No. 2014-274
In The Supreme Court of Illiana
ILLIANA PROFESSIONAL RESPONSIBILITY
DISCIPLINARY COMMISSION,
Petitioner,
v.
WILLIAM T. RIKER,
Respondent.
On Writ of Certiorari to the
Illiana Review Board
BRIEF FOR THE PETITIONER
TEAM 3
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................................ 3
QUESTIONS PRESENTED FOR REVIEW ................................................................................... 5
STATEMENT OF THE CASE ............................................................................................................ 6
Procedural History ............................................................................................................................................. 6
Illiana’s Rules of Professional Conduct ........................................................................................................ 6
Factual History.................................................................................................................................................... 8
SUMMARY OF THE ARGUMENT ................................................................................................ 11
I. Rule 8.2: Statements Impugning a Judicial Officer......................................................................... 12
II. Rule 4.2: “No Contact Rule” ................................................................................................................. 14
STANDARD OF REVIEW ................................................................................................................. 16
ARGUMENT.......................................................................................................................................... 17
I. WILLIAM T. RIKER’S CRITICISMS OF JUDGE JEAN-LUC PICARD VIOLATED
ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2 BECAUSE RIKER
KNOWINGLY MADE STATEMENTS WITH A RECKLESS DISREGARD TO THE
TRUTH, AND HIS STATEMENTS ARE NOT PROTECTED UNDER THE FIRST
AMENDMENT. ..................................................................................................................................... 18
A. Riker’s criticisms of Judge Picard violate Rule 8.2 under the applicable reasonable attorney
standard from Yagman................................................................................................................................... 20
B. Alternatively, if this Court applies the actual malice standard from New York Times, Riker’s
criticisms of Judge Picard would still violate Rule 8.2. .......................................................................... 23
C. Riker’s statements are not protected under the First Amendment and thus his criticisms of
Judge Picard are sanctionable as they run afoul of Rule 8.2. ............................................................... 25
1. Under the applicable “balance of the competing interests” test, the State’s interest in the
administration of justice outweighs Riker’s interest in free speech............................................................. 26
2. Alternatively, Riker’s statements are opinions implying a false assertion of fact and contain no
objectively verifiable matters. .................................................................................................................................. 29
II. WILLIAM T. RIKER VIOLATED ILLIANA’S RULE OF PROFESSIONAL
CONDUCT 4.2 WHEN HE CAUSED ANOTHER, HIS CLIENT, MONICA SHIRLEY,
TO COMMUNICATE WITH REPRESENTED PERSONS IN THE EMPLOYMENT
DISCRIMINATION LAWSUIT. ...................................................................................................... 31
A. Riker’s client, Shirley, constitutes “another” for the purposes of Rule 4.2. .............................. 32
B. Riker prompted Shirley to meet with her co-workers, who were represented persons, for the
purpose of obtaining beneficial information relevant to Shirley’s employment discrimination
case. ..................................................................................................................................................................... 34
C. Although Riker may not have known about Shirley’s creation of documents for her coworkers to sign, he still became responsible for both those documents and his client’s actions,
and hence violated Rule 4.2 when he was made fully aware of both the documents and her
actions and subsequently, ratified their existence with a conscious decision to cause detriment to
the opposing party. .......................................................................................................................................... 41
CONCLUSION ...................................................................................................................................... 47
2
TABLE OF AUTHORITIES
United States Supreme Court Cases
Garrison v. La., 379 U.S. 64 (1964) ........................................................................................23, 25
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ......................................................16, 27, 30
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) ...........................................23
In re Sawyer, 360 U.S. 622 (1959) ................................................................................................27
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ...............................................................28, 29
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .......................................................... passim
United States Court of Appeals Cases
Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012)............................................................19, 25, 28, 30
Standing Comm. on Discipline of the United States Dist. Ct. v. Yagman,
55 F.3d 1430 (9th Cir. 1995) ............................................................................................. passim
United States Dist. Ct. v. Sandlin, 12 F.3d 861 (9th Cir. 1993).....................................................20
United States District Court Cases
Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998) ................................38, 44
State Court Cases
Idaho State Bar v. Topp, 925 P.2d 1113 (Idaho 1996) ............................................................21, 29
In re Anonymous, 819 N.E.2d 376 (Ind. 2004) ............................................................32, 41, 42, 43
In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990) .....................20, 21, 22
In re Green, 11 P.3d 1078 (Colo. 2000) ................................................................................ passim
In re Marietta, 569 P.2d 921 (Kan. 1977) ...............................................................................32, 34
In re Pyle, 91 P.3d 1222 (Kan. 2004) .................................................................................... passim
In re Wilkins, 777 N.E.2d 714 (Ind. 2002)............................................................................. passim
Matter of Holtzman, 577 N.E.2d 30 (N.Y. 1991) ..........................................................................20
Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003) ..................19, 20, 22, 28
State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Okla. 1988) ..........................23, 24, 27
3
Constitutional Provisions
U.S. Const. amend. I ......................................................................................................................24
Other Authorities
ABA Formal Ethics Op. 11-461 (2011) ................................................................................. passim
California Comm. on Prof’l Responsibility and Conduct,
Formal Op. 1993-131 (1993) ...............................................................................................34, 39
4
QUESTIONS PRESENTED FOR REVIEW
I.
Do William T. Riker’s criticisms of Judge Jean-Luc Picard violate Illiana’s Rule of
Professional Conduct 8.2, which prohibits an attorney from making statements that he
knows to be false or with a reckless disregard to the truth regarding a judge’s
qualifications or integrity, where in an email to his client, Monica Shirley, Riker accused
Judge Picard of impartially weighing evidence in employment law cases, improperly
relying on political motivations, and exhibiting bias against plaintiffs?
II.
Did William T. Riker cause his client, Monica Shirley, to communicate with a
represented person in violation of Illiana’s Rule of Professional Conduct 4.2, which
prohibits such communication unless opposing counsel gives consent or the law
authorizes such communication, where Riker drafted an email to Shirley with a list of
information that he wanted to obtain from Shirley’s co-workers, who he knew were
represented persons in her employment discrimination case, in order to prevail in the
case; where Riker encouraged Shirley to discuss the discrimination lawsuit with her coworkers in order to obtain the information necessary to prove the case; where once Riker
was aware Shirley doctored his email and obtained written statements from represented
persons, Riker failed to properly counsel and follow up with Shirley about advising her
co-workers of the legal consequences of their statements; and where Riker used the
information obtained from Shirley’s co-workers in an attempt to gain an advantage in
litigation without opposing counsel’s prior knowledge or consent?
5
STATEMENT OF THE CASE
Respondent, William T. Riker, is a licensed attorney practicing law in the state of Illiana.
Petitioner, Illiana Professional Responsibility Disciplinary Commission (“Disciplinary
Commission”), through Executive Secretary Cray, filed an attorney disciplinary action against
Riker for violating Rule 8.2 and Rule 4.2 of Illiana’s Rules of Professional Conduct due to his
unethical conduct while representing his client, Monica Shirley, in her employment
discrimination case. Illiana Bd. of Prof’l Responsibility Hearing Panel Order, No. 8-2013, at 4-5
(Aug. 11, 2013).
Procedural History
On August 11, 2013, the Illiana Board of Professional Responsibility Hearing Panel
(“Hearing Panel”) found attorney Riker in violation of: (1) Illiana’s Rule of Professional
Conduct 8.2 for making false statements regarding a judicial officer, Judge Jean-Luc Picard, and
(2) Illiana’s Rule of Professional Conduct Rule 4.2 for causing his client, Monica Shirley, to
communicate with a represented person. Hearing Panel Order at 15. The Hearing Panel imposed
sanctions in the form of a 90-day suspension from the practice of law. Hearing Panel Order at 15.
Thereafter, Riker appealed to the Illiana Review Board (“Review Board”), who reviewed the
case and dismissed all charges against Riker. Illiana Review Bd. Op., No. 2013-650, at 11 (Sept.
10, 2013). The Disciplinary Commission timely filed a petition for writ of certiorari, which this
Court granted on October 1, 2013. Illiana Sup. Ct. Order, cert. granted, No. 2014-274 (Oct. 1,
2013).
Illiana’s Rules of Professional Conduct
Illiana generally prohibits attorneys from making statements that they know to be false or
with reckless disregard to the truth concerning the qualifications or integrity of a judge. Hearing
6
Panel Order at 5; Illiana’s Rules of Prof’l Conduct R. 8.2. Illiana also prohibits attorneys from
communicating with an adverse represented person in regard to the matter for which that person
is represented without prior consent or authorization, which includes causing another to
communicate with the represented person in the attorney’s place. Hearing Panel Order at 9;
Illiana’s Rules of Prof’l Conduct R. 4.2.
Illiana’s Rule 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.
Hearing Panel Order at 5; Illiana’s Rules of Prof’l Conduct R. 8.2; See also Model Rules of
Prof’l Conduct R. 8.2 (2013).
Illiana’s Rule 4.2 provides:
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.
Comment 1 – The purpose of this rule is to (1) prevent overreaching by adverse
counsel; (2) safeguard the lawyer-client relationship from interference by adverse
counsel; (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.
7
Hearing Panel Order at 9; Illiana’s Rules of Prof’l Conduct R. 4.2; See also Model Rules of
Prof’l Conduct R. 4.2 (2013).
Otherwise, Illiana’s Rules of Professional Conduct are identical to the American Bar
Association’s Model Rules of Professional Conduct.
