No. 2014-274
IN THE SUPREME COURT OF ILLIANA
______________________________________________________________________________
ILLIANA PROFESSIONAL RESPONSIBILITY DISCIPLINARY COMMISION
Petitioner,
V.
WILLIAM T. RIKER,
Respondent.
______________________________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE ILLIANA REVIEW BOARD
______________________________________________________________________________
____________________________________
Brief for the Respondent
____________________________________
Team 5
TABLE OF CONTENTS
TABLE OF CONTENTS....................................................................................................... ......... i
TABLE OF AUTHORITIES......................................................................................................... iii
QUESTIONS PRESENTED FOR REVIEW................................................................................ vi
STATEMENT OF THE CASE....................................................................................................... 1
SUMMARY OF THE ARGUMENT............................................................................................. 5
STANDARD OF REVIEW............................................................................................................ 6
ARGUMENT.................................................................................................................................. 8
I. WILLIAM T. RIKER’S CRITICISM OF JUDGE JEAN-LUC PICARD DID
NOT VIOLATE ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2................... 8
A. In the application of either the actual malice standard or the objective
reasonable attorney standard, Riker’s statements do not violate Rule 8.2 and
therefore the Review Board was correct in reversing the Hearing Panel’s
decision for sanctions.................................................................................................... 8
1. If this court adopts the actual malice standard, Riker should not be
subject to sanctions because the statements he made impugning Judge
Picard were made out of the belief of their veracity............................................... 8
2. If this court adopts the actual malice standard, Riker should not be
subject to sanctions because the statements he made impugning Judge
Picard were made out of the belief of their veracity............................................. 10
B. Riker’s email was a private communication not made public and therefore
not subject to the same scrutiny as public criticism.................................................... 12
C. Riker’s statements are protected by the United States Constitution’s First
Amendment in either a balanced interest standard or a substantive inquiry
of the facts and opinions............................................................................................. 13
1. Balancing the Competing Interests at Stake......................................................... 15
2. Substantive Inquiries of Fact and Opinion............................................................ 17
II. MR. RIKER DID NOT CAUSE HIS CLIENT MONICA SHIRLEY TO
COMMUNICATE WITH A REPRESENTED PERSON IN VIOLATION
OF ILLIANA RULE OF PROFESSIONAL CONDUCT 4.2.......................................... 20
i
A. A client should not count as “another” for the purposes of Rule 4.2 as the
“clear standard” sought by the Review Panel should not automatically
deem clients to be “another” under the Rule.............................................................. 21
B. Assuming a client counts as “another” for the purposes of Rule 4.2, the
Review Panel correctly determined Mr. Riker did not overreach as the
client orchestrated the communication which Mr. Riker did not later ratify.............. 25
1. Mr. Riker demonstrated no intent to side-step the “no contact” rule as
the communication was orchestrated by the client and not Mr. Riker.................. 25
2. Mr. Riker did not ratify his client’s actions after learning of the
forbidden conduct................................................................................................. 29
CONCLUSION............................................................................................................................. 30
ii
TABLE OF AUTHORITIES
CASES
Bd. of Prof’l Resp. v. Melchior,
269 P.3d 1088 (Wyo. 2012).............................................................................................. 24
Bratcher v. Ky. Bar Ass'n,
290 S.W.3d 648 (Ky. 2009).............................................................................................. 27
Garrison v. La.,
379 U.S. 64 (1964)............................................................................................................ 10
Gidatex, S.r.L. v. Campaniello Imports, Ltd.,
82 F.Supp.2d 119 (S.D.N.Y. 1999).................................................................................. 27
Holdren v. Gen. Motors Corp.,
13 F.Supp.2d 1192 (D. Kan. 1998)................................................................................... 26
Idaho State Bar v. Topp,
925 P.2d 1113 (Idaho 1996).............................................................................................. 16
In re Anonymous,
819 N.E.2d 376 (Ind. 2004)........................................................................................ 27, 28
In re Green,
11 P.3d 1078 (Colo. 2000).................................................................................................. 9
In re Marietta,
569 P.2d 921 (Kan. 1977)........................................................................................... 26, 27
In re Ositis,
40 P.3d 500 (Ore. 2002).................................................................................................... 27
iii
In re Pyle,
91 P.3d 1222 (Kan. 2004)................................................................................................. 26
In re Sawyer,
360 U.S. 622 (1959).......................................................................................................... 13
In re Wilkins,
777 N.E.2d 714 (2002).......................................................................................... 14, 15, 16
Matter of Isaac,
76 A.D.3d 48 (N.Y. 2010)................................................................................................ 12
New York Times v. Sullivan,
376 U.S. 254 (1964)............................................................................ 7, 8, 9, 13, 14, 15, 16
Office of Disciplinary Counsel v. Gardner,
793 N.E.2d 425 (Ohio 2003)................................................................................... 9, 15, 18
San Francisco Unified School Dist. ex. rel. Contreras v. First Student Inc.,
213 Cal. App. 4th 1212 (2013)....................................................................... 20, 21, 24, 25
Standing Comm. on Discipline of the United States Dist. Ct. v. Yagman,
55 F.3d 1430 (1995)........................................................................................ 10, 16, 17, 18
State ex rel. Oklahoma Bar Ass'n v. Porter,
766 P.2d 958 (Okla. 1988)............................................................................................ 9, 16
STATUTES
Illiana Rules of Prof’l Conduct
Rule 4.2....................................................................................................................... 19, 22
Illiana Rules of Prof’l Conduct
Rule 8.2................................................................................................................................7
iv
OTHER AUTHORITIES
ABA Formal Ethics Op. 11-461 (2011).................................................................................. 21, 22
Ass’n of the Bar of the City of New York Comm. on Professional and Judicial Ethics
Formal Op. 2002-3 (2002)................................................................................................ 23
California Comm. on Prof'l Resp. and Conduct
Formal Op. 1993-131 (1993)............................................................................................ 22
v
QUESTIONS PRESENTED FOR REVIEW
1.
Whether William T. Riker’s criticism of Judge Jean-Luc Picard violated Illiana’s Rule of
Professional Conduct 8.2?
2.
Whether Riker caused Monica Shirley, his client, to communicate with a represented
person in violation of Illiana’s “no contact rule” in violation of Illiana Rule of
Professional Conduct 4.2?
vi
STATEMENT OF THE CASE
The Respondent, William T. Riker (“Riker”), is a practicing attorney with a history of
good standing in the State of Illiana. After being passed over for a promotion as a loan officer
due to what she believed was gender discrimination, Monica Shirley (“Shirley”) filed an Equal
Employment Opportunity Commision (“EEOC”) charge against her employer, Wall Street Bank.
