The Tennessee Supreme Court recently suspended a lawyer from the practice of law for publicly posting comments on Facebook with instructions on how to shoot someone and avoid criminal responsibility by making it look like self-defense. See In re: Winston Bradshaw Sitton, BPR#018440 (Jan. 22, 2021). Notably, the court enhanced the sanction because the misconduct occurred online.
Planning to Kill?
The respondent, Winston Sitton, published a Facebook page on which he identified himself as a lawyer. Mr. Sitton learned that one of his Facebook friends, Lauren Houston, was involved in a tumultuous break-up with the father of her child. The following exchange of posts and comments about that break-up led to Mr. Sitton’s discipline.
Ms. Houston posted this on her Facebook page:
I need to always carry my gun with me now, don’t I? Is it legal to carry in TN in your car without paying the damn state?See In re Sitton at 2.
Mr. Sitton responded to Ms. Houston’s post:
Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.
If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.See Id. at 3.
Mr. Sitton continued:
As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this threat and keep quiet. Your defense is that you are afraid for your life revenge or premeditation of any sort will be used against you at trial.See Id. at 3.
Heading Mr. Sitton’s advice, Ms. Houston deleted her Facebook post.
The post, however, didn’t disappear. The Tennessee Board of Professional Responsibility learned about it and filed a petition for discipline.
A hearing committee concluded that Mr. Sitton’s act of “giving advice as a lawyer about planning in advance how to claim a defense to killing someone” was conduct prejudicial to the administration of justice and violated Tennessee Rules of Professional Conduct 8.4(a) and (d). In doing so, the hearing committee rejected Mr. Sitton’s claims that the comments were “sarcasm” and “dark humor.” The hearing committee recommended that the Tennessee Supreme Court suspend Mr. Sitton’s law license for sixty days.
Harsher Discipline for Lawyer’s Public Statements
The Tennessee Supreme Court held that the sixty-day suspension recommended by the hearing committee was inadequate. Instead, the court imposed a four-year suspension, with one year to be served on active suspension and the remainder on probation. The court emphasized that Mr. Sitton’s public comments caused “grave damage” to the public perception of the legal system:
The larger Facebook audience for the exchange would have come away thinking: this is what lawyers do; they give advice on how to commit crimes and get away with it. Publicly fostering such a distorted image of the role of lawyers does grave damage to the administration of justice in our State.See Id. at 21-22.
The court concluded that Mr. Sitton’s statements would have constituted misconduct even if made privately. However, the court held that the public nature of the comments was an aggravating factor warranting an enhanced sanction. The court noted that “the fact that ethically problematic conduct occurs on a social media platform need not always be an aggravating circumstance.” But when, as here, “the use of social media exacerbates the problem the ethical rule seeks to address,” enhanced sanctions for publicly engaging in unethical conduct was appropriate. See id. at 22.
There is nothing wrong with a lawyer engaging in communications on social media. But, Mr. Sitton’s “case is a cautionary tale on the ethical problems that can befall lawyers on social media.” Lawyers who maintain a personal or professional presence on social media platforms must exercise care and judgment when posting online.