Factual History
On December 15, 2012, William T. Riker met with Monica Shirley to discuss her
recently filed gender discrimination claim with the EEOC against her employer, Wall Street
Bank. Hearing Panel Order at 1. Shirley believed that she was unfairly passed over for a
promotion due to her gender and retained Riker to represent her in the pending matter. Hearing
Panel Order at 1. Shirley informed Riker that she enjoyed her job at the bank and wished to
resolve the issue without jeopardizing her employment if possible. Hearing Panel Order at 1-2.
Riker agreed to look into the case and began exchanging text messages with Shirley.
Hearing Panel Order at 2. During the course of these text messages, Shirley offered to set up a
meeting between Riker and her boss, Jim Duggan. Hearing Panel Order at 2. Riker advised
Shirley that he could not met with her boss or co-workers because they were represented by an
attorney hired by Wall Street Bank to defend the case. Hearing Panel Order at 2. Riker told
Shirley he would need to get the defense lawyer’s permission before speaking with them.
Hearing Panel Order at 2. However, Riker also informed Shirley that she could speak with her
boss and fellow employees about anything as only he was barred from speaking with them.
Hearing Panel Order at 2. Riker told Shirley he would see what information they would need to
prove the case and then they could both begin gathering the information. Hearing Panel Order at
2.
8
Riker began researching the matter on WesLex, a legal research site. Hearing Panel Order
at 2. Riker discovered that the law and its interpretation favored the employer but reasoned that
the case would be a “slam dunk” if he could prove a systematic pattern of discrimination at the
bank. Hearing Panel Order at 2. In order to prove this, Riker determined he would need to obtain
the name, job title, age, sex, years employed, promotions, and any information regarding
discrimination heard of or experienced by each of Shirley’s co-workers. Hearing Panel Order at
3.
Riker also used an aggregation tool on WesLex and discovered that Judge Jean-Luc
Picard, age 62, had presided over many employment law cases in the district and found in favor
of the employer 75% of the time. Hearing Panel Order at 2.
After conducting this research, Riker sent Shirley an email. Hearing Panel Order at 3;
Exhibit A. He informed Shirley that the law is written and interpreted in a way that gives more
advantages to the employers and that Judge Picard was the worst with these cases. Exhibit A.
Riker told Shirley that Judge Picard was very conservative in relation to employment law cases
and that he would view the evidence in a light more favorable to employers. Exhibit A. Riker
also called Judge Picard “an old codger who hates greedy plaintiffs.” Exhibit A.
In regard to criticisms of Judge Picard, Riker’s email to Shirley provided in relevant part:
I did some preliminary research on your discrimination case. 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 he is an old
codger who hates greedy plaintiffs. We will have an uphill battle if he presides
over our case.
Exhibit A.
9
In the same email, Riker also included a list of all of the information that was needed
from Shirley’s co-workers to prove the case, including: name, job title, age, sex, years worked,
promotions received, personally experienced discrimination, and heard of instances of
discrimination. Exhibit A. Riker ended the email by telling Shirley that it might be difficult to
gain information about personal experience and knowledge of discrimination, as employees may
not feel comfortable sharing such information at a deposition or trial with the bank’s attorney
present. Exhibit A.
After receiving the email, Shirley added space between each item on Riker’s list of
information that was needed in order to provide room for her co-workers to answer. Hearing
Panel Order at 3. Shirley also added a signature line. Hearing Panel Order at 3. Shirley then
forwarded the email, including her changes, to her co-workers at the bank asking them to fill it
out and to include any other relevant information before signing and emailing it back. Hearing
Panel Order at 3; Exhibit B.
After collecting this information from her co-workers, Shirley sent their signed answers
to Riker and carbon copied Wesley Crusher, Riker’s law clerk. Hearing Panel Order at 3; Exhibit
C. Riker responded to Shirley via text message as follows: “Oh wow, in a rush right now. in (sic)
the middle of a 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.” Hearing Panel
Order at 3. However, Shirley never explained the legal consequences of the statements to her coworkers, and Riker never followed up to ensure that Shirley communicated the legal
ramifications of their communications. Hearing Panel Order at 3-4. Later that day, Riker also
sent an email to Crusher stating that Shirley was a loose cannon who could not be stopped from
doing whatever she wanted. Hearing Panel Order at 3; Exhibit D.
10
On January 9, 2013, Riker filed a lawsuit on behalf of Shirley against Wall Street Bank
for employment discrimination. Hearing Panel Order at 4. On June 20, 2013, Riker conducted a
deposition of one of Shirley’s co-workers, Ira Adams. Hearing Panel Order at 4. At the
deposition, Riker attempted to use Adams’ signed statement to elicit testimony. Hearing Panel
Order at 4; Exhibit E. The defense attorney objected and ordered Adams to stop answering all
questions. Hearing Panel Order at 4; Exhibit E. The defense attorney stopped the deposition and
filed a Motion for Protective Order claiming that the written statements were obtained via an
ethical violation of Rule 4.2 because Riker caused his client to communicate with represented
persons in the discrimination lawsuit; therefore, the statements must be stricken. Hearing Panel
Order at 4; Exhibit E.
On June 27, 2013, a hearing was held on the issue in the District Court for the Northern
District of Illiana. Hearing Panel Order at 4. Judge Sparks held that the written documents
contained statements against Wall Street Bank’s interest under both the Federal and Illiana Rules
of Evidence. Hearing Panel Order at 4. However, Judge Sparks denied the motion under the
theory that any rule whose violation could result in disciplinary action should be narrowly
construed. Hearing Panel Order at 4. Judge Sparks and the defense attorney forwarded the signed
statements to the Disciplinary Commission for further review. Hearing Panel Order at 4. The
Disciplinary Commission found the statements problematic in light of Rules 8.2 and 4.2, and
thus Executive Secretary Cray filed a disciplinary complaint against Riker for misconduct, which
was brought before the Hearing Panel. Hearing Panel Order at 4-5.
SUMMARY OF THE ARGUMENT
This Court should reverse the Illiana Review Board’s decision and find that attorney
William T. Riker’s unethical actions are sanctionable under Rule 8.2 and Rule 4.2 of Illiana’s
11
Rules of Professional Conduct. Riker is an officer of the court who is held to the high ethical
standards set forth in Illiana’s Rules of Professional Conduct. In representing his client, Monica
Shirley, in her employment discrimination case, Riker did not comport with Illiana’s Rules of
Professional Conduct in the following two ways: (1) Riker violated Rule 8.2 by falsely
criticizing Judge Picard in an email to Shirley; and (2) Riker violated Rule 4.2 by causing his
client, Shirley, to communicate with represented persons in violation of the “no contact rule.”
I.
Rule 8.2: Statements Impugning a Judicial Officer
First, Riker violated Rule 8.2 by making unsubstantiated claims regarding Judge Picard’s
actions on the bench and reputation.
When reviewing attorney disciplinary actions involving violations of Rule 8.2, the
applicable standard is the “objective reasonable attorney standard” rather than the “subjective
actual malice standard” because the interests served by attorney disciplinary actions are vastly
different from the interests served by defamation cases. Attorney disciplinary actions are not
meant to remedy a private wrong like defamation cases, but rather serve to protect the integrity
of the judicial system and the public administration of justice. Hence, under the applicable
reasonable attorney standard, a reasonable attorney under similar circumstances would not have
falsely accused Judge Picard of impropriety because such statements adversely affect the
administration of justice and undermine the public’s faith in the judicial system; thus, Riker’s
statements are sanctionable under Rule 8.2.
Alternatively, if this Court applies the subjective actual malice standard, Riker’s
statements still run afoul of Rule 8.2. Under the actual malice standard set forth in New York
Times v. Sullivan, a defamation case, Riker knowingly made statements with a reckless disregard
to the truth based on insufficient evidence and conjecture. Riker should have known that his
12
statements were false because he relied on no actual evidence when criticizing Judge Picard’s
actions on the bench and reputation.
Second, Riker’s statements are not protected under the First Amendment and therefore
are sanctionable under Rule 8.2. The issue of whether the First Amendment can shield attorneys
from sanctions involving speech that is critical of a judicial officer is one of first impression. The
First Amendment protects attorney’s statements impugning the integrity of a judge from
sanctions unless the statements are capable of being proven true or false. Statements of opinion
are constitutionally protected unless they imply a false assertion of fact. Generally, lower courts
around the country decide whether the First Amendment shields an attorney’s criticisms of a
judge from disciplinary action by either (1) weighing the competing State’s interest in the
administration of justice with the speaker’s interest in free speech, or (2) determining whether
the statement is mostly fact or mostly opinion and whether it contains “objectively verifiable
matters.”
Under the applicable balancing test, Riker’s statements falsely accusing Judge Picard of
impartially weighing evidence in employment law cases, improperly relying on political
motivations, and exhibiting bias against plaintiffs are not afforded protection under the First
Amendment because Illiana’s interest in the administration of justice outweighs Riker’s interest
in free speech. Riker’s statements to his client are not of a de minimis character; they undermine
the public’s confidence in the judicial system by falsely asserting prejudice. As an officer of the
court, Riker has a duty to defend the integrity of the judicial process rather than to falsely
disparage it.
Additionally, Riker cannot be immunized from sanctions by arguing that he criticized
Judge Picard in a private email before his client’s case was pending. Riker’s email was not
13
merely a private email to his client, but rather was distributed to multiple represented persons on
the opposing side as well as to opposing counsel. Therefore, these unfounded criticisms seriously
undermine the judicial process and the integrity of the court because Judge Picard is a prominent
figure presiding over employment law cases in this district, and these statements were circulated
to both sides of a pending employment discrimination lawsuit.
