client
against ex parte communications with the judge.
Undaunted, respondent continued her online and social media campaign,
further disseminating the sexual abuse allegations and even going so far as to link
4
the audio recordings in which Raven and her children discussed the alleged abuse.5
Respondent also stated (falsely) that no judge had ever heard these recordings
because Judge Gambrell refused to allow the recordings into evidence and Judge
Amacker refused to conduct a hearing:
Listen to their 1st disclosure to Raven: [link to recording]
and a day later, their second: [link to recording]
Now consider that no judge has ever heard those
recordings. Why? Because for 4.5 years, the judges have
simply refuse [sic] to do so. On August 16, 2011, Judge
Deborah Gambrell in the Chancery Court of Marion
County, Mississippi, once again refused to admit all of
Raven‘s evidence, including these recordings, and
ordered that [H] and [Z] have visits with their father in
the house where they both report having been molested
by their father in the past.
Judge Dawn Amacker in the 22nd Judicial District Court
for the Parish of St. Tammany in Louisiana is also
refusing to hear any evidence or to protect [H] and [Z],
even though the law requires her to have a hearing and to
take evidence.
Their dad keeps calling them liars and saying that their
mom is making them say it. All their mom wants is for a
judge to look at ALL the evidence and THEN decide
who to believe. Don‘t you think Judge Gambrell and
Judge Amacker should look at the evidence before they
make [H] and [Z] go back to their father‘s house where
there is no one to protect them except the person they are
most afraid of?
[H] still loves her daddy. She just wants him to stop
doing what he is doing to her. She does not feel safe
with him alone. She said as much in her journal, but
Judge Gambrell refused to allow it as evidence and Judge
Amacker just ignored her.
Sign our petition telling the judges that there can be no
justice for [H] and [Z], or any child, if the law and
evidence is ignored. Tell them they must look at the
5
Pursuant to a September 2, 2008 Agreed Judgment in the Mississippi case, the parties agreed
and were ordered not to disclose any audio or video recordings of the minor children to anyone
except counsel of record and the court, and not to make said recordings available to anyone
except the appropriate investigatory agencies at their request. Respondent argues the Agreed
Judgment does not bind her because she is not a party to the Mississippi proceeding, or counsel
in the proceeding, or even an attorney licensed to practice law in Mississippi.
5
evidence before they make a decision that will affect the
rest of [H] and [Z]‘s lives. Ask yourself, what if these
were your daughters?
Have questions want to do more to help? Email us at
[address] and someone will respond within 24 hours.
Want to see more, go to [website] and read the writ
submitted to the Louisiana Supreme Court on August 12,
2011.
Horrified? Call the judges and let them know:
[contact information provided]
Respondent also used her personal Twitter account to promote the online
petition and to otherwise draw attention to the audio recordings and the manner in
which the judges were handling the cases. On August 16, 2011, the day of the
Mississippi hearing, respondent tweeted 30 messages about the case and petition,
including:
I realize most of u think the courts care about kids but too
often there‘s no walk to go with the talk: [link to online
petition].
Shouldn‘t judges base decisions about kids on evidence?:
[link to online petition].
GIMME GIMME GIMME Evidence! Want some? I got
it. Think u can convince a judge to look at it? Sign this
petition: [link to online petition].
Judges are supposed to know shit about … the law …
aren‘t they. And like evidence and shit? Due process?
[link to online petition].
I am SO going 2 have 2 change jobs after this …! I‘m
risking sanctions by the LA supreme court; u could be a
HUGE help.
The very next day, she tweeted: ―Make judges protect [H] and [Z] from abuse by
their father!: [link to online petition].‖
On August 24, 2011, respondent tweeted a local investigative news
organization should ―focus ur lens on Y Judge Amacker won‘t protect these
girls…‖ and ―ask Judge Amacker why she won‘t listen.‖ Respondent also
provided links to the audio recordings and the online petition in numerous tweets,
6
asking various national news/media outlets and celebrities from Dateline to Oprah
inquire ―why 2 girls can‘t get a judge to listen to this.‖ Another tweet said, ―Judge
Gambrell at it again – turned a 4 YO child over to a validated abuser – PLEASE
TELL ME WHAT IT WILL TAKE FOR EVERYON [sic] TO SAY ‗ENOUGH‘.‖
These online articles and postings by respondent contain numerous false,
misleading, and inflammatory statements about the manner in which Judge
Gambrell and Judge Amacker were handling the pending cases. But respondent
denies any responsibility for these misstatements, contending these were ―Raven‘s
perceptions of what had happened‖ and respondent was simply ―helping [Raven]
get her voice out there.‖ For example:
 In an article entitled ―Make Louisiana and Mississippi Courts
Protect HB and ZB!‖ it is alleged the children were being sexually
abused by their father and in spite of ―overwhelming‖ evidence,
Judge Gambrell ―refuses to even look at the evidence, and has now
ordered the girls be sent to unsupervised visitation with their
father.‖ This allegation refers to journals written by H., which
Judge Gambrell excluded from evidence. Judge Gambrell gave
reasons for her evidentiary rulings, but in any event, she did not
simply ―refuse‖ to look at the evidence. As for Judge Amacker, it
is alleged she ―refused to protect the girls, even though she has the
power and authority to protect them.‖ Judge Amacker did not
refuse to protect the minor children, but rather, she stayed
proceedings in Louisiana because related proceedings were already
pending in Mississippi.
 In an article entitled ―Justice for [H] and [Z],‖ it was alleged the
children were being sexually abused by their father, and the
children‘s mother had evidence of the abuse, including an audio
recording and video evidence, but this evidence ―was excluded
from consideration on one legal technicality or another‖ by Judge
Gambrell. Once again, Judge Gambrell‘s evidentiary rulings were
not arbitrary or capricious. She gave reasons for her evidentiary
rulings and did not simply ―refuse‖ to look at the evidence.
7
 In a posting on her online blog, respondent linked to audio
recordings of the minor children speaking to their mother about
alleged sexual abuse by their father, contrary to the September 2,
2008 Agreed Judgment in the Mississippi proceedings. See supra,
note 5. Respondent‘s blog stated no judge had ever heard the
recordings because ―for 4.5 years, the judges have simply refuse
[sic] to do so. On August 16, 2011, Judge Deborah Gambrell in
the Chancery Court of Marion County, Mississippi once again
refused to admit all of Raven‘s evidence, including these
recordings, and ordered that [H] and [Z] have visits with their
father in the house where they both report having been molested by
their father in the past.‖ However, respondent later acknowledged
the audio recordings were not offered into evidence at the August
16, 2011 hearing. In fact, the audio recordings were not even
brought to court that day. Furthermore, the audio recordings have
never been offered into evidence in any proceeding before Judge
Gambrell. In the same blog, respondent stated Judge Amacker ―is
also refusing to hear any evidence or to protect [H] and [Z], even
though the law requires her to have a hearing and to take
evidence.‖ However, Judge Amacker did not refuse to have a
hearing; she declined to exercise jurisdiction because related
domestic proceedings were already pending in Mississippi. Judge
Amacker‘s ruling was upheld when both the court of appeal and
this Court denied writs. Maurer, supra.
Subsequently, respondent filed motions to recuse Judge Amacker in two
matters unrelated to Raven‘s case. In response, Judge Amacker signed orders
stating she was ―voluntarily recus[ing herself] due to the possibility that the judge
may be called as a witness‖ in disciplinary proceedings against respondent, ―and
out of an abundance of caution and to avoid the appearance of impropriety.‖
Notwithstanding the judge‘s stated reasons for her recusal, respondent filed two
more motions for recusal in which she stated Judge Amacker had ―voluntarily and
expressly admitted [her] extreme bias and conflict in recusing [herself] in several
8
other cases, which grounds are equally applicable in the case at bar.‖ [Emphasis
added.] Respondent testified this was not an untruthful statement because in her
view, the mere fact Judge Amacker had voluntarily recused herself was an express
admission by Judge Amacker of bias against her. She also noted Judge Amacker
had not denied any of the allegations respondent made in the motions to recuse, nor
did Judge Amacker impose sanctions against her or file a disciplinary complaint
against her. These facts further reinforced respondent‘s view Judge Amacker had
admitted being biased against her.
On September 14, 2011, Judge Gambrell signed an order commanding
respondent to appear before the Marion County Court on October 5, 2011, to show
cause why she should not be held in contempt of court by disclosing information
from a ―sealed‖ record. Respondent received a copy of the notice of the contempt
hearing by regular United States mail; however, she did not appear, contending she
was not properly served and the Mississippi court did not have jurisdiction over
her. On October 6, 2011, Judge Gambrell signed an order holding respondent in
contempt of court. In October 2012, Judge Gambrell rescinded the order of
contempt because ―service of process was insufficient … and though violations of
this Court‘s order relating to disclosure of audio transcriptions may have taken
place, the Court is without authority to hold said Joyce Nanine McCool in
contempt of this Court.‖ In January 2013, Judge Gambrell sua sponte recused
herself from further action in Raven‘s case ―in accordance with the Mississippi
Code of Judicial Conduct Canon 3 and to avoid the appearance of impropriety or
bias.‖
DISCIPLINARY PROCEEDINGS
In September 2011, Judge Gambrell filed a complaint against respondent
with the ODC. Judge Amacker also provided information in connection with the
ODC‘s investigation. In May 2014, the ODC filed one count of formal charges
9
against respondent, alleging her conduct as set forth above violated Rules 3.5(a)(a
lawyer shall not seek to influence a judge by means prohibited by law), 3.5(b)(a
lawyer shall not communicate ex parte with a judge during the proceeding),
8.4(a)(it is professional misconduct for a lawyer to violate or attempt to violate the
Rules of Professional Conduct, knowingly assist or induce another to do so, or do
so through the acts of another), 8.4(c)(it is professional misconduct for a lawyer to
engage in dishonesty, fraud, deceit, or misrepresentation), and 8.4(d)(it is
professional misconduct for a lawyer to engage in conduct prejudicial to the
administration of justice) of the Rules of Professional Conduct.
