Wednesday, September 9, 2009

Blogging Lawyer Charged with Confidentiality Violations

The Illinois Administrator has just filed and published charges against an attorney that allege, in part, improper disclosure of confidential client information on a blog. The complaint alleges:

...Respondent was an assistant public defender in Winnebago County, Illinois. In the course of her duties, she had access to information about clients that would otherwise be confidential or secret.

Between June 2007, and April 2008, Respondent wrote and published an Internet web log ("blog") entitled "The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense." Approximately one-third of the blog was devoted to discussing Respondent’s work at the public defender’s office and her clients, and the remaining content of the blog concerned Respondent’s health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or by their jail identification number.

Respondent’s blog was open to the public and was not password-protected. Respondent knew or should have known that the contents of her blog were continuously available to anyone with access to the Internet, and she maintained a site meter on the blog that counted the number of visits to the blog. At some point, Respondent posted the following language on her blog:

Commentary is Both Invited and Appreciated. Let’s Get Some Dialogue Going!

On or about March 14, 2008, Respondent represented a college student in relation to allegations that he possessed a controlled substance. On March 14, 2008, Respondent published the following entry on her blog:

#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he’s no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

Respondent knew or should have known that information contained in her March 14, 2008 blog...was confidential, or that it had been gained in the professional relationship and the revelation of it would be embarrassing or detrimental to her client.

On or about March 28, 2008, Respondent represented a diabetic client in relation to his drug charges. On March 28, 2008, Respondent published the following entry on her blog:

"Dennis," the diabetic whose case I mentioned in Wednesday’s post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t being managed well.

Respondent knew or should have known that the information contained in her March 28, 2008 blog was confidential, or that it had been gained in the professional relationship and its revelation would be embarrassing or detrimental to "Dennis."

On or about April 9, 2008, Respondent represented a woman in relation to allegations that she had violated the terms of a previous order of probation. On April 9, 2008, Respondent published the following entry on her blog:

"Laura" was a middle aged woman with 7 children, 2 of them still adolescents. She was a traditional housewife. Her husband, a recovering alcoholic, worked. She stayed at home, and home schooled her child who was handicapped amd (sic) learning disabled. In her favor, her original offense was a matter of sheer stupidity. She had forged a doctor’s name on a prescription form, in order to obtain Ultram from a pharmacy. Ultram is a painkiller with weak opiate effects and some effect of the serotonin system as well. It is prescription only, but it is not a controlled substance. It’s a moderately decent painkiller, but after a day or 2, any opiate-type "high" is long gone – at least for most people I know. I’ve used it off and on for years and I’ve never noted any "craving" or any other significant effect when I stop. I can’t imagine why someone would get "addicted" to the stuff. Further, from spam comments and e-mails, I gather that you can get the stuff over the Internet with ease and without a prescription at a not unreasonable price if you really want to, so why she would have forged a prescription form for that drug is beyond me. Still, that’s what she did, and she got caught, and she claimed to have stopped using. She claimed, per her pre-sentence report, not to be using any drugs at this time. And she had not been rearrested for anything other than 1 ticket for driving without a license in the intervening 5 years. On the other hand, while sentenced to the diversionary program, she had been referred to two different agencies and had never attended or completed any treatment program, and she had not been in contact either with her case supervisor or her probation officer since 2005, despite reminders and letters. She swore up and down to me that she was clean, she was no longer addicted, she had gone through a period of depression and had fallen out of touch and not known how to rectify the situation without risking jail. She was scared, and not experienced in the system. It seemed plausible. Neither I nor the prosecutor had any information on hand that would contradict the PSI and her statement in allocution.

The judge was lenient, given her family situation, her relative lack of criminal history, her good behavior other than status violations of omission, and the lack of any evidence of a current drug porblem (sic). He sentenced her to an additional term of 1 year probation, and ordered her to serve 90 days in jail, the first 5 immediately, and the balance held suspended. It was a gift. I felt I’d done my job well.

The bailiffs took her back to holding, pending transport to booking. In no more than 3 minutes, they came back. "Laura" wanted to talk to the judge. They advised her to talk to me first.

So I went back there to see what her concerns were. "But I’m on Methadone!" she tells me.