Alternatively, if this Court conducts an inquiry into whether Riker’s statements are
mostly fact or mostly opinion, Riker’s criticisms of Judge Picard still contravene Rule 8.2.
Riker’s statements about Judge Picard’s activities on the bench and reputation are based upon a
faulty basis of fact even if they are considered to be opinion, which is generally protected under
the First Amendment. However, even statements that appear on their face to be opinions are not
necessarily granted First Amendment protection if like here, they imply a false assertion of fact.
Riker based his statements on “preliminary research” that he did not disclose to his client.
Because Riker made these statements to Shirley without providing the necessary facts for her to
objectively verify, Riker’s statements are not protected.
II.
Rule 4.2: “No Contact Rule”
Riker’s statements also violated Rule 4.2, which prohibits attorneys from communicating
or causing another to communicate with represented persons on the subject of representation.
According to Comment 1 of Rule 4.2, the underlying purposes of this rule are to; (1) prevent
overreaching; (2) safeguard the lawyer-client relationship from interference; (3) reduce the
likelihood that clients will disclose privileged information; and (4) safeguard clients from
making improvident settlements. When Riker emailed Shirley a list of information he needed to
obtain from Shirley’s co-workers, Riker not only drafted the functional equivalent of a binding
legal document, but he also assisted Shirley in obtaining privileged information from her co-
14
workers, who were represented by opposing counsel, and used this information to gain a tactical
advantage in litigation.
At the outset, the issue of whether a client constitutes “another” for the purposes of Rule
4.2 is an issue of first impression. Both American Bar Association Formal Ethics Opinions and
persuasive case law from other jurisdictions have held that clients can constitute another for the
purposes of Rule 4.2 if the lawyer violates the underlying principles of Rule 4.2. Therefore,
Riker’s client, Shirley, should constitute “another” for the purposes of Rule 4.2.
Assuming that Shirley constitutes “another” for the purposes of Rule 4.2, Riker’s actions
contravened Rule 4.2 because Riker not only assisted his client in drafting what would become a
signed written statements from Shirley’s co-workers, he failed to provide the necessary
safeguards, and attempted to use the impermissibly obtained information from Shirley’s coworkers to his advantage during the litigation. Riker caused his client to communicate with
represented persons to obtain confidential information that he would not otherwise be able to
directly obtain from the represented persons without opposing counsel’s consent. Riker
attempted to circumvent Rule 4.2 in order to gain an advantage in litigation by using his client as
a conduit to obtain statements against the bank’s interest and privileged information from
represented persons on the opposing side of the employment discrimination case.
Based on what Riker had told Shirley about what their case needed in order to be a “slam
dunk,” Shirley reasonably believed that she would be of use to Riker if she could obtain the
necessary information. Once Riker told Shirley exactly would help them win their case, Shirley
wasted no time and communicated with her co-workers about evidence of discrimination in the
workplace. She initiated her communication with her co-workers because of Riker’s instigation.
But for, Riker telling Shirley that he cannot talk to her co-workers and then explaining that they
15
needed information from the co-workers, Shirley would never have communicated with them,
while they were represented by opposing counsel. Therefore, based on Shirley’s reliance on
Riker to base her decision to communicate with her co-workers, Riker violated Rule 4.2 by
causing Shirley to communicate with parties represented by opposing counsel.
Alternatively, even though Shirley obtained the signatures of her co-workers without the
knowledge of Riker, once she informed him of the wealth of information that she gathered in
signed statement form, he failed to adequately counsel her on the ramifications of
communicating with represented parties without the permission of their counsel. Additionally,
Riker failed to then actually get verification that Shirley had informed her co-workers about the
possible consequences of their signed statements. Riker then can be said to have ratified the
signed documents that Shirley gave him due to his (1) failure to ensure that they were obtained
both ethically and legally; and (2) demonstrated intention to use the obtained documents shown
by his attempt to do so in one of Shirley’s co-worker’s depositions. Ultimately, Riker’s failure to
ensure the ethical obtainment of the signed statements and then his subsequent intention of using
those statements in a legal proceeding show that he ratified the signed statements, and as such,
caused Shirley to communicate with her legally represented co-workers in violation of Rule 4.2
of Illiana’s Rules of Professional Conduct.
Therefore, this Court should reverse the Illiana Review Board’s decision and find that
Riker’s actions are sanctionable under both Rule 8.2 and Rule 4.2 of Illiana’s Rules of
Professional Conduct.
STANDARD OF REVIEW
This Court must review de novo the Illiana Review Board’s findings of fact and
conclusions of law in the underlying attorney disciplinary action to determine: (1) whether
16
William T. Riker’s criticisms of Judge Jean-Luc Picard violated Illiana’s Rule of Professional
Conduct 8.2; and (2) whether Riker violated the “no contact rule” by causing his client, Monica
Shirley, to communicate with a represented person in violation of Illiana’s Rule of Professional
Conduct 4.2. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038 (1991) (holding that an
independent examination of the entire record is required in cases raising First Amendment
issues); In re Wilkins, 777 N.E.2d 714, 714 (Ind. 2002) (“Where a party petitions this Court for
review, we review de novo the record presented us to reach the ultimate conclusion as to
misconduct and sanction therefore.”); Illiana Sup. Ct. Order, cert. granted, No. 2014-274 (Oct. 1,
2013).
ARGUMENT
This Court should reverse the decision of the Illiana Review Board and find that William
T. Riker’s actions are sanctionable under both Rule 8.2 and Rule 4.2 of Illiana’s Rules of
Professional Conduct. First, Riker’s criticisms of Judge Picard violated Rule 8.2 of the Illiana
Rules of Professional Conduct because under the applicable standard, a reasonable attorney
under similar circumstances would not make such impugning statements against a judge. Also,
Riker’s statements are not protected under the First Amendment because the state’s interest in
the administration of justice outweighs Riker’s interest in free speech, and alternatively, Riker’s
statements against Judge Picard imply a false assertion of fact, containing no objectively
verifiable matters. Second, Riker violated the “no contact rule” in Rule 4.2 by causing his client
to communicate with represented persons in the employment discrimination lawsuit, failing to
provide the necessary safeguards, attempting to use the impermissibly obtained information to
gain an unfair advantage in the adversarial process.
17
Therefore, this Court should reverse the Illiana Review Board’s decision and hold that
Riker violated both Rule 8.2 and Rule 4.2.
I.
WILLIAM T. RIKER’S CRITICISMS OF JUDGE JEAN-LUC PICARD
VIOLATED ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2 BECAUSE
RIKER KNOWINGLY MADE STATEMENTS WITH A RECKLESS
DISREGARD TO THE TRUTH, AND HIS STATEMENTS ARE NOT
PROTECTED UNDER THE FIRST AMENDMENT.
William Riker’s email to his client, Monica Shirley, contained false statements that
impugned a judicial officer in violation of Illiana’s Rule of Professional Conduct 8.2, which
prohibits Riker from making statements he “knows to be false or with reckless disregard as to
[their] truth or falsity concerning the qualifications or integrity of a judge.” Hearing Panel Order
at 5. As an officer of the court, Riker had a duty to uphold the integrity of the judicial process,
but instead Riker falsely criticized Judge Jean-Luc Picard and improperly asserted that Illiana
courts interpret the law in favor of employers in employment law cases, thereby impugning the
integrity of not only a judicial officer, but also the judicial system as a whole. See Hearing Panel
Order at 7; Exhibit A. In an email to his client, Shirley, Riker impermissibly accused Judge
Picard of impartially weighing evidence in employment law cases, improperly relying on
political motivations, and exhibiting bias against plaintiffs. See Hearing Panel Order at 7; Exhibit
A. Specifically, Riker asserted that in regard to employment law cases, “Judge Picard is the
worst with these cases,” and “is very conservative.” Exhibit A. Furthermore, Riker stated that:
“When examining evidence [Judge Picard] views it in a light that is more favorable to
employers. Not to mention that he is an old codger who hates greedy plaintiffs.” Exhibit A. As
the Hearing Panel aptly held, “As an officer of the court, Riker had a duty to uphold its
reputation and not imply that its judicial officers are prejudiced against those who come before it
seeking relief.” Hearing Panel Order at 7. A judge’s role is to be an impartial arbiter of justice.
18
Riker’s unsavory comments about Judge Picard are not merely inappropriate, but rather his
statements are false and unsubstantiated and have an adverse effect on the administration of
justice. See In re Wilkins, 777 N.E.2d 714, 717 & n.3 (Ind. 2002) (finding that under Rule 8.2, an
attorney has a duty to refrain from making unsubstantiated statements that undermine the
public’s confidence in the administration of justice). False statements like Riker’s criticisms of
Judge Picard undermine the public’s faith in the judicial system and therefore are sanctionable
under Rule 8.2. Id.
Riker does not dispute that he authored the offending comments about Judge Picard in his
email to Shirley, so the only issue is whether Riker knowingly made false statements or made
statements with a reckless disregard to the truth in violation of Rule 8.2. Hearing Panel Order at
5. The issue of whether an attorney has met the scienter requirement in Rule 8.2 is one of first
impression. Hearing Panel Order at 5. However, other jurisdictions with similar versions of Rule
8.2 have used one of two standards for reviewing whether an attorney’s statements criticizing a
judge should be punished: (1) the subjective actual malice standard and (2) the objective
reasonable attorney standard. The Supreme Court has yet to apply the reasonable attorney
standard to attorney disciplinary actions. See In re Green, 11 P.3d 1078, 1085 (Colo. 2000);
Review Bd. Op. at 2-3. However, most courts reviewing attorney disciplinary actions have found
that the actual malice standard set forth in New York Times Co. v. Sullivan only applies to
defamation cases and therefore have applied the reasonable attorney under similar circumstances
test. See Standing Comm. on Discipline of the United States Dist. Ct. v. Yagman, 55 F.3d 1430,
1437 (9th Cir. 1995).
