Some Bad Legal Advice Given On Facebook

The case of Winston Bradshaw Sitton, who was recently suspended by the Supreme Court of Tennessee, is another lawyer discipline case resulting from a social media post. Most discipline cases of this type are the result of a lawyer responding to a negative client review and either saying something unfavorable about the client or disclosing confidences. This one is in another category altogether.

In this case, Sitton read a Facebook post from an acquaintance in which she said she was afraid of her ex-boyfriend and that she was carrying a gun for protection. The Supreme Court of Tennessee set forth the facts as follows:

“For roughly a year, Mr. Sitton was a “Facebook friend” of Lauren Houston but evidently had not met her in person. Around December 2017, Ms. Houston was in the midst of a tumultuous break-up with Jason Henderson, the father of her child. Through his Facebook connection with Ms. Houston, Mr. Sitton became aware of allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection.

Against that backdrop, Ms. Houston wrote the following post on her Facebook page: “I need to always carry my gun with me now, don’t I? Is it legal to carry in TN in your car withoutpaying the damn state?” The post was not directed to anyone specifically but rather was aimed at Ms. Houston’s Facebook audience.”

Sitton responded to the post as follows:

“I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby’s daddy, you will kill your ex _ your son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.”

“Replying to Mr. Sitton’s post, Ms. Houston commented, “I wish he would try.”      In response, Mr. Sitton posted further on Ms. Houston’s Facebook page:

As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life _ revenge or premeditation of any sort will be used against you at trial.

Presciently, another Facebook user posted: “He’s likely already seen th[is] thread!”

Consistent with Mr. Sitton’s advice, Ms. Houston deleted her Facebook post. This had the effect of deleting all of the comments to her Facebook post, including her exchange with Mr. Sitton.

Sure enough, Mr. Henderson soon became aware of the Facebook exchange between Ms. Houston and Mr. Sitton. He brought screenshots of Ms. Houston’s public Facebook post and the comments, including those by Mr. Sitton, to the attention of Shelby County District Attorney General Amy Weirich. General Weirich in turn passed the screenshots along to Tennessee’s Board of Professional Responsibility (“Board”).

The Board investigated the matter and received Mr. Sitton’s explanation. In August 2018, it filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct2 8.4(a)–(d)3 by “counsel[ing] Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.”

Mr. Sitton admitted most of the basic facts alleged by the Board in its petition. He contended, however, that his Facebook comments were taken out of context. Mr. Sitton argued his comments could not be considered as counseling Ms. Houston on how to get away with criminal conduct and denied he had violated the Rules of Professional Conduct.4 The hearing on the Board’s petition was scheduled for November 8, 2019.

In re Winston Bradshaw Sitton, BPR#18440, decided January 22, 2021. The Supreme Court held that Sitton had engaged in conduct prejudicial to the administration of justice (Rule 8.4(a) and (d).

The explanation:

As to the rule violations, the hearing panel concluded: “Giving advice as a lawyer about planning in advance how to claim a defense to killing someone is conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d).” It found that this violation “also constitutes a violation of Rule 8.4(a).”

We agree. We hold there is ample evidence to support the hearing panel’s conclusion that Mr. Sitton violated RPC 8.4(a) and (d) and that he is subject to discipline.

The court held that a suspension was appropriate because the advice was not acted upon. The court ordered a four-year suspension with one year on active suspension and three years on probation.

Comment: It is difficult to imagine a lawyer doing something like this, but, as they say, truth is stranger than fiction.

Should you have any questions concerning legal ethics issues, do not hesitate to contact us. We can often be of help in these matters.

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