(R1. at 1.) Shirley then retained Riker, whom she knew as a family friend, to represent her in the
pending discrimination matter. (R1. at 1.)
On December 15, 2012, Riker met with Shirley to discuss her upcoming gender
discrimination case in greater detail. (R1. at 1.) Shirley explained to Riker that it was her desire
to continue working at Wall Street Bank and her desire and purpose in filing this charge was to
obtain the promotion she believed she deserved without creating “too much trouble in the
workplace.” (R1. at 2.)
After their meeting where Shirley conveyed her goals for the upcoming litigation, Shirley
initiated a text message conversation where she suggested that Riker meet with her boss so that
they could discuss the case details at length. (R1. at 2.) Riker informed Shirley that would be
unable to attend a meeting of this nature “because your boss and coworkers are represented by
the defense attorney Wall Street Bank hired to defend this case, and I cannot speak with anyone
in this case who is represented without first getting their lawyer’s permission.” Shirley then
asked Riker if there was a rule that would prevent her from being able to talk to her boss. Riker
replied:
No you can talk to your boss- and anyone else for that matter- about anything you
want. Since the bank has lawyered-up, I certainly cannot speak with its
employees about this case. Our first priority is to figure out exactly what we
need to prove our case. I’ll do some homework and get you up to speed soon.
Then we can start working on gathering the information we need.
1
(R1. at 2.)
Following their text exchange, Riker began his legal research on WesLex to obtain
statistical factual information regarding Shirley’s case. (R1. at 2.) Riker’s research revealed that
the manner in which the law was written and the method by which the laws were interpreted by
the courts favored the employer. (R1. at 2.) Riker used an aggregation tool on the WesLex legal
research website to compile data regarding the employment discrimination cases Judge Jean LucPicard had presided over. (R1. at 2.) The website’s aggregation tool indicated that Judge Picard
had found in favor of the employer 75% of the time. (R1. at 2.) Riker determined that based on
the law’s language, the interpretation of the courts favoring the employer, Judge Picard’s high
percentage of finding in favor of the employer, and Judge Picard’s well-known reputation within
the legal community for being tough on plaintiffs that Shirley’s case would be an uphill battle.
(R1. at 2.)
However, Riker also determined that if they were able to establish a pattern of gender
discrimination within Wall Street Bank, his case would be much easier to prove. Information
regarding other employees that had been passed over for promotions and those employees’
gender, years worked, and eligible promotions would help Riker establish the pattern of
discrimination he needed to shift the balances in his favor for Shirley’s case. (R1. at 3.)
On December 19, 2012, Riker sent Shirley an email where he explained:
The way the law is written and interpreted by courts gives more advantages to
employers. In this district Judge Picard is the worst with these cases. When it
comes to employment law cases, Judge Picard is very conservative. When
examining evidence he views it in a light that is more favorable to employers.
Not to mention that he is an old codger who hates greedy plaintiffs. We will have
an uphill battle if he presides over our case.
We need to start working now to gather certain information from current
employees regarding any discrimination they may have experience. Here’s what I
determined that I need…
2
(Exhibit A.)
Riker’s email then included a list of eight items (names, age, sex, etc.). (Exhibit A)
Riker closed the email by stating, “These would of course be the kinds of things that we would
ask your coworkers about in a deposition, with Wall Street Bank’s attorney present” and the
positive and motivational declarative, “Let’s get to work.” (Exhibit A)
The next day, Shirley altered the Riker’s email and forwarded much of the original
content so that it looked like a questionnaire. (R1. at 3.) It was Shirley’s idea to also include a
signature line at the bottom of the emails so that they looked more “official.” (R1. at 3.) Shirley
invited a group of her friends out to lunch and discussed her belief that Wall Street Bank had
established a pattern of gender discrimination. Shirley’s friends and coworkers agreed with her
assessment of Wall Street’s promotion practices and agreed at her directive to fill out the altered
email questionnaire, sign the document, and save the completed form as a PDF file and return it
to her as an attachment.
After Shirley obtained four of her complete questionnaires, she forwarded the
attachments to Riker and his law clerk along with the message, “I got the information from my
coworkers you asked for, there’s some juicy stuff in here!” (Exhibit C) Riker immediately
responded to Shirley via text stating,
“Oh wow, in a rush right now. In the middle of 3 day jury trial, plus holidays coming up,
may be a while before I can get to this. You may want to be sure they understand the legal
consequences of statements.” (R1. at 3.)
Riker then addressed Shirley’s actions in an email to his law clerk where he stated,
You can’t really stop them from doing anything because they are your boss.
Don’t forget that the client calls the shots, even when they have no idea what they
are doing…
3
Eventually, some client might ask you to break the rules… But under those
circumstances, the rules are a shield for you. Don’t be afraid to do the right
thing…
(Exhibit D.)
Shirley failed to follow up with her coworkers regarding the legal consequences of their
communications as Riker had instructed. (R1. at 3.) Due to Riker’s ongoing jury trial, he forgot
to follow up once again with Shirley about informing her coworkers of the legal consequences of
their communications. (R1. at 4.)
On January 9, 2013, Riker filed suit against Wall Street Bank on behalf of Monica
Shirley. (R1. at 4.) During the deposition of one of Shirley’s coworker, Ira Adams, Riker
attempted to use the coworker’s signed statement that Shirley had obtained in order to elicit
testimony from him. (R1. at 4.) The defense objected to the use of the signed statement and
stopped the deposition. (R1. at 4.) Defense counsel filed a Motion for Protective Order on the
grounds that the signed statement was the fruit of an ethical violation and must therefore be
stricken. (R1. at 4.) The defense’s argument was based on the assertion that Riker had violated
Rule 4.2 in obtaining the coworker’s signed statement. (R1. at 4.)
On June 27, 2013, the Northern District of Illiana held a hearing regarding the defense’s
Motion for Protective Order. The presiding judge denied the motion and forwarded the signed
statements to the Disciplinary Commission for further review. (R1. at 4.) Despite being unable
to provide any evidence that Riker’s research was false, the Disciplinary Commission questioned
Riker’s actions surrounding and stemming from the original email to Shirley and signed
statements Shirley obtained. (R1. at 4; R2. at 5.)
On August 11, 2013, the Illiana Board of Professional Responsibility Hearing Panel
(“Hearing Panel”) determined that Riker was in violation of both Rule 8.2, for making false
4
statements regarding a judicial officer; and Rule 4.2, for communicating with a represented
person. (R1. at 15.) Sanctions were ordered against Riker in the form of immediate suspension
from the practice of law for a period of 90 days. (R1. at 15.)