Respondent answered the formal charges by denying any misconduct and
asserting her actions are protected by the First Amendment. In her pre-hearing
memorandum, respondent admitted she ―did implore the electorate to communicate
accountability to its elected judges‖ and ―asked publically [sic] elected judges to
‗look at the evidence,‘ ‗protect children,‘ and ‗apply the law‘,‖ but she denied this
constituted ethical misconduct. Respondent also filed an exception of vagueness
and a motion for more specific allegations of misconduct. The ODC opposed the
exception and motion, arguing the formal charges give respondent fair and
adequate notice of the alleged misconduct. Following a telephone conference
conducted on December 11, 2013, the chair of the hearing committee denied the
exception and motion.
On January 10, 2014, respondent directed discovery to the ODC seeking a
listing of each and every specific act or omission, which the ODC alleged to
constitute a violation of the Rules of Professional Conduct, the date of each and
every such act or omission, and the specific Rule purportedly violated by each such
act or omission. The ODC responded to the discovery request, but refused to
provide any additional information, noting the chair‘s previous ruling denying the
exception of vagueness and the motion for more specific allegations of
10
misconduct. Respondent then filed a motion to compel the ODC to provide the
requested information. Following a telephone conference conducted on February
11, 2014, the chair denied the motion to compel. Consequently, respondent filed a
petition for writ of mandamus in this Court, seeking to compel the ODC to provide
more specific details of the alleged misconduct set forth in the formal charges. She
also sought a stay of the hearing on the formal charges set for February 27, 2014.
We denied respondent‘s writ and her request for a stay on February 21, 2014. In
re: McCool, 14-0366 (La. 2/21/14), 133 So. 3d 669 (Hughes, J., recused).
Formal Hearing
The hearing committee conducted a two-day hearing on February 27, 2014,
and March 27, 2014. Therein, the ODC called Judge Amacker and Judge Gambrell
to testify before the committee. Respondent testified on her own behalf and was
cross-examined by the ODC. During her testimony, respondent repeatedly denied
she violated the Rules of Professional Conduct. Instead, she suggested her conduct
was justified by what the judges had done in the underlying cases and in the
interest of protecting the minor children:
Q. What does the law say, if anything, you can do after
[the Supreme Court denies writs]? I mean you‘ve
exhausted what the law allows you to do. What is your
recourse then under the law?
A. Weep for the children.
Q. Okay. Can you cite me a law that says you can take to
an online campaign to try to get the Judge‘s [sic] to
change their mind?
A. This is the United States of America. The land of the
free. The home of the brave. Cite me a law that says I
can‘t.
Q. The rules that you are charged with are in the formal
charges.
A. They do not say that I can‘t take – I cannot assist a
client to craft an online petition seeking whatever help
11
she can to protect her children because the legal system
absolutely failed her –
Q. Ms. McCool –
A. – because the Judge‘s [sic] and the processes will not
follow the law, will not obey the law, but hold us to the
letter of the law.
Hearing Committee Report
After considering the evidence and testimony presented at the hearing, the
hearing committee made factual findings generally consistent with the facts set
forth above. Based on these facts, the committee determined respondent violated
the Rules of Professional Conduct as follows:
Rules 3.5(a), 3.5(b), and 8.4(a) – Respondent used the internet, an online
petition, and social media to spread information, some of which was false,
misleading, and inflammatory, about Judge Gambrell‘s and Judge Amacker‘s
handling of and rulings in pending litigation. Respondent circulated contact
information for Judge Gambrell and Judge Amacker and solicited and encouraged
others to make direct, ex parte contact with the judges to express their feelings
about the pending cases, and attempted to influence the outcome of the pending
cases. The clear intent of respondent‘s online campaign was an attempt to
influence the judges‘ future rulings in the respective cases, and to do so through
improper ex parte communication directed at the judges.
Rule 8.4(c) – Respondent disseminated false, misleading, and inflammatory
information on the internet and through social media about Judge Gambrell and
Judge Amacker and their handling of these pending domestic proceedings. She
also instructed others to sign and circulate an online petition, and to call the judges
and let them know they are ―watching‖ them and are ―horrified‖ by their rulings.
Finally, respondent made blatantly false statements about Judge Amacker in
multiple motions to recuse.
12
Rule 8.4(d) – Respondent used the internet and social media in an effort to
influence Judge Gambrell‘s and Judge Amacker‘s future rulings in pending
litigation. Respondent‘s conduct threatened the integrity and independence of the
court and was clearly prejudicial to the administration of justice. Respondent also
used her Twitter account to publish tweets linking the audio recordings of the
minor children discussing alleged sexual abuse; to publish false, misleading, and
inflammatory information about Judge Gambrell and Judge Amacker; and to
promote the online petition, all of which was designed to intimidate and influence
the judges‘ future rulings in the underlying proceedings.
The committee determined respondent violated a duty owed to the public
and the legal system. She acted knowingly, if not intentionally. She caused actual
and potential harm by threatening the independence and integrity of the judicial
system, and causing the judges concern for their personal safety and well-being.
The applicable baseline sanctions, therefore, range from suspension to disbarment.
In aggravation, the committee found a dishonest or selfish motive, a pattern
of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of
the conduct, and substantial experience in the practice of law (admitted 2000). In
mitigation, the committee found respondent has no prior disciplinary record.
Considering this Court‘s prior jurisprudence addressing similar misconduct,
the committee recommended respondent be suspended from the practice of law for
one year and one day. The committee further recommended respondent be
required to attend the Louisiana State Bar Association‘s Ethics School (―Ethics
School‖) and assessed with the costs and expenses of this proceeding.
Respondent filed a brief with the disciplinary board objecting to the hearing
committee‘s report and recommendation.
Disciplinary Board Recommendation
13
After review, the disciplinary board determined the hearing committee‘s
factual findings are supported by the record and are not manifestly erroneous.
Based on these facts, the board agreed the committee correctly applied the Rules of
Professional Conduct to the facts, except the board declined to find respondent
engaged in ex parte communications with a judge, in violation of Rule 3.5(b). The
board reasoned respondent did not have direct contact with either Judge Gambrell
or Judge Amacker, and thus, no violation of Rule 3.5(b) occurred. Nevertheless,
by circulating contact information for the judges and soliciting non-lawyer
members of the public to make direct contact with the judges regarding a matter
pending before them, respondent encouraged the public to do what she is forbidden
to do by Rule 3.5(b). As such, she violated Rule 8.4(a) by attempting to
communicate with Judge Gambrell and Judge Amacker ―through the acts of
another.‖
By her own admission, respondent was unhappy with the decisions rendered
in the matters she was litigating. After her legal options were exhausted, she
decided to launch a social media campaign to influence the presiding judges.
Consequently, respondent knowingly, if not intentionally, spearheaded a social
media blitz in an attempt to influence the judiciary.
The board determined respondent violated duties owed to the public and the
legal system by making false, misleading, and inflammatory statements about two
judges. She did so as part of a pattern of conduct intended to influence the judges‘
future rulings in pending litigation. Considering the ABA‘s Standards for
Imposing Lawyer Sanctions (―ABA Standards‖), the board determined the baseline
sanction is suspension.
In aggravation, the board found a dishonest or selfish motive, a pattern of
misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the
14
conduct, and substantial experience in the practice of law. In mitigation, the board
found respondent has no prior disciplinary record.
After further considering respondent‘s misconduct in light of this Court‘s
prior jurisprudence, the board adopted the committee‘s recommendation
respondent be suspended from the practice of law for one year and one day,
required to attend Ethics School, and assessed with the costs and expenses of this
proceeding.
Respondent filed an objection to the disciplinary board‘s recommendation.
Accordingly, the case was docketed for oral argument pursuant to Louisiana
Supreme Court Rule XIX, § 11(G)(1)(b).
DISCUSSION
Bar disciplinary matters come within the exclusive original jurisdiction of
this Court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and
conduct an independent review of the record to determine whether the alleged
misconduct has been proven by clear and convincing evidence. La. Sup. Ct. R.
XIX, § 11(G); In re: Banks, 09-1212, p. 10 (La. 10/2/09), 18 So. 3d 57, 63. While
we are not bound in any way by the findings and recommendations of the hearing
committee and disciplinary board, we have held the manifest error standard is
applicable to the committee‘s factual findings. Banks, 09-1212 at p. 10, 18 So. 3d at
63; see also In re: Caulfield, 96-1401 (La. 11/25/96), 683 So. 2d 714.
At the outset, we note the ODC‘s formal charges in this case are somewhat
confusing. Rather than separating out the allegations and rule violations into
multiple counts, the ODC chose to combine all the factual allegations into a single
count spanning eighteen pages. In an effort to clarify the matter, we have divided
the allegations into three broad categories: (1) improper ex parte communications;
(2) dissemination of false and misleading information; and (3) conduct prejudicial
to the administration of justice. We will address each category in turn.
15
Improper Ex Parte Communication
The ODC‘s allegations in this area relate to respondent‘s use of the internet
and social media to disseminate information about the manner in which Judge
Gambrell and Judge Amacker handled the child custody and visitation cases at
issue, in an apparent attempt to marshal public opinion against these judges and
attention from this Court. According to the ODC, this conduct violated Rules
3.5(a) and (b) and Rule 8.4(a) of the Rules of Professional Conduct.
Rule 3.5 provides:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or
other official by means prohibited by law;
(b) communicate ex parte with such a person during the
proceeding unless authorized to do so by law or court
order;
Rule 8.4(a) provides:
It is professional misconduct for a lawyer to:
Violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or
do so through the acts of another.
The ODC alleges respondent violated these rules by using ―the internet and
social media to elicit outrage in the general public and to encourage others to make
direct contact with judges in an effort to influence their handling of pending
cases.‖ Respondent, however, takes the position her comments were only intended
to encourage the public to remind the judges to do justice in this case by listening
to the evidence and applying the law. Nonetheless, the hearing committee made a
finding of fact that respondent‘s clear intent was to influence the judges‘ future
rulings in this case through ex parte communication directed specifically at the
judges. In support, the committee cited the following examples of respondent‘s
actions:
16
• Please sign the petition, circulate it to all of your friends
and families and call Judge Amacker and Judge Gambrell
during the hours of 8:30 to 5:00 starting Monday, August
15 to ask why they won‘t follow the law and protect
these children. Let them know you‘re watching and
expect them to do their job and most of all, make sure
these precious little girls are safe!