Under the reasonable attorney standard, a reasonable attorney in Riker’s circumstances
would not have falsely criticized Judge Picard in an email to his client; therefore, Riker violated
19
Rule 8.2 under the applicable standard. Furthermore, if this Court applies the actual malice
standard, Riker’s statements would still run afoul of Rule 8.2 because he knowingly made the
critical statements with a reckless disregard for the truth.
Additionally, the First Amendment does not shield Riker from sanctions for his critical
statements against Judge Picard. Under the applicable balancing test, Illiana’s interest in the
administration of justice far outweighs any free speech interest that Riker would assert because
his statements were unfounded and made in an improper venue. See In re Wilkins, 777 N.E.2d
714, 718 (Ind. 2002). Also, “[t]he First Amendment does not protect any individual who
knowingly makes false statements or expresses opinions that imply false statements of fact.”
Office of Disciplinary Counsel v. Gardner, N.E.2d 425, 429 (2003). Riker’s assertions that Judge
Picard impartially weighs evidence in favor of employers, improperly relies on political
motivations, and exhibits bias against plaintiffs are not supported by evidence and should be
afforded no First Amendment protection because they necessarily imply a false assertion of fact
and are not objectively verifiable. See Berry v. Schmitt, 688 F.3d 290, 303 (6th Cir. 2012);
Exhibit A.
Therefore, this Court should reverse the decision of the Illiana Review Board and find
that Riker’s false statements regarding Judge Picard’s actions on the bench and reputation violate
Rule 8.2 under both the reasonable attorney standard and the actual malice standard, and are not
protected by the First Amendment.
A.
Riker’s criticisms of Judge Picard violate Rule 8.2 under the applicable
reasonable attorney standard from Yagman.
The objective reasonable attorney standard is the correct standard to determine whether
Riker knowingly made false statements that impugn a judicial officer in violation of Rule 8.2.
See Standing Comm. on Discipline of the United States Dist. Ct. v. Yagman, 55 F.3d 1430, 1437
20
(9th Cir. 1995). Under the objective reasonable attorney standard, the court must determine
“what the reasonable attorney, considered in light of all his professional functions, would do in
the same or similar circumstances,” by focusing on “whether the attorney had a reasonable
factual basis for making the statements, considering their nature and the context in which they
were made.” Id. (quoting United States Dist. Ct. v. Sandlin, 12 F.3d 861, 867 (9th Cir. 1993)).
Most state courts have generally adopted the reasonable attorney approach when adjudicating
similar ethics violations in attorney disciplinary actions. See Yagman, 55 F.3d at 1437, n.12
(citing In re Disciplinary Action Against Graham, 453 N.W.2d 313, 321-22 (Minn. 1990);
Matter of Holtzman, 577 N.E.2d 30, 34 (N.Y. 1991)). Many courts have applied the reasonable
attorney standard rather than the actual malice standard when disciplining an attorney for
criticizing a judge because “[t]here are significant differences between the interests served by
defamation law and those served by rules of professional ethics.” Office of Disciplinary Counsel
v. Gardner, 793 N.E.2d 425, 432 (Ohio 2003) (quoting Yagman, 55 F.3d at 1437). While
defamation actions seek to remedy a private wrong caused to reputation and standing in the
community, ethical rules proscribing false statements that impugn the integrity of judges 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.
Therefore, the objective reasonable attorney standard is the more appropriate standard for
the instant case because it “strikes a reasonable balance between the right of free speech and the
State’s legitimate interest in preserving the integrity of its judicial system.” Idaho State Bar v.
Topp, 925 P.2d 1113, 1116 (Idaho 1996). Here, Riker’s interest is accommodated because the
Disciplinary Commission must “prove the statement was false and that the [Riker] lacked a
21
reasonable basis for the statement,” and the Disciplinary Commission’s interest is accommodated
“by the fact that it need not prove subjective malice.” Id.
Applying the reasonable attorney standard, the Minnesota Supreme Court found that the
attorney’s statements alleging a judicial conspiracy to fix a federal case lacked a basis in fact and
were made with a reckless disregard to the truth in violation of Minnesota’s identical Rule 8.2. In
re Disciplinary Action Against Graham, 453 N.W.2d 313, 315, 322 (Minn. 1990). The court held
that the attorney’s statements impugning the integrity of the judges were presented as fact but
were merely based upon his own suspicions rather than actual facts. See Id. at 322-24. Thus, in
finding that the attorney violated Rule 8.2, the court noted that “[i]mpugning the integrity of
judges and public legal officers by stating as certainties that which was based on nonexistent
evidence or mere supposition is conduct that reflects a reckless disregard for the truth or falsity
of the statements made, in violation of Rule 8.2(a).” Id. at 324.
Similar to the attorney in In re Graham, Riker made impugning statements that suggested
that Judge Picard weighs evidence impartially, bases his judicial decisions upon political
ideology, and exhibits prejudice toward plaintiffs based on nonexistent evidence. Id.; See Exhibit
A. Riker’s criticisms of Judge Picard were not based upon a reasonable factual basis, but rather
on mere conjecture. Hearing Panel Order at 2; Exhibit A. Riker conducted “preliminary
research” using one legal research site, WesLex, and discovered that Judge Picard was 62 years
old and that he adjudicated employment law cases in the district and found in favor of employers
75% of the time. Hearing Panel Order at 2; Exhibit A. Based upon this insignificant finding and
Riker’s own beliefs about Judge Picard, Riker erroneously concluded that Judge Picard
improperly adjudicates employment law cases without presenting any evidence that Judge Picard
actually engaged in any impropriety. This is not sufficient to survive the reasonable attorney
22
standard because statements presented as fact that are based upon mere supposition, even when
genuinely believed, cannot negate a finding of reckless disregard for truth or falsity. See In re
Graham, 453 N.W.2d at 322-24. Therefore, Riker’s statements, like Graham’s, were knowingly
made with a reckless disregard for the truth and a reasonable attorney would not have made such
impugning statements that compromise the judicial process. Id.
The Hearing Panel correctly held, “We find that in light of Riker’s professional duties, a
reasonable attorney in his shoes would not have made such a critical statement about a judicial
officer.” Hearing Panel Order at 7. Therefore, this Court should find that Riker violated Rule 8.2
by falsely criticizing Judge Picard under the reasonable attorney standard.
B.
Alternatively, if this Court applies the actual malice standard from New York
Times, Riker’s criticisms of Judge Picard would still violate Rule 8.2.
If this Court were to adopt the subjective actual malice standard from New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), despite many courts declining to do so because the interests
served by defamation and attorney disciplinary actions are distinguishable, Riker’s statements
would still violate Rule 8.2. See Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 431
(Ohio 2003) (agreeing with the majority of courts who applied the objective reasonable attorney
standard). It is important to note that the Supreme Court has not applied either the reasonable
attorney standard or the actual malice standard to attorney disciplinary cases nor has it addressed
the First Amendment implications of disciplining attorneys for criticizing a judge. See In re
Green, 11 P.3d 1078, 1083-85 (Colo. 2000); Review Bd. Op. at 2-3.
Under the New York Times standard, the Colorado Supreme Court found that a two-part
inquiry applies when determining whether an attorney may be sanctioned for criticizing a judge:
(1) whether the disciplinary authority has proven that the statement was a false
statement of fact (or a statement of opinion that necessarily implies an
23
undisclosed false assertion of fact); and (2) assuming the statement is false,
whether the attorney uttered the statement with actual malice-that is, with
knowledge that it was false or with reckless disregard as to its truth.
In re Green, 11 P.3d at 1085.
Although the actual malice standard is imprecise, and it mirrors the language of Illiana’s
Rule 8.2, the New York Times Court held that as a term of art, “actual malice” as it applies in
defamation cases means making a statement “with knowledge that it was false or with reckless
disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280
(1964); In re Green, 11 P.3d at 1083. Therefore, under the reckless-disregard-for-the-truth
standard, the defendant must have either made the false statements with a “high degree of
awareness of their probable falsity” or “entertained serious doubts as to the truth of his
publication.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (internal
quotation marks omitted); Garrison v. La., 379 U.S. 64, 74 (1964).
In State ex rel. Oklahoma Bar Ass’n v. Porter, the Oklahoma Supreme Court found that
an attorney’s statements accusing a U.S. District Court judge of being racist after the attorney
tried a case in front of the judge were protected under the First Amendment. 766 P.2d 958, 96062 (Okla. 1988). The court reasoned that sanctioning this attorney’s speech would seriously
impair not only the right to free speech but also the public’s right to hear criticism of the judicial
branch. Id.
Unlike the protected speech in Porter, Riker’s criticism of Judge Picard was not based
upon disclosed facts and is not the kind of statement that the public has a right to hear because it
relies on false information concerning the qualifications of a judge. Id. The Oklahoma Supreme
Court stated that criticism by an attorney that amounts to an attack on the motivation, integrity or
competence of a judge who is charged with administering justice may be properly censurable. Id.