Riker filed a timely appeal of the decision of the Hearing Panel and on September 10,
2013, the Illiana Review Board (“Review Board”) reversed the Hearing Panel’s decision for
sanctions. (R2. at 1.) The Review Board found that Riker had not violated Rule 8.2 or 4.2 and
dismissed all charges. (R2. at 11.)
On October 1, 2013, the Illiana Professional Responsibility Disciplinary Commission
filed a timely petition of a writ of certiorari seeking de novo review of Riker’s alleged violation
of Rule 8.2 and Rule 4.2. (R3.)
SUMMARY OF THE ARGUMENT
Under the application of any standard available to determine whether William Riker’s
statements in a private email to his client Monica Shirley should be free from sanctions pursuant
to Rule 8.2, this Court should find that Riker’s contested speech was a protected form of
communication.
Courts have generally applied a subjective actual malice standard or an objective
reasonable attorney standard when analyzing contested critical speech. In application of either
an actual malice standard or a reasonable attorney standard, it is evident that Riker’s words were
written to Ms. Shirley with enough factual certainty and substantiated belief as to protect him
from sanctions. Because Riker made statements only following in-depth legal research, he acted
5
as any reasonable attorney would have in a similar situation and in light of the same factual
circumstances.
Further, any in-depth analysis of a First Amendment protection will yield that Riker’s
interest of speaking freely about the judiciary based on his conducted research, do not act so
much as to upset the balance of the proper administration of justice. A substantive review of
Riker’s statements indicate that because they were based on factual inquiry and reasonable
belief, there is no cause to safeguard the public from such discussion which can only bring about
positive change.
Turning to the second issue, Mr. Riker did not cause his client to communicate with a
represented person in violation of Rule 4.2.
First, as a matter of law, clients should not automatically be deemed “another” for the
purposes of Rule 4.2. This issue of first impression represents a chance for this Court to draw a
finite line where one is desperately needed. That line should be drawn to not automatically deem
clients as “another” under the Rule. Sister jurisdictions have been hesitant to deem clients
“another” under the rule and their wisdom in doing so should be repeated. Also, clients have the
explicit right to communicate with opposing parties and to be counseled regarding those
communications. To deem clients as “another” under the Rule would be to infringe the rights of
clients who are not simply lawyer’s agents but rather private citizens with their own protected
rights.
Second, assuming clients are “another” for the purposes of Rule 4.2, Mr. Riker did not
cause his client to communicate with a represented party and therefore overreach the boundaries
of Rule 4.2. This is because at no point did Mr. Riker demonstrate any intent to overreach and
cause the communication. The Hearing Panel -the only body to find any fault with Mr. Riker’s
6
actions-was itself overturned after relying on non-persuasive and off-point authority. These cases
describe situations where lawyers actively coached or encouraged the contact while Mr. Riker
did the opposite by preaching caution and patience. Further, after learning of his client’s deeds,
he in no way ratified the conduct but instead spoke against it.
STANDARD OF REVIEW
Determinations made by the Illiana Review Board are reviewed de novo before this
Court. (R3. at 1.)
7
ARGUMENT
I. WILLIAM T. RIKER’S CRITICISM OF JUDGE JEAN-LUC PICARD DID NOT
VIOLATE ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2
The Illiana Review Board correctly held that William T. Riker did not violate Illiana’s
Rule 8.2 of Professional Conduct where he criticized Judge Jean-Luc Picard in a private email to
his client Monica Shirley. In application of either choice of law, be it the malice standard or the
objective reasonable attorney standard, this Courts will find that Riker’s impugning statements of
a judicial officer were nonetheless made in such a manner as to obviate sanctions. Further,
Riker’s criticism fell within the shielded protection of a private email exchange between himself
and his client. Additionally, Riker’s First Amendment rights protect his ability to make
statements that are factually true and/or opinions.
Riker does not deny making statements in an email directed to Monica Shirley that were
critical in nature of the actions of Judge Jean-Luc Picard. However, Respondent asserts that his
statements fell along “the path of safety [that] likes in the opportunity to discuss freely supposed
grievances and proposed remedies” and therefore did not violate Illiana’s Rule 8.2 of
Professional Conduct. New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
Illiana’s Rule of Professional Conduct 8.2 provides:
(a) A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
Integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the
Applicable provisions of the Code of Judicial Conduct.
8
A. In the application of either the actual malice standard or the objective
reasonable attorney standard, Riker’s statements do not violate Rule 8.2 and
therefore the Review Board was correct in reversing the Hearing Panel’s
decision for sanctions
In determining if Riker’s statements to Shirley violated Illiana’s Rule 8.2, courts have
traditionally applied one of two standards. The first standard analyzes whether the questionable
statements were made with actual malice; the second standard requires the court to objectively
decide what a reasonable attorney would have done in the same or similar circumstances. Both
the Hearing Panel and the Review Board applied the reasonable attorney standard; however, the
United States Supreme Court has only used the malice standard initially set forth in New York
Times v. Sullivan.
1. If this court adopts the actual malice standard, Riker should not be subject
to sanctions because the statements he made impugning Judge Picard were
made out of the belief of their veracity
If this Court were to apply the actual malice standard, Riker’s comments would fail to
rise to the level of actual malice because he made statements to Shirley that he believed to be
true. The actual malice standard is the only standard to be applied by the United States Supreme
Court. Since its promulgation in Sullivan, the standard has been echoed and expanded in
application by the Supreme Court while the reasonable attorney standard has been largely
ignored.
The actual malice standard was first set forth in the watershed case New York Times v.
Sullivan. 376 U.S. 254, 270 (1964). In Sullivan, the Court stated that a public official could not
recover damages for defamation unless he had shown that the challenged expression contained a
false statement of fact made with actual malice. Id. at 280. Although the actual malice standard
is traditionally applied in defamation actions, the definition from Sullivan is nearly identical to
Illiana’s own language in Rule 8.2; explaining that a statement made with actual malice is one
9
made “with knowledge that it is false or with reckless disregard of whether it was false or not.”
Id. The objective actual malice standard is hailed by the courts as “strik[ing] a constitutionally
permissible balance between an attorney’s right to criticize the judiciary and the public’s interest
in preserving confidence in the judicial system.” Office of Disciplinary Counsel v. Gardner, 793
N.E.2d 425, 29 (Ohio 2003).
Although the Supreme Court has yet to apply the Sullivan actual malice standard in the
context of attorney discipline, multiple courts have reasoned that disciplining an attorney for
criticizing a judge is analogous to a defamation action by a public official. In re Green, 11 P.3d
1078 (Colo. 2000). As stated in Porter, a “restriction on an attorney’s right to criticize judged
hinders the public’s access to the class of people in the best position to comment on the
functioning of the judicial system.” 766 P.2d 958 (Okla. 1988). Due to the intrinsic similarities
in the claims, multiple courts have adopted the two-part subjective actual malice standard that
analyzes whether (1) the disciplining authority has proven that the statement was a false
statement of fact; and (2) assuming the statement is false, whether the attorney uttered the
statement with reckless disregard as to its truth. 11 P.3d 1078 (Colo. 2000).