• Call the Louisiana Supreme Court and tell them you
want the law to protect these girls? [phone number] [A]sk
about the writ pending that was filed by attorney Nanine
McCool on Friday, August 12, 2011.)
• Let‘s turn this around and be [H‘s] hero. Please sign the
Care2 petition and continue to call Judge Gambrell to ask
her why she is unwilling to afford [H] and [Z] simple
justice.
• You can sign the petition and lend your voice to this
cause here. Or, you can contact directly. Contact
information is: [provided contact information for the
judges and their staff].
• Sign our petition telling the judges that there can be no
justice for [H] and [Z], or any child, if the law and
evidence is ignored. Tell them they must look at the
evidence before they make a decision that will affect the
rest of [H] and [Z‘s] lives. Ask yourself, what if these
were your daughters?... Horrified? Call the judges and let
them know.
We agree the examples clearly and convincingly establish respondent
solicited the public to contact the presiding judges and this Court. Although
respondent asserts ―the admonitions in the petitions did nothing other than ensure
that both parties would receive the same treatment—a hearing based on the law
and evidence,‖ the evidence shows she used the internet and social media to solicit
and encourage others to make direct, ex parte contact with Judge Gambrell, Judge
Amacker, and this Court in an effort to influence their and our decisions in sealed,
pending domestic litigations.
Moreover, when the petition was printed and faxed to the Marion County
Court and Judge Amacker‘s office, it became ex parte communication between the
17
judiciary and all signatories just as if it were a signed letter. And the first signatory
on both printed petitions was respondent: ―1. Nanine McCool Lacombe, LA.‖
Although not directly responsible for its delivery, respondent, by signing the
petition, ―lent her voice to the cause‖ along with the rest of the signatories, making
the petition her own and, in turn, communicating directly to the judges and this
Court, in its entirety:
LA Supreme Court; Judge Dawn Amacker; Judge
Deborah Gambrell
We, the undersigned, insist that you ensure that the two
little girls who are the subject of the case [], pending in
the 22nd JDC, St. Tammany Parish Louisiana, and the
case [], pending in the Chancery Court of Marion County
Mississippi, are afforded all legal protections, including a
full evidentiary hearing, to ensure that they are protected
from abuse.
To the Louisiana Supreme Court, we, the undersigned,
ask that you issue emergency writs, ordering the courts
below to exercise emergency jurisdiction over the two
small girls until, based on all the evidence available, it is
established by clear and convincing evidence, that the
little girls subject to these proceedings are being
protected from further abuse, including ordering the Hon.
Dawn Amacker, Judge, Division L, 22nd JDC, Parish of
St. Tammany, to lift the unlawful stay of the adoption
proceedings and to set an evidentiary hearing at all due
speed, allowing the girls‘ stepfather to show why it is in
the girls‘ best interest that he be allowed to adopt them.
To Judge Amacker, we, the undersigned, insist that you
withdraw the unlawful stay of the adoption proceedings
currently pending in your court, and, in accordance with
La.Ch.C. art. 1253, a hearing be set with all due speed to
allow the girls‘ stepfather to show why it is in the girls‘
best interest that they be adopted by him, thereby
terminating all parental rights of the girls‘ biological
father.
To Judge Deborah Gambrell, we, the undersigned, ask
that you renounce jurisdiction in this matter to the
Louisiana court because the children have lived
exclusively in Louisiana for the past three years. Their
schools, teachers, physicians, therapists, little sister and
brother and the vast majority of significant contacts are
now in Louisiana. There is also an adoption proceeding
pending in Louisiana over which Louisiana has
18
jurisdiction and in the interest of judicial economy, and
the best interest of the girls, Louisiana is the more
appropriate forum to oversee ensure [sic] the ―best
interest‖ of the girls are protected. If you refuse to
relinquish jurisdiction to Louisiana, we insist that you
remove the Guardian Ad Litem currently assigned to the
case, and replace him with one that has the proper
training and experience in investigating allegations of
child sexual abuse in custody proceedings. We further
insist that, in keeping [with] S.G. v. D.C. 13 So. 3d 269
(Miss. 2009), you specifically define the Guardian Ad
Litem‘s role in the suit; require the new Guardian Ad
Litem [to] prepare a written report; require that the report
be shared with all parties prior to a hearing; that all
proceedings be conducted on the record, with advance
notice and opportunity to be heard, and that an
evidentiary hearing be conducted to review the
allegations of child sexual abuse, and that no visitation be
allowed until you have seen all of the evidence.
Thank you for your consideration and for protecting HB
and ZB!
This petition is not just a communication from the electorate to its elected
judges to ―look at the evidence,‖ ―protect children,‖ and ―apply the law,‖ it is a
directive asking and insisting the judges and this Court:
• issue emergency writs
• order[] lower courts below exercise emergency
jurisdiction
• order[] [Judge] Amacker to lift the unlawful stay
• set … a hearing at all due speed
• withdraw the unlawful stay
• terminat[e] all parental rights of the girls‘ biological
father
• renounce jurisdiction
• remove the Guardian Ad Litem
• replace [the Guardian Ad Litem]
• define the Guardian Ad Litem‘s role in the suit
• require the new Guardian Ad Litem prepare a written
report
19
• conduct all proceedings … on the record
• conduct an evidentiary hearing … to review the
allegations of child sexual abuse
• disallow visitation … until [the judge] ha[s] seen all of
the evidence
By its very language, the petition implores the judges to review/see ―ALL‖ the
evidence irrespective of the rules of evidence and the judges‘ discretionary
gatekeeping function conferred therein and likewise sets forth in explicit detail the
specific manner in which the petitioners want the judges and this Court to ―apply‖
and ―follow‖ the law—essentially a quest for mob justice or rather ―trial by
internet.‖
Respondent claims her postings are not ex parte communication because
first and foremost we encourage people to draw their own
conclusions. We gave them the information, we gave
them the evidence and we said form your own opinion,
and then if you feel strongly about it share your opinion,
your independent opinion of that with the judge…. But I
don‘t consider it an ex parte communication unless I told
all those people this is what you need to tell them, and I
didn‘t.
However, the postings belie her depiction and speak for themselves:
• Insist that Judge Amacker and Judge Gambrell do their
jobs!
• Call Judge Amacker and Judge Gambrell … to ask why
they won‘t follow the law and protect these children.
• Let them know you‘re watching and expect them to do
their job and most of all, make sure these precious little
girls are safe!
• Call the Louisiana Supreme Court and tell them you
want the law to protect these girls….
• Continue to call Judge Gambrell to ask her why she is
unwilling to afford [H] and [Z] simple justice.
• Tell[] the judges that there can be no justice for [H] and
[Z], or any child, if the law and evidence is ignored.
20
• Tell them they must look at the evidence before they
make a decision that will affect the rest of [H] and [Z‘s]
lives.
• Ask Judge Amacker why she won‘t listen
Just as in the petition, respondent gives explicit directives to the public on how to
voice ―concern‖ and ―horror‖ to the presiding judges.
As to this Court, respondent repeatedly admitted she sought to bring this
case to our attention through the elicited phone calls because this Court is a ―policy
court‖:
Q. And while the writ was pending at the Supreme Court
you encouraged people to call them also?
A. Yes. To let them know that they were concerned
because it‘s a Policy Court.
Q. Do you still think that‘s appropriate conduct today for
an attorney to encourage people to contact a Court and
ask them and voice their opinions about pending cases?
A. To – yes. I do.
Q. Okay. And do you think it‘s perfectly okay, even
today, for you to encourage that and to solicit that?
A. Yes. They‘re elected officials. They are responsible –
they are responsive and responsible to the people they
serve. And if they don‘t know that people aren‘t
concerned – The Supreme Court is a Policy Court. It
responds to things that they believe are important social
trends. So, yes, I do believe it‘s important that the
Supreme Court be aware that this is an important issue
for people in the community. And the number that was
provided is the Clerk of Court‘s number.
We also note the petition was drafted and posted on more than one internet
site when the matter was pending before this Court on writs and just days before
Judge Gambrell held her first hearing in the custody matter in Mississippi on
August 16, 2011. The pleas to ―call Judge Amacker and Judge Gambrell during
the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won‘t follow
the law and protect these children‖ and ―call the Louisiana Supreme Court … and
21
ask about the writ pending that was filed by [respondent]‖ were made, therefore,
for the sole purpose of improperly influencing the courts‘ future rulings to gain a
tactical advantage in the pending underlying litigation. In her sworn statement,
respondent even explained:
I guess I see judges as public officials. If I understand
this correctly they‘re elected both in Mississippi and
Louisiana. They answer to the public. The public has a
right to tell them how they feel. And I guess – oh boy,
I‘m getting on a soap box now, when the judicial – when
it comes to the judiciary they have such incredible
immunity that they somehow feel like they don‘t have to
answer to the public. And I feel strongly that particularly
when it comes to family law that hearing from people
about what‘s going on is a part of what will make them
better judges.
As the record reveals, one of the signatories, Heather Lyons, not only
emailed Judge Gambell on August 14, 2011—just two days before the August 16,
2011 hearing—she also apparently called Judge Gambell at home, ―[a]ccusing
[her] of being a person who supports child predators or whatever.‖ Judge Amacker
testified her office received ―hundreds‖ of calls regarding the petitions, while
Judge Gambell testified she even mentioned on the record in the August 16, 2011
hearing ―that numerous people were calling and that they should not do that.‖ Both
viewed the petition as an attempt to threaten, intimidate, and/or harass them into
handling the case in the manner the petitioners wanted, and they both felt
threatened. Specifically, Judge Gambell explained:
Q. Judge, did you receive any calls or view anything in
the petition or these comments that we‘ve looked at
already that ever gave you any cause for concern for your
personal safety?
A. Yes, sir. The kind of work that we do in this court
places you in a situation where somebody is going to win
most of time and somebody‘s going to lose…. So that
concerned me that all these people are being told to call
me. You could easily Google map me; find out where I
am and it really – I was really concerned because I had
just gotten into the case and before I could even do what
I needed to do, I was being harassed by phone calls and
22
then this Twitter and all this other stuff. It did not make
sense to me, but I was concerned about my safety.