24
at 965. The court also noted that false speech is not protected under the First Amendment. Id. at
969. Riker’s criticisms impugn Judge Picard’s motivation, integrity and competence in
adjudicating employment cases without any basis in truth and therefore are sanctionable even
under the actual malice standard. Therefore, because Riker provided no evidence that Judge
Picard ever impartially weighed evidence in employment cases, allowed his political ideologies
to motivate his decisions on the bench, or acted prejudicially toward plaintiffs, his statements are
false and show actual malice.
Therefore, even if this Court applies the actual malice standard, Riker’s criticisms of
Judge Picard would still violate Rule 8.2.
C.
Riker’s statements are not protected under the First Amendment and thus
his criticisms of Judge Picard are sanctionable as they run afoul of Rule 8.2.
The First Amendment states in relevant part: “Congress shall make no law . . . abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.” U.S. Const. amend. I. The issue arising
from “the restraint on free speech inherent in disciplining a lawyer for comments criticizing a
judge” is one of first impression, as the Supreme Court has not addressed the First Amendment
implications of disciplining attorneys for criticizing the judiciary. In re Green, 11 P.3d 1078,
1083 (Colo. 2000). Courts have dealt with this issue either by: (1) weighing the competing
interests of the State in regard to proper administration of justice against the attorney’s interest in
free speech; or (2) determining if the statements are mostly fact or mostly opinion and whether
the statements imply a false assertion of fact. See generally Berry v. Schmitt, 688 F.3d 290 (6th
Cir. 2012); In re Wilkins, 777 N.E.2d 714 (Ind. 2002).
25
The First Amendment does not protect statements that imply a false assertion of fact
based upon undisclosed facts. See Standing Comm. on Discipline of U.S. Dist. Ct. v. Yagman, 55
F.3d 1430, 1438 (9th Cir. 1995). While truth is an absolute defense to criminal and civil
sanctions based on speech about public officials, Riker’s statements are far from true and should
not enjoy such immunity. See Garrison v. La., 379 U.S. 64, 74-75 (1964). Here, both Riker’s
statements about Judge Picard’s activities on the bench and his reputation are unprotected
because they adversely affect the administration of justice and are opinions that imply a false
assertion of fact and cannot be objectively verified.
Therefore, this Court should find that Riker’s criticisms of Judge Picard are not protected
under the First Amendment, and thus are sanctionable under Rule 8.2.
1.
Under the applicable “balance of the competing interests” test, the
State’s interest in the administration of justice outweighs Riker’s
interest in free speech.
When analyzing an attorney disciplinary action based on speech criticizing a judge, some
jurisdictions have found that no standard test applies to determine whether the First Amendment
protects the speech, and thus have applied a balancing test, weighing the State’s interest in the
overall administration of justice with the attorney’s interest in free speech. In re Wilkins, 777
N.E.2d 714, 717-18 (Ind. 2002); Hearing Panel Order at 8.
In In Re Wilkins, the Supreme Court of Indiana found that an attorney’s unsubstantiated
claims of judicial misconduct were sanctionable under Rule 8.2. Id. at 716-17. Specifically, the
Wilkins court found that the attorney made false statements about judicial officers in an appellate
brief, asserting that “the judges on the Court of Appeals may have been motivated in their
decision making by something other than the proper administration of justice, and, in fact,
suggested unethical motivations.” Id. at 717. The court held that the First Amendment did not
26
protect these colorable statements, which were made with reckless disregard to the truth and
impugned the judiciary in violation of Rule 8.2. Id.
Similar to the attorney in Wilkins, Riker falsely accused Judge Picard of allowing
unethical motivations to influence his actions on the bench when he asserted that Judge Picard
allowed his political ideologies to influence his decision making abilities and exhibited bias
when adjudicating employment actions. Id.; Exhibit A. Riker’s free speech interests are
outweighed by Illiana’s interest in preserving the integrity of the judiciary. As the Supreme
Court of Indiana aptly noted, “[w]ithout evidence, such statements should not be made
anywhere. With evidence, they should be made to the Judicial Qualifications Commission.” In re
Wilkins, 777 N.E.2d at 717. Therefore, if Riker was truly concerned about Judge Picard’s
qualifications and integrity, then he would have brought these issues to the proper ethics
commission in Illiana instead of emailing his client impugning statements about Judge Picard’s
fabricated impropriety. Like In Re Wilkins, in the present 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.
Furthermore, on balance, Riker cannot seriously contend that his statements do not
adversely affect the administration of justice merely because they were made in a private email,
and thus should be protected under the First Amendment. The Supreme Court has stated that:
It is unquestionable that in the courtroom itself, during a judicial proceeding,
whatever right to “free speech” an attorney has is extremely circumscribed. ***
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.
27
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991).
Furthermore, “A lawyer does not acquire any license to do these things by not being
presently engaged in a case. They are equally serious whether he currently is engaged in
litigation before the judge or not.” State ex rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958, 965
(Okla. 1988). While it is true that attorneys are free to comment on perceived judicial
misconduct, when appropriate, in order to uphold the integrity of the judiciary, the same is not
true of false statements that wrongfully accuse judicial officers of misconduct and undermine the
public’s faith in the judicial system. See In re Green, 11 P.3d 1078, 1086-87 (Colo. 2000). In In
Re Green, the Colorado Supreme Court found that the State’s interest in the administration of
justice was less compelling because the attorney’s critical statements were made to a limited
audience rather than to the public. Id.
However, unlike the statements made in In re Green, Riker’s statements were written in
an email to his client who distributed the comments to her co-workers by way of the altered
email. See In re Green, 11 P.3 at 1086-87; Hearing Panel Order at 3. The adverse effect on the
administration of justice was not of a de minimis nature like in Green because Riker’s impugning
statements became public when Shirley sent them to her co-workers, who were represented
persons in the discrimination lawsuit, and when Riker attempted to use the signed statements at
the deposition of Shirley’s co-worker. Id.; Hearing Panel Order at 4. The statements are arguably
more public than private because they were presented to multiple parties during a pending case,
which necessarily adversely affects the administration of justice. Thus, Riker’s unfounded
criticisms seriously undermine the judicial process and the integrity of the court because Judge
Picard is a prominent figure presiding over employment law cases in this district, and these
statements were circulated to both sides of a pending employment discrimination lawsuit.
28
Therefore, this Court should reverse the Illiana Review Board’s decision and find that
Riker’s criticisms of Judge Picard are not protected under the First Amendment, and thus are
sanctionable under Rule 8.2.
2.
Alternatively, Riker’s statements are opinions implying a false
assertion of fact and contain no objectively verifiable matters.
If this Court applies the test set forth in Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012),
Riker’s criticisms of Judge Picard would still not be afforded First Amendment protection
because they are opinions that imply a false assertion of fact and contain no objectively
verifiable matters. Under the Berry test, the court determines (1) whether the attorney’s
statements are mostly fact or mostly opinion; (2) whether the statements contain “objectively
verifiable matters.” Id. at 303-04.
“[S]tatements impugning the integrity of a judge may not be punished unless they are
capable of being proved true or false; statements of opinion are protected by the First
Amendment unless they imply a false assertion of fact.” Standing Comm. on Discipline of U.S.
Dist. Ct. v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995); (citing Milkovich v. Lorain Journal Co.,
497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990) (internal quotation marks omitted)).
When determining whether a statement is fact or opinion, some courts employ an objective
“totality of the circumstances” test that considers factors such as “the specificity, verifiability,
general context, and social context of the words used.” See, e.g. Office of Disciplinary Counsel v.
Gardner, 2003-Ohio-4048, 793 N.E.2d 425, 430 (2003).
Additionally, “if a statement of opinion implies an undisclosed false statement of fact,
then the statement loses the protection of the First Amendment.” In re Green, 11 P.3d 1078,
1084 (Colo. 2000). The Supreme Court has held that:
29
Even if the speaker states the facts upon which he bases his opinion, if those facts
are either incorrect or incomplete, or if his assessment of them is erroneous, the
statement may still imply a false assertion of fact. Simply couching such
statements in terms of opinion does not dispel these implications; and the
statement, “In my opinion Jones is a liar,” can cause as much damage to
reputation as the statement, “Jones is a liar.”
Milkovich, 497 U.S. at 18-19.
In Idaho State Bar v. Topp, the Idaho Supreme Court found an attorney’s criticisms of a
judge violated Idaho’s comparable Rule 8.2 where he falsely asserted that the judge presiding
over his case entered judgment based upon political motivations. Idaho State Bar v. Topp, 925
P.2d 1113, 1114-15 (Idaho 1996). Similarly, Riker’s statements regarding Judge Picard’s alleged
reliance on political motivation are opinions based upon undisclosed facts that imply a false
assertion of fact and thus are not protected under the First Amendment. Id. Riker also did not
disclose all the necessary facts to his client Shirley in order for her objectively verify the veracity
of his statements. Milkovich, 497 U.S. at 18-19. Riker’s actions are therefore sanctionable
because his statements were incorrect and imply judicial impropriety without supporting
evidence.
First, Riker only conducted “preliminary research” using one legal research site, WesLex,
and discovered that Judge Picard was 62 years old and that he adjudicated employment law cases
in the district and found in favor of employers 75% of the time. Hearing Panel Order at 2;
Exhibit A. Riker went beyond the attorney in Idaho State Bar and represented opinions that
implied false assertions about Judge Picard’s actions on the bench and reputation in the legal
community as fact to his client who relied on him to provide truthful information regarding any
legal issues that involved her employment case. See Berry v. Schmitt, 688 F.3d 290, 303-04 (6th
Cir. 2012) (finding that both opinions based upon undisclosed facts that imply a false assertion of
30
fact are sanctionable as well as statements that are based upon fully disclosed facts that are false
and demeaning).