Following Riker’s research of employment discrimination law and Judge Picard’s past
rulings, Riker determined that Shirley had an uphill battle in proceeding with her gender
discrimination case. None of Riker’s research has been proven to be a false statement of fact.
Rather, the Commission offered no evidence showing that Riker’s research was faulty in either
the Hearing Panel proceedings or the Review Board proceedings. Failing to even produce
evidence that Riker’s research is flawed indicates that the Commission has not met their burden
of proving that Riker’s research yielded false statements. Nonetheless, even if the Commission
had been able to submit evidence that Riker’s research was incorrect, he would still be protected
10
by the second part of the actual malice standard, which indicates that even if a statement is found
to be false, the attorney would have had to convey the statement with a reckless disregard to its
truth. Here, Riker informed Shirley that his statements were based on research, which indicates,
his reasonable belief in their truthfulness.
2. If this Court adopts the objective reasonable attorney standard, Riker should
not be subject to sanctions because Riker had a reasonable factual basis for
making the statements
The reasonable attorney standard, set forth in Yagman, queries “what the reasonable
attorney, considered in light of all his professional functions, would do in the same or similar
circumstances [and] focuses on whether the attorney had a reasonable factual basis for making
the statements, considering their nature and the context in which they were made.” 55 F.3d 1430
(1995). Further, and most applicable here, attorneys should be given some freedom to criticize
judges, and the inquiry shall focus on the reasonable factual basis the attorney had for making
the statements. Id. The court will also look at “their nature and the context in which they were
made.” Id.
The argument for the use of the reasonable attorney standard is found in the stark
differences between defamation claims, actions where the malice standard is usually applied, and
actions relating to the rules of professional ethics. “Ethical rules that prohibit false statements
impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant
or offensive criticism, but to preserve public confidence in the fairness and impartiality of our
system of justice.” Id. Whichever standard this court adopts, Riker’s statements stand firmly
grounded in researched truth and are absent of the malice or wanton disregard for the truth.
Further, Riker’s statements pass the standard of reckless disregard for the truth, and further
11
satisfy the higher bar of reasonable belief that the statements he made were truthful. Garrison v.
La., 379 U.S. 64, 74-5 (1964).
The Review Board chose to forego any discussion on whether the reasonable attorney
standard should apply, as they found all of Riker’s statements to be protected by the First
Amendment. We agree with the Review Board that all of Riker’s statements will be protected by
the First Amendment; however, should this court apply a reasonable attorney standard, we find
that his statements, absent the extreme hyperbolic “codger” reference, are also squarely protected
by the actions of a reasonable attorney.
In the Panel Hearing’s application of the reasonable attorney standard, they noted that
Riker’s statements were “exactly the types of statements that the State has a strong interest in
preventing from being made.” The Panel Hearing interpreted Riker’s statement about Judge
Picard to as stating that Judge Picard was in some way “prejudiced.” We find the Hearing Panel
was erroneous in their assessment of Riker’s statements. In the email to Shirley, Riker stated
that Judge Picard was “very conservative” and that he views the evidence “in a light that is more
favorable to employers.” Riker’s statements to Shirley were made after he had performed his
due diligence in thoroughly researching recent gender discrimination cases as well as Judge
Picard’s employment discrimination case history. Riker discovered, by use of a legal research
aggregation tool, that Judge Picard sided with the employer in 75% of the cases he had decided.
When Riker stated that Judge Picard was “conservative” it was his estimation based on the facts
he had researched in the performance of his job.
Additionally, Riker’s statement that the evidence tended to be viewed in the light more
favorable to the employer, was not solely a statement about Judge Picard, but commentary on the
interpretation of the law at large. In his research, Riker stated that he also observed that the law
12
tended to be written and interpreted by the courts in a light more favorable to the employer. This
was not a targeted attack on Judge Picard’s predisposition to interpreting the law, but rather an
observation on the law at large.
William Riker’s research has yet to be contested or found to be factually inaccurate by
either the Hearing Panel or the Review Board. Further, even if Riker’s statements were found to
be false, he still shared them with Shirley after hours of research and based on the belief that they
were true. When Riker shared information with his client following his WesLex research he
acted as only a reasonable attorney would. He gave factual information to his client to prepare
her for the emotional and personal battle that would be involved in a case such as gender
discrimination. Riker acted out of the care and concern for his client and chose to disclose
information with her in a reasonable manner.
B. Riker’s email was a private communication not made public and therefore not
subject to the same scrutiny as public criticism
Riker was not able to violate Illiana’s Rule 8.2 because the contested statements were
made in a private email, as opposed to a public forum. The distinguishable difference speaks to
the purpose behind the enforcement of Rule 8.2. Both the Hearing Panel and Review Board
acknowledge the long-standing need for an open forum that allows for the free exchange of
ideas, even those that are unpopular and critical in nature, but admonishes those statements made
that can upset the integrity of the judiciary. In light of these two competing interests, Riker’s
private statements contained in an email between attorney and client strike the perfect balance of
providing the necessary level of criticism to lead the way towards positive change, while still
preserving the administration of justice.
The court in Isaac held that an attorney’s comments about the court that were made in a
private conversation were not subject to discipline because they were made outside the confines
13
of the court. 76 A.D.3d 48, 51 (N.T. 2010). The need for public censure to protect the esteem of
the court did not outweigh the attorney’s right to voice his opinion in a private forum. Id. The
Sawyer court found that the private statements made by an attorney did not have the same ability
to obstruct justice as those uttered publicly and for mass dissemination. 360 U.S. 622 (1959).
Here, Riker’s contested statements were made in a private email that he sent to his client,
Monica Shirley. The statements that were interpreted as critical of Judge Picard were intended to
be shared only with Shirley for her knowledge. Riker did not share the statements with her in a
public space or in the courthouse, where it could have been overheard by other administrators of
justice.
While it might be argued that Riker’s words reached more people than just Shirley when
she forwarded the email to her coworkers, this was not Riker’s intent. This is not an example of
an attorney attempting to spread public condemnation of the judiciary or even a dissemination of
critical pamphlets embarrassing the court. This was a single email passed confidentially between
attorney and client that discussed his recent research.