When asked a similar question regarding whether she had personally received any
telephone calls, Judge Amacker responded:
Let me see if I can break that down just to be
accurate. I – no. We have things put in place at our
offices that no one ever gets to me as the Judge without it
first being vetted through usually my secretary and my
staff attorney. So if there‘s ex–parte communications
that come in, and we get a lot in Family Court. You get a
lot of angry people and people calling in and it happens.
Those never get to the Judge.
So I can‘t tell you who called, what they said,
these types of things of who called in. I can say that
hundreds of members of the public and attorneys have
stopped by or called to let us know this was on the
internet out of concern; out of concern for us. They just
wanted to let my staff know or me know. Stop me on the
street, in the hallway, whatever, out of concern and
horror – the horrified was the public and the attorneys
that saw this. And still are.
Reviewing all the evidence, we conclude the telephone calls, the email, and
the faxed petitions constitute prohibited ex parte communication induced and/or
encouraged by respondent. Coupled with her social media postings, we further
conclude respondent‘s online activity amounted to a viral campaign to influence
and intimidate the judiciary, including this Court, in pending, sealed domestic
litigations by means prohibited by law and through the actions of others.
Accordingly, we find the evidence clearly and convincingly shows respondent‘s
conduct in this regard violated Rules 3.5(a) and (b) and Rule 8.4(a) of the Rules of
Professional Conduct.
Dissemination of False and Misleading Information
The ODC alleges respondent ―disseminated false, misleading and/or
inflammatory information through the internet and social media about Judge
Deborah Gambrell and Judge Dawn Amacker in pending cases wherein
Respondent was counsel of record and/or had a personal interest.‖ It further
23
alleges respondent ―also made false and misleading statements in multiple motions
to recuse Judge Amacker.‖ The ODC concludes these actions violate Rule 8.4(c).
Rule 8.4(c) provides:
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit
or misrepresentation.
In finding respondent violated this rule, the hearing committee made several
specific factual findings:
(1) Respondent stated Judge Gambrell ignored ―overwhelming
evidence‖ of abuse and ―refuses to even look at the evidence,
and has now ordered the girls be sent to unsupervised
visitation with their father.‖ The committee found
respondent‘s statement was a ―gross mischaracterization‖ of
the facts.
(2) Respondent stated Judge Amacker ―in Louisiana also refused
to protect the girls, even though she has the power and
authority to protect them ...‖ The committee found this
statement was false and inflammatory, as Judge Amacker did
not refuse to protect the children, but instead stayed the
Louisiana proceedings on the ground related proceedings
were already pending in Mississippi.
(3) Respondent posted audio recordings of the minor children
purportedly talking about abuse and stated that on August 16,
2011, Judge Gambrell ―once again refused to admit all of
Raven‘s evidence, including these recordings, and ordered
that [H] and [Z] have visits with their father in the house
where they both report having been molested by their father
in the past.‖ The committee found this statement was clearly
false, as the tapes were not offered into evidence on August
16, 2011; therefore, Judge Gambrell could not have ―refused
to admit‖ them.
(4) Respondent stated, ―Judge Dawn Amacker in the 22 nd
Judicial District Court for the Parish of St. Tammany in
Louisiana is also refusing to hear any evidence or to protect
[H] and [Z], even though the law requires her to have a
hearing and to take evidence.‖ The committee found this
statement was false, because Judge Amacker had stayed the
Louisiana proceedings in light of the Mississippi proceeding.
(5) Respondent stated the Louisiana court (Judge Amacker
presiding) ―has voluntarily and expressly admitted its
extreme bias and conflict in recusing itself in two other
cases, which grounds are equally applicable in the case at
24
bar.‖ The committee found this statement was false, as
Judge Amacker‘s judgment stated, ―[t]he Court hereby
voluntarily recuses itself due to the possibility that the judge
may be called as a witness in the proceedings referenced by
counsel, and out of an abundance of caution and to avoid the
appearance of impropriety.‖
In her brief, respondent takes the position she did not make any knowingly
false statements. While respondent acknowledges she may have made some
factual mistakes, such as with regard to the admission of the audio tapes, she
claims this does not amount to making an intentionally false statement. She further
contends her characterization of the judges‘ actions in this case was not false, but
simply based on her subjective analysis of their actions.
However, we find the record evidence supports the ODC‘s charges in this
regard. Respondent‘s online posting and twitter feeds are littered with
misrepresentations and outright false statements. Although she claims they were
not made intentionally, respondent even concedes to the misrepresentations.
Moreover, even after learning of the ―mistakes‖ through her own review of the
underlying records, respondent made no attempt to remedy them, but merely took
the position they were her client‘s subject view of the proceedings, raising the level
of her continuous posting and twitter conduct from a simple mischaracterization
into a knowing and arguably intentional dissemination of false information. This is
particularly true regarding the judges‘ ―refusal‖ to ―hear,‖ ―view,‖ or ―admit‖
evidence, namely the audio recordings, which were never offered into evidence at
any proceeding before either Judge Gambrell or Judge Amacker.
Regarding the recusal notices, the signed orders of recusal contain no
express admissions of ―extreme bias.‖ Respondent attempts to excuse her
statements as merely her subjective interpretation of Judge Amacker‘s action in
recusing herself, arguing the recusal itself is an expression of bias. Moreover, she
styles her motion to recuse a pleading, casting Judge Amacker as the adverse party,
25
and argues that by not outright denying the allegations therein, Judge Amacker
essentially admitted to the extreme bias. Rather than an answer, however, Judge
Amacker‘s recusal is an order of the court, and as well established, those matters
not expressly granted in a judgment or order of a court are considered denied. M.J.
Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 12 (La. 7/1/08), 998 So. 2d 16, 26
(relief sought presumed denied when judgment silent as to claim or demand).
Accordingly, we find the evidence clearly and convincingly shows respondent‘s
repeated false statements concerning Judge Amacker‘s ―expressly admitted
extreme bias‖ were not mere misrepresentations, but false statements knowingly
and intentionally made. Accordingly, we find the evidence clearly and
convincingly shows a violation of Rule 8.4(c) of the Rules of Professional
Conduct.
Conduct Prejudicial to the Administration of Justice
Lastly, the ODC alleges respondent‘s overall conduct – utilizing the internet
and social media both in an attempt to influence the judges and to expedite
achievement of her goals in the case – was prejudicial to the administration of
justice and violated Rule 8.4(d).
Rule 8.4(d) provides:
It is professional misconduct for a lawyer to:
(d) Engage in conduct that is prejudicial to the
administration of justice.
In determining respondent violated this rule, the hearing committee found:
Respondent used the internet and social media in an
effort to influence Judge Gambrell‘s and Judge
Amacker‘s future rulings in pending litigation.
Respondent‘s conduct threatened the independence and
integrity of the court and was clearly prejudicial to the
administration of justice.
Respondent also used her Twitter account to publish
multiple tweets linking the audio recordings of the minor
children discussing alleged sexual abuse; to publish false,
26
misleading and inflammatory information about Judge
Gambrell and Judge Amacker, and to promote the online
petition, all of which was designed to intimidate and
influence the judges‘ future rulings in the underlying
proceedings.
Respondent knowingly if not intentionally embarked on a
campaign using internet, social media and ex parte
communication specifically designed to intimidate and to
influence the judges‘ future rulings in pending litigation.
Her online campaign to influence judges in pending
litigation threatened the independence and integrity of the
judiciary. Respondent‘s conduct also caused the judges
concern for their personal safety.
In her brief, respondent asserts there is no evidence any of her statements were
intended to be intimidating or threatening to the judges. Rather, she claims her
statements were within the scope of the First Amendment and were intended to
―encourage the public, to extoll their elected judges to do justice, listen to the
evidence, apply the law, and protect children.‖
We disagree and take strong exception to respondent‘s artful attempt to use
the First Amendment as a shield against her clearly and convincingly proven
ethical misconduct. As the United States Supreme Court noted in Gentile v. State
Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720 (1991):
It is unquestionable that in the courtroom itself,
during a judicial proceeding, whatever right to ―free
speech‖ an attorney has is extremely circumscribed. An
attorney may not, by speech or other conduct, resist a
ruling of the trial court beyond the point necessary to
preserve a claim for appeal. Sacher v. United States, 343
U.S. 1, 8, 72 S. Ct. 451, 454, 96 L. Ed. 717 (1952)
(criminal trial); Fisher v. Pace, 336 U.S. 155, 69 S. Ct.
425, 93 L. Ed. 569 (1949) (civil trial). Even outside the
courtroom, a majority of the Court in two separate
opinions in the case of In re Sawyer, 360 U.S. 622, 79
S. Ct. 1376, 3 L. Ed. 2d 1473 (1959), observed that lawyers
in pending cases were subject to ethical restrictions on
speech to which an ordinary citizen would not be. There,
the Court had before it an order affirming the suspension
of an attorney from practice because of her attack on the
fairness and impartiality of a judge. The plurality
opinion, which found the discipline improper, concluded
that the comments had not in fact impugned the judge‘s
integrity. Justice Stewart, who provided the fifth vote for
27
reversal of the sanction, said in his separate opinion that
he could not join any possible ―intimation that a lawyer
can invoke the constitutional right of free speech to
immunize himself from even-handed discipline for
proven unethical conduct.‖ Id., at 646, 79 S.Ct., at 1388.
He said that ―[o]bedience to ethical precepts may require
abstention from what in other circumstances might be
constitutionally protected speech.‖ Id., at 646-647, 79
S.Ct., at 1388-1389. The four dissenting Justices who
would have sustained the discipline said:
―Of course, a lawyer is a person and he too
has a constitutional freedom of utterance and
may exercise it to castigate courts and their
administration of justice. But a lawyer
actively participating in a trial, particularly
an emotionally charged criminal
prosecution, is not merely a person and not
even merely a lawyer.
.....
―He is an intimate and trusted and essential
part of the machinery of justice, an ‗officer
of the court‘ in the most compelling sense.‖
Id., at 666, 668, 79 S. Ct., at 1398, 1399
(Frankfurter, J., dissenting, joined by Clark,
Harlan, and Whittaker, JJ.).