Second, Riker did not give Shirley enough information to objectively verify the truth of
criticisms against Judge Picard because the statements were based on undisclosed facts. Thus,
Shirley reasonably could have interpreted Riker’s statements against Judge Picard as being based
on his expertise as a lawyer and therefore the statements would appear factual. “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.” Gentile v. State Bar of Nevada,
501 U.S. 1030, 1074 (1991). Thus, Shirley reasonably could have interpreted Riker’s statements
about Judge Picard to be factual even though they were not factually based, which contravenes
the purpose of Rule 8.2. – to uphold the integrity of the judicial process.
Therefore, this Court should find that Riker’s criticisms of Judge Picard impugn a judicial
officer in violation of Rule 8.2 and imply a false assertion of fact and therefore are not afforded
First Amendment protection.
II.
WILLIAM T. RIKER VIOLATED ILLIANA’S RULE OF PROFESSIONAL
CONDUCT 4.2 WHEN HE CAUSED ANOTHER, HIS CLIENT, MONICA
SHIRLEY, TO COMMUNICATE WITH REPRESENTED PERSONS IN THE
EMPLOYMENT DISCRIMINATION LAWSUIT.
William Riker violated Rule 4.2 when he: (1) caused his client to communicate with
individuals represented by opposing counsel; and (2) failed to follow the appropriate safeguards
set forth by Illiana’s Rules of Professional Conduct for communicating with individuals
represented by counsel. Rule 4.2 states that a lawyer shall not cause another to communicate on
the subject of representation with a party that the lawyer knows to be represented by another
31
lawyer unless the lawyer receives consent from the opposing lawyer or is authorized by law to do
so. Hearing Panel Order at 9. In the present case, Riker knew that Wall Street Bank’s counsel
represented Monica Shirley’s co-workers. Hearing Panel Order at 2. Additionally, he did not
receive consent from Wall Street Bank’s counsel to communicate with Shirley’s co-workers.
Exhibit E. Thus, this Court must analyze whether Riker’s actions are sanctionable under Rule 4.2
by determining: (1) whether Shirley constitutes “another” for the purposes of Rule 4.2; and (2)
whether Riker impermissibly caused Shirley to communicate with her co-workers, who were
represented by opposing counsel.
A.
Riker’s client, Shirley, constitutes “another” for the purposes of Rule 4.2.
Riker’s client, Shirley, is “another” for the purposes of Rule 4.2. Whether a client can be
considered another for the purposes of Rule 4.2 is a matter of first impression in Illiana. In
determining this matter, this Court should look to ABA Formal Ethic Opinions and persuasive
cases from other jurisdictions.
Under Comment 3 of Rule 4.2, parties may directly communicate with each other and a
lawyer is not prohibited from advising a client concerning a communication that the client is
legally entitled to makes. Hearing Panel Order at 9. However, the American Bar Association
states that in advising the client, the attorney must not violate the underlying purpose of Rule 4.2.
ABA Formal Ethics Op. 11-461 (2011). According to Comment 1 of Rule 4.2, the underlying
purposes of this rule are to: (1) prevent overreaching; (2) safeguard the lawyer-client relationship
from interference; (3) reduce the likelihood that clients will disclose privileged information; and
(4) safeguard clients from making improvident settlements. Hearing Panel Order at 9. The
American Bar Association considers prime examples of overreaching to include “assisting the
client in securing from a represented person an enforceable obligation, disclosure of confidential
32
information, or admissions against interest without the opportunity to seek the advice of
counsel.” ABA Formal Ethics Op. 11-461 (2011). Therefore, if a lawyer assists a client in
securing an enforceable obligation from a represented person, the lawyer would be overreaching
and in violation of the underlying purpose of Rule 4.2. This line of reasoning makes it clear that
the American Bar Association believes a client can be considered another for the purpose of
finding a Rule 4.2 violation if the lawyer is found to be violating one of the underlying purposes
of the rule. In this case, Riker sent an email to Shirley that assisted her in securing an enforceable
obligation in the form of an interrogatory that he later attempted to use in a deposition. Even if it
was not Riker’s intent to secure an enforceable obligation, as it was Shirley who added the
signature line, Riker still elicited confidential information and admissions against the other
party’s interest without the opportunity to seek the advice of counsel. Therefore, Riker
overreached in violation of the underlying purpose of Rule 4.2 with regards to advising his
client.
Persuasive cases from other jurisdiction have also determined that a client is another for
the purposes of Rule 4.2. For example, in In re Anonymous, the Indiana Supreme Court held that
an attorney violated Rule 4.2 when he attempted to use his client to obtain a signature of a
represented party on an affidavit. 819 N.E.2d 376, 379 (Ind. 2004). In In re Marietta, the Kansas
Supreme Court held that an attorney violated Rule 4.2 by preparing a release of liability of back
child support that he gave his client to get signed by the adverse party. 569 P.2d 921, 921 (Kan.
1977). In In re Pyle, the Kansas Supreme Court held that an attorney violated Rule 4.2 when he
gave his client affidavits to get signed by the adverse party. 91 P.3d 1222 (Kan. 2004). In all of
these cases, the court held that a client was another for purposes of Rule 4.2 if the attorney is
found to be in violation of the underlying principles of the rule. In the present case, if Riker is
33
found to have violated the underlying principle of Rule 4.2 through the use of his client, he
should similarly be found in violation of Rule 4.2. Also despite differences in their final holdings
on whether Riker violated Rule 4.2, both the Hearing Panel and the Review Board agreed that a
client should be considered another for the purpose of the rule.
Both the American Bar Association and persuasive case law from other jurisdictions
support the idea that a client should be considered another for purposes of Rule 4.2. It is true that
allowing some communication between adverse parties is necessary to encourage the parties to
come to settlements and that some attorney assistance may be needed in these situations.
However, once the attorney overreaches in his assistance and uses the client to violate the
underlying purpose of Rule 4.2, the attorney must be held accountable. In this case, Riker
overreached by causing his client to communicate with represented parties in order obtain
confidential information, which he could not have obtained directly.
Therefore, this Court should find that Riker’s client, Shirley, constitutes “another” for the
purposes of Rule 4.2.
B.
Riker prompted Shirley to meet with her co-workers, who were represented
persons, for the purpose of obtaining beneficial information relevant to
Shirley’s employment discrimination case.
Riker violated rule 4.2 of Illiana’s Rules of Professional Conduct when he prompted his
client, Ms. Shirley, to communicate and obtain information from her co-workers, who were
represented by opposing counsel, to benefit their own case. When an attorney takes advantage of
a client’s inherent interest in their own case, that attorney causes the client to communicate with
another if the client, based on the attorney’s implications and/or advice, believes that doing so
would be beneficial in their own case. In re Pyle, 91 P.3d 1222, 1229 (Kan. 2004). Additionally,
the American Bar Association has stated that one way an attorney can overreach and violate Rule
34
4.2 includes “assisting the client in securing from the represented person an enforceable
obligation, disclosure of confidential information, or admissions against interest without the
opportunity to seek the advice of counsel,” while other jurisdictions like California have found
that scripting a client’s communication or “otherwise using the client as a conduit for conveying
to the represented opposing party words or thoughts originating from the attorney” are
impermissible. Hearing Panel Order at 11-12 (quoting ABA Formal Ethics Op. 11-461 (2011) &
California Comm. on Prof’l Resp. and Conduct Formal Op. 1993-131 (1993)).
In In re Pyle, the attorney in question created an affidavit that he wanted his client to get
another represented party to sign. 91 P.3d at 1227. In doing so, the attorney told his client that
the affidavit would “help with your claim” as long as it is signed by the other represented party.
Id. The attorney made clear that he himself could not communicate with, nor have the affidavit
signed by, the other represented party, but he told the client that she could talk to whomever she
wanted to. Id. Although the attorney claimed that he had drafted the affidavit merely at the
client’s order, the Supreme Court of Kansas in Pyle held that preparing the document with the
knowledge of its intended use and then causing the client to deliver it to be signed was in
violation of the concept that an attorney is prohibited from using another to do something that the
attorney cannot do himself. Id. at 1229 (citing In re Marietta, 569 P.2d 921 (Kan. 1977)).
Here, Riker was in a position of authority as a legal professional and a skilled attorney.
As such, and due to his relationship with Shirley as a family friend, Shirley was intent on
following her attorney’s directions. Hearing Panel Order at 1. Shirley had no way of knowing
that her actions would cause a violation in ethics for Riker because she was never fully counseled
as to the ramifications of such actions. Ultimately, it was Riker’s responsibility to ensure that
there was no doubt as to the possible consequences of her actions.
35
The current case and Pyle both have at issue nearly identical rules of professional
conduct, prohibiting attorneys from communicating with other represented parties without the
other lawyer’s consent or authorization by law. In Pyle, the attorney did make clear to his client
that he was not allowed to communicate with other represented parties. 91 P.3d at 1227.
However, the attorney then ceased to follow the professional rules when he used his client to
communicate with the represented party, ultimately encouraging her to do something that he
could not, circumventing the rule against such communication. Id. at 1229.