C. Riker’s statements are protected by the United States Constitution’s First
Amendment in either a balanced interest standard or a substantive inquiry of
the facts and opinions
The necessary evil of free speech is that in all likelihood, the citizens of a democracy will
be confronted with less than desirable words. There will be phrases that don’t fall easy on a
listener’s ears, missteps in remarks, and offenses of good taste. However, when “that erroneous
statement is inevitable in free debate… it must be protected if the freedoms of expression are to
have the ‘breathing space’ they ‘need to survive.’” 376 U.S. 254, 270 (1964). Despite the need
for breathing space, the courts recognize that there is a line to be drawn between merely bad
taste, and offensive speech that provides more harm than good. Id.
14
“It is a prized American privilege to speak one’s mind, although not always with perfect good
taste.” Id. Where speech has been made that accused of offending the standards of good taste
and propriety, a reconciliation must be made to determine if the contested speech can be cradled
under the safety of the large and protective arm of the First Amendment. Id. at 285. Courts have
either applied a form of a balancing test that weighs the competing interests at stake or a more indepth analysis of the substantive material of the contested speech. Berry v. Schmitt, 688 F.3d
290 (6th Cir. 2012).
In application of either the balancing test or the substantive inquiry, this Court should
uphold First Amendment protection of Riker’s statements because his words did not hamper the
fair administration of justice, and because they were either facts or opinions based on factual
information.
1. Balancing the Competing Interests at Stake
The first standard proffered by the courts to determine whether speech should be protected by the
First Amendment, is the balancing of competing interests at stake. This standard was expressed
in the Supreme Court of Indiana case, In re Wilkins. 777 N.E.2d 714, 717 (2002). The court
stated, “It is our belief that a generalized test cannot be drawn. Each prohibition, circumscribed
by the factual setting present in a particular case, must be examined in light of the affected State
interest and measured against the limitation placed on the freedom of expression.” Id.
The state’s interest in protecting the fair administration of justice is founded on the need
for the public’s steadfast confidence in its judiciary. Gardner, 793 N.E.2d 425, 419 (Ohio 2003).
When statements are so pernicious as to erode away at the judiciary’s reputed character, then
speech must be questioned as to whether it deserves the protection of the First Amendment.
15
Because attorneys are in a unique position to yank back the proverbial curtain that shields our
great and powerful judges, then their words become subject to greater scrutiny. Polk v. State Bar
of Texas, 374 F.Supp. 784, 788 (1974). Further, a greater premium is placed on the evaluation
of the attorney’s truthful speech. Gardner, 793, N.E.2d 425, 429 (Ohio 2003). “An attorney’s
speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of
justice” based on the “integral role that attorneys play in the judicial system.” Id.
The opposing interest, however, is the limitation that can be placed on the freedom of
expression to protect the judiciary from critical statements. Sullivan, 376 U.S. 254, 270 (1964).
As summarized in Sullivan, “Where judicial officers are involved, this Court has held that
concern for the dignity and reputation of the courts does not justify the punishment as criminal
contempt of criticism of the judge or his decision.” Id. The Sullivan court further discussed that
effective critical speech should not lose its constitutional protection merely because it is
achieving the job it set out to do; challenge the status quo and shine the inspecting light on
elected officials or judges. Id.
In the Wilkins case, the court held that the attorney, Wilkins, should be suspended for
thirty days based on statements he made in a brief questioning the reasoning behind the Indiana
Court of Appeals’ recent decisions. 777 N.E.2d 714 (2002). For their reasoning behind the
attorney’s sanctions, the court looked to the attorney’s false claims that were the basis of his
contested speech. Id. They held, “In this case, the state’s interest in preserving the public’s
confidence in the judicial system and the overall administration of justice far outweighed any
need for the respondent to air his unsubstantiated concerns in an improper forum for such
statements.” Id. at 718. The court also discussed Wilkins’s lack of evidence and his
“unwarranted” and inaccurate statements used in a document filed before the appellate courts.
16
Id. The court noted, “arguments on appeal must be supported by cogent reasoning, citations to
authorities, statutes or the record.” Id.
In the case at bar, Riker’s statements pass the initial standard of substantiation set forth in
Wilkins. Even absent Riker’s showing truthfulness of his statements, the base standard of
“substantiation” is met by Riker’s WesLex research that revealed that Judge Picard found in
favor of the defendant in 75% of employment discrimination cases. Both Wilkins and Sullivan
indicate that the interest of the state is best protected from false claims; but where the contested
information is substantiated, “the interest of the public outweighs the interest of… any other
individual. The protection of the public requires not merely discussion, but information.”
(Sullivan quoting Bridges pg. 8.) Here, Riker had investigated the information and was
providing it to his client in a private email, as opposed to a brief filed in the court. Further, Riker
provided the information for the purpose of informing his client so that she fully understood the
legal battle that was before her. This was not an exercise in mockery or an attempt at mere
discussion, but to provide the very “information” called for in Sullivan.
2. Substantive Inquiries of Fact and Opinion
The touchstone for the most actionable speech has been routinely maintained as “falsity.”
Standing Comm. On Discipline of the United States Dist. Court v. Yagman, 55 F.3d at 1437
(1955). Policy reasons indicate that speech critical in nature loses its virtuous ability to spark
improvement, the defended basis for critical speech, when the phrases are comprised of falsity;
as false statements are not able to expose the problems we seek to correct with our judiciary and
serve only to erode the public’s confidence in our legal system. Id.
A substantive inquiry into the contested statements, can demand breaking apart the
phrases to determine which parts were fact and which elements were opinion. However, as the
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Topp court held, “the important consideration... is not whether the particular statement fits into
one category or another, but whether the particular article provided sufficient information upon
which the reader could make an independent judgment for himself.” Idaho State Bar v. Topp,
925 P.2d 1113, 1115 (Idaho 1996). The line between fact and opinion is easily blurred in these
in-depth analyses. A fact is a factual piece of information; however an opinion might be based
on factual information, tainting it as something more than mere opinionated conjecture. Id.
In the case before us, Riker provided Shirley with information in a private email which
explained that he had performed research which led him to believe that Judge Riker, among other
courts, tended to view the evidence in the light most favorable to the employers. We agree with
the Review Board that this information was conveyed as either factual statements, or opinion
statements based on facts.
Statements of opinion are still held to a higher standard and cannot be merely waved off
with the broadly encompassing “freedom of expression” protection. Opinion statements are
generally characterized as those based on assumed or expressly stated facts; statements based on
implied or undisclosed facts; or statements of rhetorical hyperbole. Yagman, 55 F.3d 1430
(1995).