Likewise, in Sheppard v. Maxwell, where the defendant‘s
conviction was overturned because extensive prejudicial
pretrial publicity had denied the defendant a fair trial, we
held that a new trial was a remedy for such publicity, but
―we must remember that reversals are but
palliatives; the cure lies in those remedial
measures that will prevent the prejudice at
its inception. The courts must take such
steps by rule and regulation that will protect
their processes from prejudicial outside
interferences. Neither prosecutors, counsel
for defense, the accused, witnesses, court
staff nor enforcement officers coming under
the jurisdiction of the court should be
permitted to frustrate its function.
Collaboration between counsel and the
press as to information affecting the fairness
of a criminal trial is not only subject to
regulation, but is highly censurable and
worthy of disciplinary measures.‖ 384 U.S.,
at 363, 86 S.Ct., at 1522 (emphasis added).
.....
28
We think that the quoted statements from our
opinions in In re Sawyer, 360 U.S. 622, 79 S. Ct. 1376, 3
L. Ed. 2d 1473 (1959), and Sheppard v. Maxwell, supra,
rather plainly indicate that the speech of lawyers
representing clients in pending cases may be regulated
under a less demanding standard than that established for
regulation of the press in Nebraska Press Assn. v. Stuart,
427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), and
the cases which preceded it. Lawyers representing clients
in pending cases are key participants in the criminal
justice system, and the State may demand some
adherence to the precepts of that system in regulating
their speech as well as their conduct. As noted by Justice
Brennan in his concurring opinion in Nebraska Press,
which was joined by Justices Stewart and Marshall, ―[a]s
officers of the court, court personnel and attorneys have a
fiduciary responsibility not to engage in public debate
that will redound to the detriment of the accused or that
will obstruct the fair administration of justice.‖ Id., at
601, n. 27, 96 S. Ct., at 2823, n. 27. Because lawyers have
special access to information through discovery and
client communications, their extrajudicial statements
pose a threat to the fairness of a pending proceeding
since lawyers‘ statements are likely to be received as
especially authoritative. See, e.g., In re Hinds, 90 N.J.
604, 627, 449 A.2d 483, 496 (1982) (statements by
attorneys of record relating to the case ―are likely to be
considered knowledgeable, reliable and true‖ because of
attorneys‘ unique access to information); In re Rachmiel,
90 N.J. 646, 656, 449 A.2d 505, 511 (N.J.1982)
(attorneys‘ role as advocates gives them ―extraordinary
power to undermine or destroy the efficacy of the
criminal justice system‖). We agree with the majority of
the States that the ―substantial likelihood of material
prejudice‖ standard constitutes a constitutionally
permissible balance between the First Amendment rights
of attorneys in pending cases and the State‘s interest in
fair trials.
Gentile, 501 U.S. at 1071-73, 111 S.Ct. at 2743-44.
Applying this reasoning herein, respondent, as an officer of the court, is held
to a higher standard than a non-lawyer member of the public. As we stated in the
matter of In re: Thomas, 10-0593, p. 11 (La. 6/25/10), 38 So. 3d 248, 255:
An attorney is trained at law, has taken an oath, assumes
a position of public trust and holds himself out to the
public as being fit and capable of handling its funds and
problems. The attorney has assumed a position of
responsibility to the law itself and any disregard for the
29
law is more serious than a breach by a layman or non-
lawyer. He is an officer of the Court.
By holding the privilege of a law license, respondent, along with all
members of the bar, is expected to act accordingly. This is particularly so when a
lawyer is actively participating in a trial, particularly an emotionally charged child
custody proceeding. Respondent in this instance ―is not merely a person and not
even merely a lawyer. [She] is an intimate and trusted and essential part of the
machinery of justice, an ‗officer of the court‘ in the most compelling sense.‖ See
Gentile, supra. And as such, her ―[o]bedience to ethical precepts require[d]
abstention from what in other circumstances might be constitutionally protected
speech,‖ to preserve the integrity and independence of the judicial system. Id.
The appropriate method for challenging a judge‘s decisions and evidentiary
rulings, as respondent even conceded, is through the writ and appeal process, not
by starting a social media blitz to influence the judges‘ and this Court‘s rulings in
pending matters and then claiming immunity from discipline through the First
Amendment.
Rather than protected speech, the evidence clearly and convincingly shows
respondent‘s online and social media campaign was nothing more than an
orchestrated effort to inflame the public sensibility for the sole purpose of
influencing this Court and the judges presiding over the pending litigation. As
such it most assuredly threatened the independence and integrity of the courts in
the underlying sealed domestic matters. Moreover, the testimony irrefutably
establishes both presiding judges perceived the campaign as a threat to their
personal security and as an attempt to intimidate and harass them into ruling as the
petitioners wanted.
We also find the ultimate result of the viral blitz was the recusal of both
judges from the underlying domestic cases as well as other cases involving
30
respondent as counsel. As Judge Gambrell testified, to which Judge Amacker
would agree:
A Judge is a human being also and it is very
difficult for me to feel that I am exercising my integrity
and being independent when I‘m being constantly
barraged by allegations that are just completely false. It
is very difficult for a Judge to make decisions without
knowing that all of this intimidation and harassment is
out there.
It is insulting to me as an – well, I practiced law
for 30 years. I‘m a mother of six daughters. It would
have been better for [respondent] just to drive across the
state line and come sit in the court and actually see what
was being done. As an advocate for the children or
whatever as opposed to making these malicious attacks to
the point – I think it was designed to run me from the
case. Intimidate me to the point that I felt that there was
no way to be fair or impartial.
That‘s basically what it did. I tried – I‘ve never
been one to run away from doing what I‘ve been called to
do, but this was just more than I could bear. I have a
family like everybody else and it just would not stop.
My – I wanted to stop it at the Show Cause hearing so
that I could just look at everybody and say look, this is
not how we do this. Give me a chance to look at this and
let everybody have access to the court system. But
everybody just went on their own tears and it took away
my ability to really do anything with the case.
Though not as blatantly offensive as the blitzing itself, this result nevertheless
prejudiced the administration of justice by causing undue delays in numerous time
sensitive matters, some of which these judges had presided over for a long period
of time. Therefore, we find respondent‘s overall conduct in this regard was
prejudicial to the administration of justice in violation of Rule 8.4(d).
Accordingly, having found the ODC has proven by clear and convincing
evidence respondent‘s conduct violated Rule 3.5(a) and (b) and Rule 8.4(a), (c),
and (d), we must determine the appropriate sanctions.
Sanctions
In determining a sanction, we are mindful disciplinary proceedings are not
primarily to punish the lawyer, but rather are designed to maintain high standards
31
of conduct, protect the public, preserve the integrity of the profession, and deter
future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So. 2d 1173, 1177-78
(La. 1987). The discipline to be imposed depends upon the facts of each case and
the seriousness of the offenses involved considered in light of any aggravating and
mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d
520, 524 (La. 1984).
Louisiana Supreme Court Rule XIX, § 10(C) states, in imposing a sanction
after a finding of lawyer misconduct, this Court shall consider four factors:
(1) whether the lawyer has violated a duty owed to a
client, to the public, to the legal system, or to the
profession;
(2) whether the lawyer acted intentionally, knowingly,
negligently;
(3) the amount of actual or potential injury caused by the
lawyer‘s misconduct; and
(4) the existence of any aggravating or mitigating factors.
As required, we turn now to a consideration of each factor.
Violated Duties
As the hearing committee and disciplinary board both found, there is no
question respondent‘s misconduct violated a duty to the legal system, as well as the
public. More importantly, we find her misconduct also violated a duty to the
children in the underlying domestic litigation. In child custody and abuse cases,
our courts are extremely cognizant of the need to protect the identity and privacy
of the children and their best interest is always at the forefront of any litigation
involving their welfare. State ex rel. S.M.W., 00-3277, p. 21 (La. 2/21/01), 781
So. 2d 1223, 1238 (―primary concern of the courts and the State remains to secure
the best interest for the child‖); La. Civ. Code art. 131 (custody awarded ―in
accordance with the best interest of the child‖); Kieffer v. Heriard, 221 La. 151,
160, 58 So. 2d 836, 839 (1952)(―well established that the paramount consideration
32
… is the welfare and best interest of the child‖). This is why such cases are often
sealed as the litigations herein were, one of which was sealed at the request of
respondent. With that being said, we take umbrage with respondent‘s online and
social media activity that not only released the names of these children, but linked
their audio conversations with their mother detailing their abuse allegations and
posted their faces on the world wide web for anyone to see. We find very telling in
this regard the following discussion respondent had with ODC counsel in her
sworn statement:
Q. And so part of the concern is in now in Louisiana in a
knowingly sealed matter because you are the one who
asked it be sealed, I assume it was granted and was
sealed, that now in the public arena you‘re discussing and
complaining about those very proceedings which are
sealed.
A. Well, I guess my understanding of sealing records is
that you would be sealing the sensitive evidence or
information in the record, not the fact that the record
exists itself. So we never and I would not allow the
drawings that were submitted as part of that record to be
made part of the social –
Q. Okay.
A. – you know,—
Q. So the drawings and none of the excerpts from the
journal, none of that was ever –
A. No.
Q. – linked or attached or images uploaded and
connected with any of the social media sites?
A. No, absolutely not.
Q. Okay.
A. They‘ve very compelling images but I believe they
belong to H. So I wouldn‘t – didn‘t want to do that to
her.
We agree, but would also extend respondent‘s reasoning and concerns to the
children‘s audio recordings, their photos, and their names, some of which are still
33
accessible even today. In her misguided attempt to protect the children, respondent
intentionally facilitated their exposure, breaching what we would consider one of
the greatest duties owed by an attorney in a domestic litigation involving minor
children and allegations of sexual abuse.
Intentional, Knowing, Negligent Action
The ABA Standards define the terms intent, knowledge, and negligence.
Intent is defined as ―the conscious objective or purpose to accomplish a particular
result.‖ Knowledge is ―the conscious awareness of the nature or attendant
circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result.‖ Whereas negligence is ―the failure of a lawyer to
heed a substantial risk that circumstances exist or that a result will follow, which
failure is a deviation from the standard of care that a reasonable lawyer would
exercise in the situation.‖
Both the hearing committee and disciplinary board found the evidence
proved respondent acted knowingly if not intentionally. As to the internet and
social media campaign, respondent repeatedly admitted her purpose was to
increase the chance of this Court granting her writ, to ―influence the judges to
apply the law and look at the evidence … through whatever means available,‖ and
―to get local and national media attention on this particular case.‖ In her sworn
statement, respondent explained her reasons for employing her social media blitz:
Q. … you‘ve afforded yourself the appeal route although
we discussed at least in the one instance where that was
not, didn‘t give the results that y‘all were still looking
for.