Distinguishable from Pyle are the means by which Riker influenced and caused Shirley,
his client, to communicate with represented parties, her co-workers. In Pyle, the attorney directly
said to his client “please talk with [the represented party] and see if he will sign the enclosed
affidavit.” Id. at 1227. This statement was a clear indication of the attorney’s intentions, to have
his client do something that he could not, i.e., have a represented party sign an affidavit without
consulting their lawyer. In the current case, Riker was not as direct with his indications, but still,
there is no doubt as to what they indeed were, and what he wanted Shirley to do. Shirley’s
representation by Riker began with a meeting on December 15, 2012, regarding her gender
discrimination case. Hearing Panel Order at 1. That same day, Shirley and Riker had a
conversation through text messages. Hearing Panel Order at 2. Three important sources of
foundation are present in this conversation. First, as expected, Shirley expressed her great desire
to want to help Riker with the case. Hearing Panel Order at 2. Second, Riker explained that he is
unable to talk to Shirley’s boss and co-workers. Hearing Panel Order at 2. Finally, Riker tells
Shirley, “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.” Hearing Panel Order at 2. This final exchange indicates two things: (1)
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that Riker intended on having Shirley included in some of the work of her case; and (2) that at
this point in the representation, Shirley was waiting to hear back from Riker in order to
determine how to prove her case and the next steps necessary to do so. Hearing Panel Order at 2.
After doing “some homework” as promised, Riker discovered that he would need to
prove a systematic pattern of discrimination at Shirley’s place of employment in order to win the
case. Hearing Panel Order at 2. As seen in Exhibit A of the record, Riker informed Shirley of the
exact information needed to prove her case. This is directly comparable to the attorney’s actions
in Pyle where the attorney told his client that the affidavit that he wanted the other party to sign
would help with the client’s claim. In re Pyle, 91 P.3d 1222, 1227 (Kan. 2004). In both cases,
there is a client, looking for anything and everything to help win their case, and their skilled
attorneys, telling them exactly what they need to help win their case. The motivation to get
exactly what their attorneys want is insurmountable. As a result, the clients will not only do their
best, but they will do whatever it takes to get the information that their attorneys just told them
they absolutely need.
In Riker’s case, he gave Shirley a specific list of eight things that they needed to prove
their case. See Exhibit A. At this point, as mentioned, Shirley had been waiting for instruction
from Riker as to how to proceed. Hearing Panel Order at 2. So, when Riker sent her an email that
not only explained what was needed to win the case, but also that Shirley would be helping to get
what was needed, Shirley knew what her job was. Throughout the email to Shirley, Riker uses
phrases connoting that they were a team working to get the work done. Hearing Panel Order at 2.
“We need,” “We will,” and “Let’s get to work” all indicate Riker’s expectation that Shirley
would be a part of gathering the necessary information. Exhibit A. Not only would she help, she
would play a crucial role, and she knew that. She knew because Riker had already made it clear
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that he would be unable to talk to or ask anything of her co-workers. Therefore, if Riker cannot
talk to Shirley’s co-workers to obtain the necessary information to win their case, but the two of
them need to “get to work,” who would talk to the co-workers? The answer is the only person
that seemingly could, would, Shirley.
There are instances where it would not be a violation for an attorney to advise a client to
communicate with the opposing represented party. One common such instance would be to
promulgate a discussion on terms of settlement or other means of resolution. ABA Formal Ethics
Op. 11-461 (2011). However, that instance is limited to the discussion of possible resolutions to
the case at hand. ABA Formal Ethics Op. 11-461 (2011). If instead, a client was found to
actually be either “directly or indirectly acting as [an] agent of [their] lawyer” then that
communication would run afoul of the guidelines of “contacts with represented persons.” ABA
Formal Ethics Op. 11-461 (2011). This sort of exception is a clear effort in public policy to
encourage the settlement of cases between parties.
Nonetheless, in the case of Riker and Shirley, the contact with their opposing represented
party would not fall under the “settlement exception” discussed. Riker’s instigation of Shirley to
communicate with her co-workers was meant for one purpose, to get the “juicy” information that
Riker determined he needed for their case. Exhibit A, C. Additionally, Shirley’s communication
with her co-workers on behalf of Riker simply could not have been to discuss a possible
settlement. Although her co-workers are represented by Wall Street Bank’s counsel, the workers
themselves have no standing to provide negotiations with Shirley on behalf of the company. She
did not talk with her boss Jim Duggan or any other high administrator of the bank. No possible
settlement discussion could have resulted from her communications with her co-workers.
Additionally, the present case is somewhat distinguishable by the fact that the represented parties
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who were unethically communicated with are not necessarily parties who are involved with the
discrimination proceeding itself. However, as discussed by the court in Holdren v. General
Motors Corp., the American Bar Association (ABA) in August of 1995 amended Rule 4.2 to
prohibit communications by an attorney with a “person” rather than a “party” represented by
counsel. Holdren v. General Motors Corp., 13 F. Supp. 2d 1192, 1194 (D. Kan. 1998). This
amendment protects any represented individual who has an interest in the matter at issue and is
represented accordingly, opposed to just the formal “party” involved in the lawsuit. Id.
Just as in Pyle, when the attorney caused his client to communicate with a represented
party, in the present case, Riker caused his client to communicate with represented persons as
well. Unlike in Pyle though, Riker did not directly tell Shirley, “please talk with” your coworkers. 91 P.3d at 1227. He did not have to. It was clear by how Riker had interacted with
Shirley so far and by the way that he had expressed the need for specific information, that he
expected Shirley to try and obtain that information. Shirley knew what was at stake. According
to Riker, if she did not obtain the information they would lose their case. Ultimately, he might as
well have directly told her to talk to her represented co-workers, as it would have had the same
effect. When analyzed under the American Bar Association’s Standing Committee on Ethics and
Professional Responsibility, it is clear that within two days of being retained by Shirley, Riker
was already “masterminding” his client’s interactions with represented parties. ABA Formal
Ethics Op. 11-461 (2011).
The Illiana Review Board is misguided several times over in believing that “Shirley
conceived of the communications in question;” that “logically, Riker could not have “caused”
Shirley to communicate;” and that Riker’s instructions were simply an “update” of the case, that
Shirely then on her own accord used to conduct the unethical communications. Review Bd. Op.
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at 7. Riker’s correspondence was not simply an update, it was instructions. Very detailed,
numerically organized instructions. If not for Riker’s guidance, Shirley would never have known
what information to go probe her co-workers for, nor would she have ever even initiated the
communications. Review Bd. Op. at 7. The Review Board, when making its decision, clearly
was looking for a direct statement by Riker telling Shirley to communicate with her represented
co-workers. But that is not the issue at hand. The issue is whether or not Riker caused Shirley to
communicate with her co-workers, not whether he told her to do so. Whether directly, or
indirectly, if Shirley was caused in anyway to communicate with her co-workers because of
Riker, Rule 4.2 is violated. It was due to Riker’s “masterminding” that Shirley so eagerly
decided to communicate with her co-workers, the very next day, after being informed by Riker
what she needed to do if she wanted to win her case. Hearing Panel Order at 3.
Ultimately, Riker used his client to act on his behalf to obtain privileged information that
was greatly against the opposing party’s interests in an attempt to gain an unfair advantage at
trial, which runs afoul of Rule 4.2. Riker used Shirley as a conduit to obtain information in a way
that he himself was prohibited from doing. See California Comm. on Prof’l Resp. and Conduct,
Formal Op. 1993-131 (1993). Additionally, it is clear by the facts that the co-workers themselves
perceived their communications with Shirley to actually be initiated by Riker. First, the emails
that Shirley sent to her co-workers contained Riker’s summary of the law relevant to their case.
Exhibit B, C. The first paragraph of the email alone demonstrates that Shirley did not initiate the
inquiry. Second, responses to the questions by two of Shirley’s co-workers included references
to Shirley in the third person, demonstrating a knowledge that the answers were not meant solely
for Shirley, but rather for the inquiry of her lawyer, Riker. Exhibit C, at 5, 8. Finally, as testified
to by Mr. Adams during the beginning of his deposition, Adams responded to the email due to
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Shirley saying that she needed to help her lawyer prove her case. Exhibit C, at 5-6. This
demonstrates that Riker was the “mastermind” of Shirley’s impermissible communication with
her co-workers, and thus Riker overreached and caused Shirley to communicate with represented
persons in violation of Illiana’s “no contact rule.”
Therefore, this Court should reverse the Illiana Review Board’s decision and find that
Riker violated Rule 4.2 by causing his client to communicate with represented persons in order
to obtain privileged information.
C.
Although Riker may not have known about Shirley’s creation of documents
for her co-workers to sign, he still became responsible for both those
documents and his client’s actions, and hence violated Rule 4.2 when he was
made fully aware of both the documents and her actions and subsequently,
ratified their existence with a conscious decision to cause detriment to the
opposing party.
Despite his claims, Riker violated rule 4.2 of Illiana’s Rules of Professional Conduct due
to his failure to sufficiently counsel Shirley as to permitted communications with the opposing
party; this resulted in the obtaining of signed documents which Riker then ratified through his
intention of using them at trial in detriment to the opposing party. As is common in many cases
dealing with unprofessional or ethical violations by an attorney, the attorney under review often
attempts to focus the attention of the case onto the actions of their client. However, there are
several ways that an attorney may be held responsible for the actions of their client if they did
not properly counsel that client as to permitted behavior and procedure under the law.
Ultimately, as discussed in the Illiana Review Board’s opinion, the attorney does indeed work for
the client, and therefore must generally give the client the service that they are paying for.