An opinion may be the basis for sanctions only if it could be reasonably understood “as
declaring or implying actual facts capable of being proved true or false.” Id. Statements based
on fully disclosed facts, the first variety of opinion, can be punished only if the stated facts are
found to be false and demeaning. Id. The reasoning behind this is when facts underlying a
statement of opinion are disclosed, the reader is able to understand that they are receiving the
author’s interpretation of the facts presented and they are able to make their own independent
evaluation of the facts. Id. However, where an opinion is expressed and facts are not disclosed,
18
then the reader or listener is unable to independently evaluate the information to determine if it is
true or false. Id. This would make such statements actionable, even if they fall within the
speaker or writer’s opinion. Id.
Where Riker informed Shirley of Judge Picard’s research-based statistical information,
he provided her with enough information for Shirley to objectively verify the statements.
Riker’s research indicated that Judge Picard sided with employers 75% of the time, which would
easily translate into a vast majority; or could be interpreted for the ease of communication, as a
“conservative” history. Riker also informed Shirley that the way the law was written, in and of
itself, gave more advantages to employers. Riker’s statements allowed for Shirley to verify this
information by viewing the language of the law and recent rulings herself, while still explaining
the basis for his opinion.
The only other statements of opinion that are exempt from sanctions are those that are
determined to be “rhetorical hyperbole” and do not imply criminal conduct. Gardner, 793
N.E.2d 425, 429 (Ohio 2003). Statements of rhetorical hyperbole require no additional facts or
information because they are intended to be automatically understood by the reader to be
exaggerated figurative claims. Id. Rhetorical hyperbole is recognized as opinion statements that
cannot be reasonably interpreted as stating facts. Id.
In Riker’s final statement about Judge Picard, he describes him as “an old codger who
hates greedy plaintiffs.” We agree with the Review Board’s determination that this statement is
the exact sort of rhetorical hyperbole referred to in both the Yagman and Gardner courts.
Riker’s statement does not imply any criminal conduct or even any misconduct at all. While
they are a discussion on Riker’s opinion of Judge Picard’s temperament, his use of the words
“codger” and “greedy” indicate a bombastic playfulness with language. A reasonable reader
19
would not interpret the word “codger” as a statement of actual fact. It is a word absent of
intentional literal meaning and was used to provide a final flourish of exaggeration for Riker to
convey how difficult Shirley’s case would be.
Under any and all lenses available to the court to view and analyze Riker’s statements
regarding Judge Picard, his statements should be free punishment of sanctions. Riker offered
Shirley a blend of well-research, undisputed factual information, opinions based on these facts,
and a final hyperbolic opinion.
II. MR. RIKER DID NOT CAUSE HIS CLIENT MONICA SHIRLEY TO
COMMUNICATE WITH A REPRESENTED PERSON IN VIOLATION OF
ILLIANA RULE OF PROFESSIONAL CONDUCT 4.2
The State of Illiana regulates and guides attorneys through its Rules of Professional
Conduct. Specifically, Rule 4.2 is promulgated as follows:
During the course of the representation of a client, a lawyer shall not
communicate or cause another to communicate on the subject of the
representation with a party the lawyer knows to be represented by a lawyer
in that matter unless the lawyer has the prior consent of the lawyer representing
such other party or is authorized by law to do so.
Illiana Rules of Prof’l Conduct Rule 4.2.
The Rule is followed by these subsequent relevant comments, among others:
Comment 1 - The purpose of this rule is to (1) prevent overreaching by adverse
counsel; (2) safegaurd the lawyer-client relationship from interference by adverse
councel; (3) reduce the likelihood that clients will disclose privileged or other
information that might harm their interests; and (4) safeguard clients from making
improvident settlements.
Comment 2 - The Rule applies even though the represented person initiates or
consents to the communication.
Comment 3 - Parties to a matter may communicate directly with each other, and a
lawyer is not prohibited from advising a client concerning a communication that
the client is legally entitled to make.
Illiana Rules of Prof’l Conduct Rule 4.2.
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Neither party contests that the employees contacted by Shirley were not “represented”
within the purposes of the Rule. (R1. at 10.) However, the scope of the Rule falls short as
applied to Mr. Riker, for (a) a client should not automatically count as “another” for the purposes
of the Rule, and (b) assuming a client may count as “another,” Mr. Riker’s conduct did not
overreach beyond zealous representation. These two points will be discussed in turn.
A. A client should not count as “another” for the purposes of Rule 4.2 as the “clear
standard” sought by the Review Panel should not automatically deem clients to
be “another” under the Rule
The Hearing Panel correctly recognized that whether a lawyer may instruct their client to
communicate with an opposing party is an “issue of first impression” in Illiana. (R1. at 10.) The
Review Board wisely sought a “clearer rule whereby attorneys will have a tangible standard to
govern their conduct.” (R2. at 8.) The preferable nature of a bright-line rule implores this Court
to definitely draw a standard as to what constitutes “another” under the Rule. Further, such a
line should be drawn not to include clients within its scope.
First, as a general matter, bright-line rules give much needed clarity to practicing lawyers.
Attorneys practice law under the ever-present Rules of Professional Conduct. Of course, the
utmost deference and respect must be and is given to these Rules. However, a firm grasp of what
the rules explicitly require and conversely prohibit is necessary for any well-meaning lawyer to
stay within the rules’ confines. Definite, explicit lines allow attorneys to remain within these
lines by instructing lawyers precisely what is forbidden and what is notwell.
Other states have recognized the “essential” nature of bright-line rules. San Francisco
Unified Sch. Dist. ex. rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1231 (2013).
Specifically, “as a practical matter, an attorney must be able to determine beforehand whether
particular conduct is permissible; otherwise an attorney would be uncertain whether the rules had
21
been violated until . . . he or she is disqualified.” San Francisco Unified Sch. Dist. ex. rel.
Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1231 (2013). There the court
recognized that an attorney’s ability to abide by the Rules heavily relies on the attorney knowing
what the rules specifically prohibit. Id. Though the court did not explicitly state so, it is implicit
that the alternative would limit even the most well-intentioned lawyer to proceeding via an
educated guess of whether his conduct was within the Rules. Put another way, abidance to the
law directly relies on the clarity of the law. This Court has a chance to provide precision to an
important area of law and should seize the opportunity.
Second, the conspicuous line this Court draws should not declare clients to automatically
be “another” under Rule 4.2. This is because the dividing line between overreaching and zealous
representation should not be projected so far as to hamper an attorney’s ability to effectively and
enthusiastically represent his client, nor should it simultaneously hamper clients’ rights.
The same court that recognized the wisdom in promulgating straightforward standards
simultaneously cautioned that “a rule whose violation could result in disqualification and
possible disciplinary action should be narrowly construed when it impinges upon a lawyer’s duty
of zealous representation.” San Francisco Unified Sch. Dist. ex. rel. Contreras v. First Student,
Inc., 213 Cal. App. 4th 1212, 1231 (2013). The initial 90-day suspension of Mr. Riker, despite
the Review Board’s ensuing appropriate reversal, illustrates the exposure well-meaning attorneys
face when these rules are unnecessarily broadened A clarification by this Court narrowly
construing Rule 4.2 would appropriately forbid the side-stepping the rule seeks to avoid yet
would not hamper zealous representation nor impede clients’ rights.