A. Correct.
Q. But you understand that‘s how our system is set up,
and you go to district court and if the ruling is wrong and
or you disagree with it factually or legally and you have
grounds to then you appeal and you can go up to the
circuit court and to the Louisiana Supreme Court. What I
don‘t understand is or what I‘m trying to understand is
34
why the two pronged attack. I mean you know you have
access to appeal Judge Amacker –
A. Uh-huh.
Q. – since that‘s the case you‘re involved in, okay, and if
she‘s wrong to get her ruling overturned, right?
A. Right.
Q. And y‘all availed yourself of that?
A. Correct.
Q. Why also then used the online slash social media
attack to effect her rulings at the district court level?
A. Yeah, well, you know, my initial thing that I wanted
to say was why not because we‘re talking about little kids
here and used every available resource to try and protect
them. So as a general response to your question that
would be my answer as to why I would use any available
and appropriate tactic to help these kids. Whether or not
I thought – I mean at the moment the – I think the social
pressure that, you know, we thought – because the appeal
process is a long process, in the meantime the kids are
being exposed, you know, and they‘re not being
protected. So I think maybe the better answer to your
question is that our concern was that even if we were
successful on the appeal or the writ it was going to take a
while and in fact it did. I think it took up two months,
two maybe two and a half months. And even if we had
been successful that would have been two and a half
months where these children were being exposed to this
trauma and we were just trying to do anything we could
to protect them.
Q. Did you ever think that this – the kind of social media
approach that there was something wrong with it or that
it jeopardized you?
A. I wanted to be careful that I didn‘t do anything
inappropriate. I understand that I‘m a lawyer and that I
have to protect, you know, that my – I‘m very, very, very
serious about my own ethics and my own intergrity. So –
but, you know, I served in the military, I have a very
strong sense of what it means to be a US citizens and I
absolutely believe in being active and pro-active and just
standing up and taking a voice. I‘m standing up against
what I do believe is wrong in an appropriate manner and
I didn‘t see anything wrong with reaching out to other
citizens and saying I have a problem with this, do you
agree with me, and if you do come join me. I think that‘s
35
just, you know, inherently American. So, no, I guess the
short answer is no, did I proceed with caution, yes, I did.
I had – I had to have a sit down with myself about
whether or not how involved I wanted to be in drafting
the petition. But after considering it, you know, Raven
needed my help. She didn‘t, you know, she was too
close to it emotionally to be coherent so I helped her
shape her ideas. I helped her be more coherent in what
she wanted to say. And I have no – I can‘t regret doing
that.
We agree this evidence demonstrates both a level of intent and knowledge. As
previously discussed, we likewise find the evidence demonstrates respondent acted
knowingly, if not outright intentionally, in the dissemination of false information
on social media/internet and in her motions to recuse as well as in her request for
public action in calling the presiding judges to express concern and outrage.
Regarding the actual faxing of the petition to the Marion County Court and
Judge Amacker‘s office, we find respondent‘s participation was knowingly made,
i.e., with ―conscious awareness of the nature or attendant circumstances of the
conduct but without the conscious objective or purpose to accomplish a particular
result.‖ Without question, once respondent knowingly and intentionally signed the
petition, it was published and released to anyone with access to the internet. Her
act in signing an online petition directly related to a pending litigation in which she
was enrolled as counsel thus rises to the level of knowledge, because although she
did not fax the petition, she, given her internet and social media suavity, clearly
was aware the petition she signed could and might very well be printed and sent to
the judges and courts to whom the petition was addressed. Though
―uncomfortable‖ upon learning of the fax shortly after it was sent, respondent
could not admit she was surprised. And when asked if she said anything that either
directed or encouraged her client to fax the petition, she conceded:
I can‘t remember anything I said that was directly
encourage [sic] her but I don‘t know that I did anything
to discourage her, you know, honestly. You know, there
is a lot of frustration with this case….
36
Thus, we find this evidence does demonstrate knowledge on respondent‘s part.
Actual or Potential Harm
Furthermore, we find the evidence shows respondent‘s conduct caused
actual and potential harm to the independence and integrity of the judicial system
and also caused the judges concern for their personal well-being. We also find her
exposure of the children on the world wide web extremely harmful.
Aggravating and Mitigating Factors
After reviewing the record, we adopt the hearing committee‘s and
disciplinary board‘s findings on the aggravating and mitigating factors in this case.
In aggravation, we find respondent: (1) acted dishonestly and selfishly, (2) engaged
in a pattern of misconduct involving multiple offenses, (3) had substantial
experience in the practice of law having been admitted to the practice of law since
October 2000, and, most importantly, (4) absolutely refuses to acknowledge the
wrongful nature of her conduct or show any remorse for her actions. It is this utter
lack of remorse that astonished this Court when she appeared before us for oral
argument. Her defiant attitude as to the rules of our profession vis-à-vis her First
Amendment rights was clearly evident in her response to questions posed by
several members of the Court. Completely unapologetic for her misconduct,
respondent made it abundantly clear she would continue to use social media and
blogs to effect her agenda to bring about the changes she sought in the underlying
cases. Respondent will not admit to any wrong doing whatsoever.
There can be no greater professional calling than to stand as an attorney at
the bar of justice and assert as well as defend the rights of citizens. With that being
said, we have long recognized the utmost importance of our rules of professional
conduct to maintain and preserve the dignity and integrity of our time-honored
profession. Any lawyer privileged to stand at the bar and pursue this noble
37
endeavor has taken an oath to abide by those rules. This Court will not tolerate
respondent‘s defiant attitude and unapologetic actions, which make a mockery of
our rules and traditions.
In imposing sanctions we also look at any mitigating factors. The only
mitigating factor in this case is respondent‘s absence of a prior disciplinary record.
While there is no Louisiana case directly on point with the manner in which
respondent facilitated her misconduct, i.e., through social media and the internet,
we do find the serious nature of her actions requires serious sanction. In these
cases, we look to the ABA Standards for guidance in determining the baseline
sanction. Under the standards relevant herein, disbarment is generally appropriate
when a lawyer:
(1) makes an ex parte communication with a judge or
juror with intent to affect the outcome of the
proceeding, and causes serious or potentially serious
injury to a party, or causes significant or potentially
significant interference with the outcome of the legal
proceedings; or
(2) engages in any other intentional conduct involving
dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer‘s fitness to
practice.
ABA Standards 6.31(b) and 5.11(b), respectively. Suspension is generally
appropriate when a lawyer:
engages in communication with an individual in the legal
system when the lawyer knows that such communication
is improper, and causes injury or potential injury to a
party or causes interference or potential interference with
the outcome of the legal proceeding.
ABA Standard 6.32. Accordingly, the applicable baseline sanction under the ABA
Standards ranges from suspension to disbarment.
Although the manner in which respondent violated the applicable rules of
professional conduct is novel, the misconduct—ex parte communication,
dissemination of false and misleading information, and conduct prejudicial to the
38
administration of justice—is hardly so. As both the hearing committee and
disciplinary board properly noted, our prior jurisprudence provides us guidance in
dealing with professional misconduct involving lawyers who engage in improper
communications with and about judges and in conduct dishonest and prejudicial to
the administration of justice.
For example, in the matter of In re: White, 08-1390, p. 14 (La. 12/02/08),
996 So. 2d 266, 274, this Court held ―disbarment is the applicable baseline standard
for respondent‘s conduct in engaging in ex parte communications with the trial
judge presiding over his client‘s pending domestic litigation.‖ This Court
disbarred attorney White for, among other things, his ex parte communication with
the presiding judge, Ronald Bodenheimer, about seafood pricing information.
In the matter of In re: Lee, 07-2061, p. 10 (La. 02/16/08), 977 So. 2d 852,
858, this Court stated ―the language of Rule 3.5(b) clearly and broadly prohibits all
ex parte communication with a judge during the course of a proceeding.‖ The
attorney therein was suspended for six months, with all but 45 days deferred,
subject to the condition he attend Ethics School and obtain five additional hours of
continuing legal education in professionalism, for his misconduct which included
extremely vile and insulting remarks to the trial court and an ex parte
communication with the judge during the course of a proceeding. This Court noted
his behavior presented a common theme of ―lack of respect for the dignity,
impartiality, and authority of the district court.‖ Lee, 07-2061 at p. 10, 977 So. 2d at
858. And in Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990),
this Court found a lawyer need not represent a party in a case to be subject to the
Rule 3.5(b) proscription against ex parte communication and suspended an
attorney for 18 months for making false statements, engaging in conduct that
unduly embarrassed, delayed or burdened a third person, and engaging in improper
ex parte communication with a judge. Considering the attorney‘s conduct ―caused
39
no harm to his clients and his inexperience and remorse,‖ this Court reduced the
suspension to nine months on rehearing. Harrington, 585 So. 2d at 524.
We likewise suspended an attorney for six months, with all but 30 days
deferred, for making false statements about judges in a hypothetical attached to an
appellate brief in which the attorney described a judge‘s ruling as having ―violated
not only controlling legal authority but the very principals [sic] (honesty and
fundamental fairness) upon which our judicial system is based.‖ In re: Simon, 04-
2947, p. 4 (La. 6/29/05), 913 So. 2d 816, 819. In the matter of In re: Larvadain,
95-2090 (La. 12/8/95), 664 So. 2d 395, 395-96, this Court suspended a lawyer for
three months, fully deferred, and placed him on unsupervised probation for one
year with special conditions, for having accused the judge of being a racist while
cursing him, threatening him, and attempting to intimidate him.
Notably, we also suspended an attorney for one year for accusing a judge of
being ―dishonest, corrupt and engaging in fraud and misconduct,‖ and for causing
his unfounded accusations to be published in the local newspaper. Louisiana State
Bar Ass’n v. Karst, 428 So. 2d 406, 408 (1983).