Review Bd. Op. at 6. However, the Board fails to acknowledge that very often an attorney, in
order to provide sufficient counsel, must also control their own clients based on the lawyer’s
better understanding of the law, and the knowledge that sometimes things that the client may not
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like or agree with are actually done with their best interests and proper representation in mind.
This remains true in Riker’s case.
In In re Anonymous, the attorney involved did actually make several attempts to resolve
the issue of communicating with a represented party with that party’s counsel. In re Anonymous,
819 N.E.2d 376, 378. (Ind. 2004). Ultimately however, the attorney in question obtained a signed
affidavit from the represented party, via the attorney in question’s client, without ensuring that
the represented party signing the affidavit consulted with counsel. Id. The Supreme Court of
Indiana in that case ruled that although the attorney did not specifically know that the
represented party had not consulted with counsel, the attorney had no reason to believe that the
two had discussed it. Id.
The attorney in Anonymous did make some attempts to ethically facilitate communication
with the represented party, but the attorney did not follow through with his attempts and
ultimately ignored his ethical obligations. Id. He did initially consult with the represented party’s
attorney; however, he failed to actually wait for the verification from the attorney that the
communication and the signing of the affidavit were permitted. Id. In Anonymous, the attorney
did make one final attempt to get permission from the counsel representing the party. Id. But this
attempt was simply made after the fact as an effort to protect the unethical means that he had
already taken to obtain a signature from the represented party. Id. The effort consisted of him
calling the opposing attorney, while already en route from where he obtained the signature, to the
federal courthouse where he intended on filing the signature. Id. He was unable to get ahold of
the attorney, so he claimed that he left a voice message. Id. Ultimately, the attorney never
received permission from the opposing attorney, yet he subsequently filed the signed affidavit.
Id. This sequence of events shows a clear illustration of the attorney’s priorities, i.e.,
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disregarding ethical regulations to benefit the attorney’s own case, and demonstrates the
attorney’s ratification of the signed document. The Supreme Court of Indiana reasoned that even
if it was his client and not himself who directly had obtained the signature, the fact that he then
clearly intended on using and filing that obtained signature constitutes ratification on his part of
both the document and the means to receive that document. Id.
Riker’s actions are directly comparable to the attorney’s actions in In re Anonymous. As
in Anonymous, Riker had no reason to believe that after he made what the Review Board so
misleadingly deemed a “good-faith attempt” [see Review Bd. Op. at 9.], to get Shirley to inform
her co-workers of the legal consequences of their statements, that she actually made any attempt
to do so. Hearing Panel Order at 3. His “good-faith attempt” consisted of one sole text message,
telling Shirley that she may want to be sure they understand the legal consequences of their
signed statements. First of all, saying that she may do so, implies absolutely no actual mandate
on doing so, nor any consequences for not doing so. Additionally, even if she did do so, she
would have no knowledge of what the actual legal consequences of those statements would be,
and therefore would be unable to even consult her co-workers. It was not her job to make sure
that the statements were obtained legally and ethically. That was the job of Riker, her counsel.
Riker was aware of the rules, and was aware of Shirley’s avid desire to be involved, describing
her as a “loose cannon.” Exhibit D. He was correct in saying that the rules (the Rules of
Professional Conduct), were a type of shield, but he did not follow his own advice and refused to
use the shield to its fullest. Instead he failed to control his client and violated the rules as a result.
Shirley may have been a “loose cannon” but Riker was the one who lit the cannon’s fuse.
Even if believed that Riker’s “good-faith attempt” was enough to shield him from ethical
responsibility, he never followed up with Shirley on the matter. Hearing Panel Order at 4. He
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finally, never got in contact with the opposing counsel, explaining the communication and
explaining that his client was a “loose cannon” who obtained four signed statements by
represented opposing parties. Exhibit D, E at 10. If he had done even anything to try and give the
opposing counsel notice of the events, or made any attempt to obtain opposing counsel’s consent
to the communications, an ethical violation of Rule 4.2 would likely not have happened. Being
busy with a three-day jury trial is simply not an excuse for ignoring ethical mandates in one’s
own other case. Hearing Panel Order at 3. Ultimately, just as in Anonymous, Riker had no reason
to know whether the represented co-workers were able to consult their counsel, or any indication
whether they even knew that they would likely want to. Both of these unknown details were
Riker’s responsibility to find out, not Shirley’s; his mere “suggestion in passing” given to Shirley
after the fact, through text message, is absolutely not a “good-faith attempt.”
Finally, also just as in Anonymous, Riker’s possession of the signed statements and his
subsequent actions following their obtainment demonstrate a clear ratification of both the
statements and the means by which they were gathered. Unlike in Anonymous, where at least an
attempt, be it more of a guise of an attempt, was made; in the present case, Riker made
absolutely no attempt to receive opposing counsel’s consent to the communication with their
clients. The first time opposing counsel was ever informed about the communications that
Shirley had obtained for Riker was when Riker so sneakily attempted to use them in a
deposition. Exhibit E, at 10. His clear intent on using those statement in a legal proceeding make
Riker responsible for how they were obtained and what they implicate. Even if he had absolutely
nothing to do with the drafting of the statements, the fact that he so clearly intended on then
using those statements is enough to be a violation under Rule 4.2. In Holdren, the attorney had
no part in the drafting of the affidavits and he was still held as unethically causing
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communication with a represented party, so for Riker to argue that he did not help with the
drafting of the statements, even though they were based verbatim off of his email to Shirley, is
largely irrelevant. Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998).
The Review Board held that the statements that Riker attempted to use at the deposition
would still not constitute an ethical violation under Rule 4.2 because they carry far less weight
than a more formal document like an affidavit. Review Bd. Op. at 8. This logic not only is
incorrect when applied to the case, but it is also irrelevant when considering a Rule 4.2 violation.
First of all, in this case, the documents in issue are signed statements from Shirley’s co-workers.
They were not official legal documents, but that is because Riker never used official legal
documents. The Review Board cannot fault the documents for not being official when the reason
they are not official is because of Riker. Secondly, even if the statements are not official, they
were being specifically used in a deposition as means to have a legal effect on Mr. Adams.
Exhibit E, at 10. Riker was using the statement in a deposition, in furtherance of a sworn
statement, which would then have further been used in a trial where it would have both been
used for the truth of its assertion, and for credibility purposes as to Mr. Adams. So, the Review
Board’s claim that the document was not a legal document and had less weight than a legal
document is misleading because the “non-legal” document was being used to serve a legal
purpose in a legal proceeding.
Second, even if it is determined that the sworn statements do carry less weight than an
“official” legal document, it does not matter. The most that Rule 4.2 deals with the content of a
“communication” with a represented party, is simply that it is on the same subject matter as the
case in which the parties are represented for. Focusing on the weight of the actual content is
simply a red herring by the Review Board, when the only focus needs to be on whether the
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communication actually happened. Rule 4.2 is not violated because of the content of the
unethical communications, it is violated because the communication happened; it is violated
because the attorney caused another to communicate with a represented part, regardless of what
the “another” really obtained. Riker’s actions caused Shirley, “another,” to communicate with
represented parties, her co-workers. That is why Riker violated Rule 4.2.
The Review Board made several attempts to justify its holding with public policy
supposedly in mind. First the Board declares that it is equally concerned with clients attempting
to speak with the opposing party without being properly counseled beforehand. If this were true,
then the Review Board would not have justified Riker’s weak attempt by saying that him saying
“may” is the same as saying “need.” Review Bd. Op. at 7, 9. Also, the Review Board mentions
its consideration of Riker’s request for a ruling that has more flexibility in order to balance an
attorney’s duty to counsel his client while respecting the roles of a represented party. Review Bd.
Op. at 8. A ruling with more flexibility is not going to respect the roles of represented parties
when the lawyer does not make an attempt to respect that process of getting consent of the
opposing counsel to begin with.
Ultimately, the Review Board’s, much like Riker’s, attempt to justify actions in hindsight
opposed to following the set procedure results in a breakdown of the Professional Rules of
Conduct and specifically Rule 4.2. To say that “Shirley obtained nothing that she could not have
otherwise secured without Riker’s assistance,” completely ignores the issue and uses reverse
logic. Shirley never would have known what information to secure without the assistance of
Riker’s first email, and it is therefore not a matter of whether she could have done it without his
assistance, it is a matter of whether she was actually caused to obtain the information because of
his assistance. Although Riker never specifically told Shirley, “go talk to your co-workers,”
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which seems to be what the Review Board was looking for, it is clear that every interaction Riker
had with Shirley influenced her decision to get more and more involved. Giving her the belief
that if she did not get involved, she would lose her case, Riker caused Shirley to communicate
with her co-workers, who were represented by opposing counsel in violation of Rule 4.2.
Therefore, this Court should hold that Riker caused his client, Shirley, to communicate
with represented persons, thereby contravening Rule 4.2.
CONCLUSION
For all of the foregoing reasons, this Court should reverse the decision of the Illiana
Review Board and hold that: (1) William Riker’s criticisms of Judge Picard violated Illiana’s
Rule of Professional Conduct 8.2 and are not protected under the First Amendment; and (2)
Riker violated the “no contact rule” by causing his client to communicate with represented
persons in violation of Illiana’s Rule of Professional Conduct 4.2.
Respectfully submitted,
ILLIANA PROFESSIONAL
RESPONSIBILITY DISCIPLINARY
COMMISSION
By: /s/ TEAM 3
Attorneys for Petitioner
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