The American Bar Association (“ABA”) recently spoke to the scope of Rule 4.2. ABA
Comm. on Ethics and Prof’l Responsibility, Formal Opinion 11-461. The ABA recognized
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citizens’ free speech rights, definitively stating, “parties to a legal matter have the right to
communicate directly with each other.” Id. Of course, the ABA also recognized the effect of the
rule to prevent side-stepping by lawyers, acknowledging that counsel may not “use an
intermediary...to communicate directly with a represented person.” Id. However, in
acknowledging the necessary “no contact” effect of the rule the Opinion still proclaimed that at
times it is “desirable for parties to a litigation...to communicate directly even though they are
represented by counsel.” Id. These represented parties are nonetheless still entitled to counsel
regarding such communication, as “prohibiting such advice would unduly restrict the client’s
autonomy, the client’s interest in obtaining important legal advice, and the client’s ability to
communicate fully with the lawyer.” Id. In other words, clients have positive rights to
communicate with one another and also possess the right to counsel regarding such
conversations. A broad interpretation of Rule 4.2 would therefore simultaneously impede
clients’ rights and deter zealous representation. Such an interpretation thus cannot be in the State
of Illiana’s best interest.
Comment 3 to Rule 4.2 also supports the conclusion that clients are not “another” under
the rule. The comment reaffirms the notion that opposing parties to a lawsuit may communicate
directly with each other and also states that counsel is not barred from advising clients to
conversations of which the client has a legal right to engage. Illiana Rules of Prof’l Conduct R.
4.2 cmt. 3. Essentially, the Code’s authors seem to be reminding readers that clients are not
simply attorney’s agents but rather are independent persons with their own protected rights and
privileges. To classify client’s as “others” would be a failure to heed this reminder and would
ignore the special relationship clients maintain with their attorneys.
Sister jurisdictions have also spoken to the scope of the “no contact” rule. California
Comm. on Pro’l Resp. and Conduct Formal Op. 1993-131 (1993). For instance, the State Bar of
23
California Standing Committee on Professional Responsibility and Conduct addressed the scope
of the rule and the “line to be drawn.” Id. The committee recognized clients’ rights and was
cautious to advocate for any interpretation of the Rule that would “discourage[e] direct
communication between the parties themselves.” Id. While not binding upon this Court, the
wisdom in the committee’s hesitation to restrict clients’ rights speaks to the caution that must be
observed when a rule concerning lawyers’ conduct may be read so broadly as to constrict the
rights of the clients who employ these same attorneys.
New York has also contemplated the issue. Ass’n of the Bar of City of New York
Comm. on Professional and Judicial Ethics Formal Op. 2002-3 (2002). The jurisdiction has
advised to not automatically deem clients “another” under the “no contact rule.” Id.
Specifically, the Association of the Bar of the City of New York has declared that an “overly
broad construction of [the no contact rule] is at odds with modern authority.” Id. Further, a
“strong public policy in favor of resolving disputes . . . is undermined by an overly expansive
interpretation [of the rule].” Id. Though also not binding upon this Court, sister jurisdictions’
hesitation to automatically deem clients “another” under the Rule suggests a similar restraint
should be demonstrated here.
Because a broad interpretation of the Rule would affect not only attorneys but the clients
they represent, the line drawn by this Court should respect the free speech rights of clients who
the vast majority of which have never sought admission to the State Bar nor sworn adherence to
the Rules of Professional Conduct.
Thus, to simply deem all clients automatically “another” for the purposes of Rule 4.2
would be to disregard the aforementioned rights and entitlements of clients as well as the
reasoned conclusions of sister jurisdictions. Instead, “another” as it is written in Rule 4.2 seems
24
to implicate situations where an overzealous lawyer side-steps the “no contact” rule by
affirmatively acting through a person with agent-like capacity rather than a client with the
recognized and protected right to communicate with adverse parties.
B. Assuming a client counts as “another” for the purposes of Rule 4.2, the Review
Panel correctly determined Mr. Riker did not overreach as the client
orchestrated the communication which Mr. Riker did not later ratify
The Review Board correctly held that, even if the client Monica Shirley is “another”
under the rule, Mr. Riker did not overreach and “cause” the communication with the represented
employees. (R2. at 10.) First, Riker’s actions did not show any intent to side-step Rule 4.2.
Second, Mr. Riker did not ratify the his client’s actions upon becoming aware of them.
1. Mr. Riker demonstrated no intent to side-step the “no contact” rule as the
communication was orchestrated by the client and not Mr. Riker
The key determination in this issue revolves around whether Mr. Riker demonstrated any
intent or conduct that “caused” the client to communicate with represented parties. Though the
Rule does not define the term, “cause” for purposes of the Rule can mean when counsel “knew
or reasonably should have known that there was a substantial risk” of contact with a represented
party. Bd. of Prof’l Resp. v. Melchior, 269 P.3d 1088 (Wyo. 2012). To be at fault, there must be
the aforementioned intent to “orchestrat[e]” the forbidden contact. San Francisco Unified Sch.
Dist. ex. rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1233 (2013).
Any careful review of the circumstances leads to the conclusion that Mr. Riker did not
“cause” the communication within any reasonable definition of the term. Mr. Riker did not
know nor reasonably should have known that she would contact her coworkers seeking this
information as she gave no indication towards her future actions. Further, nothing indicated she
would doctor the information into the form of a survey. Although he made his client aware of
the information that would eventually be needed as any reasonable attorney would, at a
25
minimum he had no reason to believe his client would transform his work into a survey, add a
signature line at the bottom, and send this document to represented parties. Taken together, these
actions show a careful coordination by the client to contact represented parties. No action by Mr.
Riker shows any intent to side-step the Rule.
Mr. Riker’s actions -or more accurately inaction- are analogous to the case of San
Francisco Unified School District ex re. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212
(2013). In that case, a client communicated with represented coworkers against the knowledge
and consent of either side’s counsel. Id. The court held the attorney was not in violation of any
ethical rule as the client was not working at the “behest of counsel.” Id. Similarly here, Ms.
Shirley initiated the conversation herself and not on the “behest” of Mr. Riker. Though Mr. Riker
told his client he would require demographic information from the coworkers, the client and not
Mr. Riker took the action of transforming the information into a survey. Further, the client and
not Mr. Riker sent the email to the represented coworkers. This case, unlike any other cited by
the Hearing Panel, is therefore the most analogous to the situation at hand. This Court should
follow precedent and not fault Mr. Riker for his client’s actions. Mr. Riker’s actions, like those
in the aforementioned case, were passive. The orchestration was conducted by the client and Mr.