As these cases demonstrate, the discipline for similar misconduct
corresponds with the ABA recommended baseline sanction ranging from
suspension to disbarment. Respondent‘s misconduct is further distinguishable
because of her use of the internet and social media to facilitate her misconduct. As
a result, the petition and associated offensive postings had and still have the
potential to reach a large number of people world-wide and remain present and
accessible on the world wide web even today. Coupled with her complete lack of
remorse and admitted refusal to simply allow our system of review to work without
seeking outside interference, respondent‘s misconduct reflects a horrifying lack of
respect for the dignity, impartiality, and authority of our courts and our judicial
process as a whole. As noted by the United State Supreme Court:
40
The vigorous advocacy we demand of the legal
profession is accepted because it takes place under the
neutral, dispassionate control of the judicial system.
Though cost and delays undermine it in all too many
cases, the American judicial trial remains one of the
purest, most rational forums for the lawful determination
of disputes. A profession which takes just pride in these
traditions may consider them disserved if lawyers use
their skills and insight to make untested allegations in the
press instead of in the courtroom. But constraints of
professional responsibility and societal disapproval will
act as sufficient safeguards in most cases.
Gentile, 501 U.S. at 1058, 111 S.Ct. at 2736. Respondent‘s social media campaign
conducted outside the sealed realm of the underlying judicial proceedings
constitutes, in our view, an intolerable disservice to these traditions and our
judicial system, which the constraints of our rules of professional conduct seek to
safeguard against. Accordingly, we find her ethical misconduct warrants the
highest of sanction—disbarment.
DECREE
Upon review of the findings and recommendations of the hearing committee
and the disciplinary board, and considering the record, briefs, and oral arguments,
it is ordered that Joyce Nanine McCool, Louisiana Bar Number 27026, be and
hereby is disbarred. Her name shall be stricken from the roll of attorneys and her
license to practice law in the State of Louisiana shall be revoked. All costs and
expenses in the matter are assessed against respondent in accordance with
Louisiana Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty
days from the date of finality of this Court‘s judgment until paid.
41
06/30/15
SUPREME COURT OF LOUISIANA
NO. 2015-B-0284
IN RE: JOYCE NANINE MCCOOL
ATTORNEY DISCIPLINARY PROCEEDINGS
Weimer, J., concurring in part, dissenting in part.
I agree with the majority that the respondent has engaged in professional
misconduct. However, I find some aspects of respondent’s conduct amounted to
constitutionally protected speech, for which respondent cannot be sanctioned.
Furthermore, I find the majority’s sanction of disbarment to be disproportional to
respondent’s misconduct.
The majority finds that the respondent’s online and social media campaign was
an orchestrated effort to inflame the public sensibility and to direct public criticism
toward the judges presiding over child custody litigation in both Louisiana and
Mississippi. I do not doubt this was the respondent’s motivation. I also have no
doubt that the respondent was wrong on several points for which she sought to have
the public become incensed. Contrary to respondent’s internet postings, the
Mississippi judge did not ignore audio recordings of the children. Rather, the
recordings were never offered into evidence in the Mississippi proceeding. Similarly,
and contrary to respondent’s postings, the Louisiana judge did not ignore evidence
because proceedings in Louisiana were appropriately stayed in deference to the
proceedings pending in Mississippi. After the Louisiana judge realized she would
likely be a witness in the respondent’s disciplinary proceedings, the judge recused
herself “to avoid the appearance of impropriety” in two unrelated cases in which
respondent was counsel of record. However, the respondent followed this up by
filing motions in two other unrelated cases in which the respondent misrepresented
the judge had recused herself because of the judge’s “extreme bias” against the
respondent.
Making misrepresentations in court pleadings is sanctionable. The
misrepresentations within the respondent’s online and social media campaign and the
fact that they were made by a lawyer representing the mother’s custody interests are
also sanctionable. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038 (1991)
(upholding the ability of a state supreme court to sanction an attorney who “knew or
reasonably should have known his remarks created a substantial likelihood of
material prejudice” to a judicial proceeding). The misrepresentations in respondent’s
statements justify a sanction under Rule 3.51 for the substantial likelihood it would
prejudicially disrupt the child custody proceedings, “since lawyers’ statements are
likely to be received as especially authoritative.” Id. at 1074. Also, to the extent
respondent maintained internet resources, such as websites and social media,
directing petitions to be sent to the Louisiana and Mississippi judges, I construe
respondent’s actions as sanctionable ex parte communications in violation of Rule
1
Rule 3.5 of the Louisiana Rules of Professional Conduct provides:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means
prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized
to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress
or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
2
3.5.2 This court’s majority goes further, however, and sanctions the very acts of
criticizing judges and inspiring public criticism toward judges. In so doing, the
majority impermissibly sanctions the respondent for engaging in constitutionally
protected speech.
As the Court in Gentile explained, “[t]here is no question that speech critical
of the exercise of the State’s power lies at the very center of the First Amendment.”
Id. at 1034-35. Furthermore, “limits upon public comment about pending cases are
‘likely to fall not only at a crucial time but upon the most important topics of
discussion.’” Id. at 1035, quoting Bridges v. California, 314 U.S. 252, 268 (1941).
Indeed, because of the adversarial nature of our system of justice, criticism of
judges is an expected part of the judicial system. Criticism of judges takes place
regularly by parties who perceive they have been aggrieved by judges’ decisions. The
appeals process actually requires parties–and the lawyers who represent them–to
identify and criticize the aspects of judicial decisions with which they disagree. Had
the respondent not peppered her criticism with misrepresentations, engaged in ex
parte communications, engaged in conduct designed to gain an unfair advantage in
on-going litigation, and broken a court-ordered seal imposed to protect
confidentiality, the respondent’s online criticisms of the judges’ handling of the child
custody matter would likely have been fully protected speech.3 As the Supreme Court
explained in Bridges, 314 U.S. at 270-71:
The assumption that respect for the judiciary can be won by shielding
judges from published criticism wrongly appraises the character of
2
The Rules of Professional Conduct prohibit a lawyer from utilizing others to do what a lawyer is
prohibited from doing. See Rule 8.4(a).
3
Although the respondent’s brief relies heavily on First Amendment protections of speech, during
oral argument, the respondent’s repeated comments about the possibility of losing her license to
practice law tacitly recognize that a lawyer’s speech is subject to regulation.
3
American public opinion …. And an enforced silence, however limited,
solely in the name of preserving the dignity of the bench, would
probably engender resentment, suspicion, and contempt much more than
it would enhance respect.
Here, the respondent perceived there to be mistreatment of her client’s children
and looked to the judicial system to address that mistreatment. In light of her
evaluation of the situation, respondent’s initial efforts to invoke judicial action were
both expected and appropriate. However, as an officer of the court, a lawyer must
abide by the principle that cases should be decided by careful deliberation and
application of the facts to the law, not by public clamor. Therefore, after the litigation
was complete, the respondent would have been entitled to disseminate appropriate
criticism–on the internet if she preferred–that the courts ignored the rule of law, if her
representations had been true. But they were not.
Respondent cannot even lay claim to holding a reasonable belief in the veracity
of some of her most significant criticisms. As noted earlier, there was simply no
evidence that the Mississippi court had ignored tape recordings, which allegedly
revealed child abuse, when those recordings had never been submitted for the court’s
consideration. I emphasize this example, because I believe it underscores that the
respondent is passionate in her belief there is a need for society to prevent child
abuse. Passionate belief is usually preferable to apathy and, regarding the need for
society to prevent child abuse, only an unreasonable person would argue in favor of
apathy. In every given case as to whether abuse has actually occurred and must be
stopped, society has chosen the courts to be the ultimate arbiters. Because
respondent, in her privileged role as a lawyer, is an officer of the court, both society
and the government serving it have a justified expectation that officers of the courts
will temper their public criticisms with truthful statements. See Gentile, 501 U.S. at
4
1031 (explaining that lawyers “are key participants” in the justice system, “and the
State may demand some adherence to that system’s precepts in regulating their speech
and conduct.”).
Respondent certainly did not champion the rule of law in her handling of
information relating to her client’s children. Respondent sought and obtained the
sealing of the record in a case dealing with the children. However, respondent later
released information in violation of the seal that she had obtained from the judicial
system.
Therefore, I concur with the majority inasmuch as I find discipline is warranted
for respondent’s misrepresentations, ex parte communications during on-going
litigation, and breaking of a court-ordered seal. I dissent, however, from the
majority’s inclusion of respondent’s acts of online criticism (apart from the
impermissible content just noted) as sanctionable conduct.4
I further dissent as to the sanction. The Office of Disciplinary Counsel (ODC)
recognizes that “[t]here is no Louisiana Jurisprudence addressing misconduct similar
to Respondent’s” and relies on the jurisprudence of two other states5 to support the
4
The majority finds that the respondent’s “overall conduct” constitutes misconduct by “clear and
convincing evidence .” In re McCool, No. 15-0284, slip op. at 26, 31 (La. 06/30/15). Thus, the
majority sweeps both protected and un-protected speech into the category of sanctionable conduct.
I certainly share the majority’s concern that unfounded criticism can impede the judicial process.
As one commentator also has noted, “with increasing frequency ... attacks on the judiciary ... are
purely ideologically driven. This type of ‘criticism’ ... undermines the rule of law by suggesting that
judges are free to ignore the relevant facts or the applicable law to reach the outcome sought by a
special interest group.” Steven M. Puiszis, The Need to Protect Judicial Independence, 55 No. 4 DRI
For Def. 1 (Apr. 2013). Caustic though it may be, such speech even by a lawyer is protected by the
First Amendment, as long as the speech does not, as it does here, contain misrepresentations or as
the Supreme Court has explained, present a “substantial likelihood of material prejudice” to a case.
Gentile, 501 U.S. at 1037.
5
The ODC cited unpublished disciplinary cases. It cited the public reprimand ordered in The
Florida Bar v. Conway, SC08-326 (Fla. 10/29/08), 2008 WL 4748577, and administered by the
Florida Bar in The Florida Bar v. Sean William Conway, TFB File No. 2007-51,308(17B),
available at
https://www.floridabar.org/DIVADM/ME/MPDisAct.nsf/daToc!OpenForm&AutoFramed&MFL
=Sean%20William%20Conway&ICN=200751308&DAD=Public%20Reprimand (last visited
6/4/15).