Riker should not be held at fault.
Through the history of this case, the only body to find fault with Mr. Riker’s action was
the preliminary Hearing Panel. (R1. at 15.) Seeking justification for the suspension of Mr.
Riker’s license, the Panel recognized the “lack of authority” on this issue and without citation or
explanation sought “guidance from civil litigation cases where courts must determine the
existence of ethical violations.” (R1. at 12.) Rather than focus on Mr. Riker’s actions to
determine whether Rule 4.2 was violated, the Hearing Panel instead used these inconsistent
26
situations to find fault in his actions. Though perhaps well-intentioned, the analogies the
Hearing Panel originally drew were thin at best and not apt for the case at hand. The cases the
Hearing Panel inappropriately relied on provide a shaky foundation upon which to build a case
against Mr. Riker and are easily distinguished.
The Hearing Panel cited Holdren v. General Motors Corp. (R1. at 12.) In that case, a
lawyer’s client suggested that they -the client- could obtain affidavits from represented
coworkers. Holdren v. Gen. Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998). The lawyer
instructed the client on how to draft an affidavit and even went so far as to attempt to educate the
client on the admissibility of out-of-court statements. Id. No similar course was followed here.
Rather, unlike the attorney in Holdren, after Monica Shirley suggested that Mr. Riker meet with
Ms. Shirley’s boss, Mr. Riker immediately paraphrased Rule 4.2 to his client advising them he
could not talk to a represented party. Mr. Riker only advised Ms. Shirley of her right to speak
with her boss after she directly questioned Mr. Riker whether she could do so. In other words,
unlike in Holdren where the lawyer took affirmative steps instructing the client about the law
and legal techniques, Mr. Riker only gave honest answers to a concerned client and in no way
orchestrated the contact.
The Panel also incorrectly relied on In re Pyle. (R1. at 11.) In that case, a lawyer drafted
two affidavits to be delivered by the client to the opposing party. In re Pyle, 91 P.3d 1222 (Kan.
2004). Here, Mr. Riker did not draft the final document sent by his client to other represented
parties. Instead, Mr. Riker merely told Ms. Shirley what type of biographical information would
later be needed from her coworkers. Unlike In re Pyle where the lawyer drafted the document,
here the client constructed the email by doctoring the information and adding a signature line to
27
promote the document’s veracity. This shows another case the Panel relied on to be
distinguishable and unable to justify the initial decision against Mr. Riker.
The Panel further relied on In re Marietta. (R1. at 11.) In that case, the attorney
prepared a release of liability to be signed by the opposing party and supplied it to his client. In
re Marietta, 569 P.2d 921 (Kan. 1977). The Kansas Supreme Court held the lawyer at fault as
the attorney knew of the client’s intention and effectively allowed the client’s actions as a way to
circumvent the “no contact” rule. Id. Here, unlike In re Marietta, the client acted secretly by
doctoring and sending the email. Mr. Riker’s unawareness toward his client’s actions thus show
no intent to “cause” illicit contact. This further demonstrates the Panel’s troubling reliance on
distinguishable cases was not well founded.
Finally, this situation is unlike the non-client cases of In re Ostisis, Gidatex, and
Bratcher. In each of those cases counsel acted through an agent who was not their client. In re
Ositis, 40 P.3d 500 (Ore. 2002); Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F.Supp.2d 119
(1999); Bratcher v. Ky. Bar Ass'n, 290 S.W.3d 648 (Ky. 2009). These cases do not reflect the
situation at hand where a client orchestrated the nefarious contact to further their own cause.
Instead, they provide examples of counsel employing others to accomplish various tasks and are
therefore mostly irrelevant. The Panel’s reliance on these non-similar cases is misplaced and
underscores the Review Board’s wisdom in overturning the initial decision.
Overall, the Panel’s troubling reliance on off-point and irrelevant cases betrays any
assertion that the suspension of Mr. Riker’s license was justified. In short, Mr. Riker’s actions in
no way illustrated an intent to have his client side-step the Rule 4.2.
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2. Mr. Riker did not ratify his client’s actions after learning of the forbidden
conduct
Finally, the Commission makes the argument that, even though any attempt to side-step
the “no contact” rule was made by the client and not by Mr. Riker, he nevertheless should be
held liable for allegedly ratifying his client’s actions. Ratification means “the confirmation of a
previous act done either by the party himself or by another.” In re Anonymous, 819 N.E.2d 376
at 379 (Ind. 2004). Such ratification, however, did not take place.
The ratification theory is found in the case of In re Anonymous, 819 N.E.2d 376 (Ind.
2004). In that case, a lawyer was aware of his client’s nefarious attempt to have a represented
party sign an affidavit without counsel. Id. The Supreme Court of Indiana held that the lawyer
was still liable as the attorney “ratified” the contact by being aware of his client’s intent yet
failing to intervene. Id. Essentially, the court found the attorney’s “active participation” after
learning of the contact akin to ratification of the contact and therefore an overreach beyond
zealous representation. Id.
Here, Mr. Riker did not approve or endorse any improper contact made by his client.
Instead, Mr. Riker was only made aware of the emails after the information was obtained. As
Mr. Riker was zealously conducting a three-day jury trial for another client, he told his client it
“may be a while before I can get to this” and that Ms. Shirley should “be sure they understand
the legal consequences” of the document. Unlike the attorney in In re Anonymous, rather than
acceptance his client’s actions or the information procured, Mr. Riker instead told his client that
the coworkers should understand the effect that such answers may have. This suggests that,
instead of trying to circumvent having to contact other parties through counsel, Mr. Riker
through this advice attempted to send the parties toward consultation with council. This is hardly
analogous to a ratification of Ms. Shirley’s actions but is closer to a rejection of her conduct.
29
Further, the Court in Anonymous stated that if counsel “simply received the [information]
obtained by a client without suggesting, directly or indirectly, any contact between the two, no
violation would have occurred.” 819 N.E.2d at 379. This is precisely what has occurred here.
Therefore, it seems even the court that suggested the ratification theory would agree it cannot be
employed here.
Overall, the Review Board’s astute overturning of the initial decision must stand as Mr.
Riker in no way caused his client to communicate with represented parties in violation of Rule
4.2
CONCLUSION
WHEREFORE, for the reasons stated above, respondents respectfully request this Court
AFFIRM the decision of the Illiana Review Board.
Respectfully submitted,
Counsel for Respondent
Team 5
January 17, 2014
30