5
recommended sanction of one year and one day suspension. While it is true that the
novelty in Louisiana of the issues in this case presents certain challenges, this court
is not without guidance and that guidance does not point to the disbarment the
majority now imposes.
Specifically, the ABA Standards for Imposing Lawyer Sanctions address
violations of a lawyer’s duties to the legal system. Respondent’s violations of her
duties to the legal system are the crux of this case, even under the majority’s analysis.
However, under the rubric of “Improper Communications with Individuals in the
Legal Systems,” ABA Standard 6.32 provides a baseline sanction of a suspension for
an ex parte “communication with an individual in the legal system when the lawyer
knows that such communication is improper, and causes injury or potential injury to
a party or causes interference or potential interference with the outcome of the legal
proceeding.” Under the same rubric of improper communications, disbarment is
reserved for an ex parte communication which “causes serious or potentially serious
injury to a party, or causes significant or potentially significant interference with the
outcome of the legal proceeding.” ABA Standard 6.31(b). However, in its
prosecution of this case, the ODC did not charge respondent with violating Rule 3.66
In Conway, the lawyer maintained a website entitled “Judge Aleman’s New (illegal)
‘One-Week to prepare’ policy,” and referred to the judge throughout the website as an “EVIL
UNFAIR WITCH.” Conway, TFB File No. 2007-51,308(17B). The reprimand stated: “although
attorneys play an important role in exposing valid problems within the judicial system, statements
impugning the integrity of a judge, when made with reckless disregard as to their truth or falsity,
erode public confidence in the judicial system without assisting to publicize problems that
legitimately deserve attention.”
The ODC also cited In re: Kristine Ann Peshek, M.R.23794 (Ill. 5/18/10), available at
http://www.illinoiscourts.gov/SupremeCourt/Announce/2010/051810.pdf, and accepting the petition
for discipline available at http://www.iardc.org/09CH0089CM.html (last visited 6/4/15). According
to the petition in Peschek, the attorney referred to a judge as “Judge Clueless” and referred to
another judge as “a total a******.”
6
Rule 3.6(a) of the Rules of Professional Conduct prohibits a lawyer from “mak[ing] an
extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by
means of public communication and will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.”
6
or even allege that respondent’s actions created a danger of imminent and substantial
harm. Thus, the baseline sanction is suspension because of the potential for harm
rather than a showing of actual harm. See ABA Standard 6.32; compare ABA
Standard 6.31(b).
In contrast to these standards establishing a baseline of suspension, the
majority’s sanction analysis relies on In re White, 08-1390 (La. 12/02/08), 996 So. 2d
266, 274, in which this court determined a lawyer’s ex parte communications fell
within a baseline sanction of disbarment. The majority presently describes our
analysis in In re White as turning on the fact that the ex parte communication was
“about seafood pricing information.” In re McCool, No. 15-0284, slip op. at 39 (La.
06/30/15). While it is true that seafood prices were one topic of the lawyer’s ex parte
communications in In re White, the majority presently fails to mention that the
seafood pricing information supplied by the lawyer was stipulated to be “relatively
useless” to the judge and, therefore, our finding in In re White that the baseline
sanction for certain ex parte communications was disbarment actually rested on the
lawyer engaging in other communications. In re White, 08-1390 at 7, 996 So. 2d at
270. To benefit his employer in a pending domestic dispute case, the lawyer engaged
in ex parte communications to arrange for providing lavish gifts to a judge and his
family. Id. at 7-8. Specifically, the lawyer stipulated to the following ex parte
communications with Judge Bodenheimer, which were found to have been made with
the intent to benefit the lawyer’s client, restauranteur Al Copeland:
14. During the course of the Copeland/Hunter domestic relations
proceedings, Bodenheimer requested and respondent provided
complimentary appetizers and refreshments at one of Copeland’s
restaurants to Bodenheimer’s daughter for a birthday. Although it was
(and is) a regular and common practice of Copeland’s restaurants to
provide complimentary food and beverages to various members of the
7
public, respondent acknowledges that he should have declined Judge
Bodenheimer’s request.
15. Additionally, on another occasion, respondent provided promotional
gift cards for complimentary food and refreshments at a Copeland’s
restaurant to members of Bodenheimer’s staff during the time that the
Copeland/Hunter proceedings were then pending. Although it was (and
is) a regular and common practice of Copeland’s restaurants to provide
complimentary food and beverages to various members of the public,
respondent acknowledges that he should have declined to furnish these
promotional gift cards.
In re White, 08-1390 at 7-8, 11-12, 996 So. 2d at 270, 272-73.
Here, and unlike In re White, there has been no allegation that the respondent
engaged in ex parte communications as part of a quid pro quo exchange to curry favor
with a judge during a pending case. Aside from In re White, which plainly deals
with misconduct of a more egregious nature than the misconduct here, the majority’s
sanction analysis relies on cases in which this court suspended lawyers who engaged
in ex parte communications. In re McCool, No. 15-0284, slip op. at 39-40 (citing In
re Lee, 07-2061, p. 11 (La. 02/16/08), 977 So. 2d 852, 858 (suspension of 6 months,
all but 45 days deferred); In re Simon, 04-2947 (La. 06/29/05), 913 So. 2d 816, 819
(suspension of 6 months, all but 30 days deferred); In re Larvadain 95-2090 (La.
12/08/95), 664 So. 2d 395 (suspension of 3 months, fully deferred); Louisiana State
Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990) (suspension of 18 months); and
Louisiana State Bar Ass’n v. Karst, 427 So. 2d 406 (La. 1983) (suspension of 1
year)). To disbar the respondent here, considering the suspensions cited by the
majority, reveals that disbarment is not only disproportionate to the misconduct, but
is impermissibly punitive. See Louisiana State Bar Ass’n v. Reis, 513 So. 2d 1173,
1177-78 (La. 1987) (noting the primary purposes of disciplinary proceedings are to
maintain the high standards and integrity of the legal profession, protect the public,
and to deter misconduct, rather than punish the lawyer).
8
The suspension of one year and one day recommended by the hearing
committee, disciplinary board, and ODC is consistent with the baseline of suspension
under the ABA Standards. I would impose the recommended suspension, with one
alteration. Because the misconduct here is novel in that this court has never directly
addressed an attorney’s use of social media and the internet and the ODC points to
only two other states that have addressed misconduct involving improper internet
postings, I would defer all but six months of the suspension subject to the condition
that the suspension would be fully imposed if respondent were to commit misconduct
during the period of active or deferred suspension. See In re Raspanti, 08-0954, p.
23 (La. 3/17/09), 8 So. 3d 526, 540 (finding as a significant mitigating factor that “we
are issuing a sanction for a matter for which no one has been sanctioned
previously.”).7 The recommended suspension is also supported by the mitigating
factor that respondent has no disciplinary history in over 14 years as a member of the
bar.
Thus, I respectfully concur in part and dissent in part, with the opinion of the
majority.
7
Noting the novelty of internet blogging, one commentator suggests the rules governing the legal
profession currently fail to equate blogging with an ex parte communication. See Rachel C. Lee,
Symposium: Media, Justice, and the Law: Note: Ex Parte Blogging: The Legal Ethics of Supreme
Court Advocacy in the Internet Era, 61 Stan. L. Rev. 1535 (April 2009). Here, respondent’s conduct,
such as her online petition, went beyond the type of commentary typically associated with blogging
and, as earlier noted, I have no difficulty finding that the respondent has engaged in communications
which violate the Rules of Professional Conduct. However, the commentary just cited underscores
that this is a developing area of the law, a reality which weighs against imposing disbarment under
the facts presented.
9
06/30/15
SUPREME COURT OF LOUISIANA
No. 2015-B-0284
IN RE: JOYCE NANINE MCCOOL
ATTORNEY DISCIPLINARY PROCEEDINGS
GUIDRY, Justice, concurs in part and dissents in part.
I concur that respondent should be sanctioned, but I dissent as to majority’s
imposition of disbarment and I would impose a suspension of three years.
06/30/15
SUPREME COURT OF LOUISIANA
NO. 2015-B-0284
IN RE: JOYCE NANINE MCCOOL
ATTORNEY DISCIPLINARY PROCEEDINGS
CRICHTON, J., additionally concurs and assigns reasons:
I wholeheartedly agree with the majority opinion in this matter. I write
separately, however, to touch upon what I believe to be an outrageous disregard for
the sacred profession we, as well as respondent, have chosen. The majority aptly
notes that holding a law license is a great privilege. As United States Supreme
Court Justice Benjamin Cardozo, then Judge on the Court of Appeals of New
York, also stated almost a century ago: “Membership in the bar is a privilege
burdened with conditions.” In re Rouss, 116 N.E. 782, 783 (N.Y. 1917). Those
conditions are numerous, and do not come without great sacrifice. Respondent is
an “„officer of the court‟ in the most compelling sense,”1 as the majority so
correctly finds, and consequently, she is held to a higher standard than a non-
lawyer member of the public. She cannot confuse a First Amendment claim of the
right to free speech with a serious and intentional violation of the Rules of
Professional Conduct, which are rules that apply both to her and to every lawyer.
Not only did her conduct cause major disruptions in the course of litigation, it also
unnecessarily put members of the judiciary at risk.
But perhaps respondent‟s most astounding and egregious action is her
complete and utter lack of remorse, and defiance in the face of her impending
sanction. At oral argument of this matter, respondent admitted she did “not have
any remorse for [my] conduct” and that she would “continue to speak out and
1
Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720 (1991) (internal citations
omitted).
advocate for change.” It is unfortunate that respondent does not seem to
understand that being a zealous advocate does not equate to such repugnant
disrespect for the system we are charged to honor and serve. It is for these reasons
I agree with the majority‟s decision to impose the most serious of sanctions:
disbarment.
06/30/15
SUPREME COURT OF LOUISIANA
NO. 2015-B-0284
IN RE: JOYCE NANINE MCCOOL
ATTORNEY DISCIPLINARY PROCEEDING
CANNELLA, J.,* concurring in part and dissenting in part.
I dissent in part as to the sanction and would impose a three year suspension,
but I concur in all other respects.
*
Retired Judge James L. Cannella, assigned as Justice ad hoc, sitting for Hughes, J., recused.