Huh? You want to go back and tell the judge that you lied to him, you lied to the pre-sentence investigator, you lied to me? And you expect what to happen if you do this? I’ll tell you what would happen; the sentence just pronounced would be immediately vacated and you’d go to prison, that’s what would happen.

"Can I get my methadone while I’m in jail?" she asks me.

No! Geez, what do you think jail is? Of course they’re not going to give you narcotics up there. You’ll be lucky to get Tylenol for a broken bone.

"What am I going to do," she asks me. "I can’t go 5 days without methadone."

Respondent knew or should have known that the information contained in her March 28, 2008 blog was confidential, or that it had been gained in the professional relationship and its revelation would be embarrassing or detrimental to "Laura."

On or before April 18, 2008, Respondent’s supervisor at the Winnebago County Public Defender’s Office became aware that Respondent was publishing blogs containing information about Respondent’s clients. On or about April 18, 2008, Respondent was terminated from her employment as an assistant public defender based upon the blogs that she had published.

In addition to the blog entries described...above, in a blog entry dated February 5, 2008, Respondent referred to a judge as being "a total asshole," and in a blog entry dated March 11, 2008, Respondent referred to a judge as "Judge Clueless."

Respondent’s blog entries...contained sufficient identifying information such that Respondent’s co-workers, employees of the State’s Attorney’s Office, police, bailiffs, or other participants in the Winnebago Circuit Court system could determine the identity of the clients and judges to which Respondent’s blog entries referred. The blog entries also contained sufficient information such that a motivated person who was not an employee of the Winnebago Circuit Court could, using other publicly-available information, determine the identity of the judges and clients referred to in Respondent’s blog entries as described...above.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/09/wave-of-the-future.html

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Comments

what an idiot! even using a jail ID # would help identify some of the people she was talking about in her blog! She should have known that she was giving enough info about these people that others would know who they were talking about, and if I were one of these people I would be highly upset.

I want to take a quote from her and say " Just goes to show you that higher education does not imply that you have any sense." She should have known better!

Posted by: citizen cane | Sep 10, 2009 4:46:08 AM

In her defense, Judges Asshole and Clueless could refer to any number of the judiciary...

Posted by: Name120 | Sep 11, 2009 2:45:33 PM

How nice to see that the online edition of today's New York Times linked to this story!

Posted by: Mark | Sep 13, 2009 3:30:39 AM

As a former Assistant Public Defender for Cook County, IL. (retired in 2002), I have often been tempted to comment on the stupidity of many of my clients, however I had the presence of mind not to blog about them or otherwise breach attorney/client confidentiality! I had written a satirical poem about one's cocaine habit and representing him in a violation of probation hearing, which I circulated among my colleagues and supervisor, which had all laughing out loud and rolling on the floor! I also was tempted to write about various idiots in the judiciary, including one known as "the accidental judge (since retired)," because his electoral opponent, an incumbent, had been arrested for possession of marijuana in a foreign country! After calling one of his rulings "nuts" on the record, the prosecutors complemented me and referred to me as Anthony McAuliffe in tribute to the famous General of the 101st Airborne, who gave the same response to a German demand for surrender during the Battle of the Bulge!

Attorneys, as with all others with a passion for writing, are often tempted to comment on the absurdities of life and the idiots which we encounter on an almost daily basis, but as "Officers of the Court" and members of the Bar, we are obligated to protect client confidentiality and act so as to not bring the judiciary into disrepute (Many judges do this extremely well without any outside assistance!). This should be a lesson to all that once your musings and commentary are posted online, there is no way to retract them, and that posting apologies and "oops, my bad," does not mitigate the damage that you have caused to others and to your own career! Before the internet, one could write out one's aggressions on paper and then tear up the letter, but once you hit that send button, there is no way of taking it back!

Posted by: Mike III | Sep 13, 2009 9:14:14 AM

What on earth was this experienced defense attorney thinking? Years ago when I was a public defender in Lake County we would laugh INSIDE the office about some of the things that went on but putting this stuff out on the web?
Maybe the office directors should have a staff meeting on just what happens when postings are published.

Posted by: Liz McClain | Sep 22, 2009 7:58:23 AM

This is purely unprofessional. She should have known that she is violating a law by blogging about his clients comment. I sure that this has been resolved.

Posted by: Tom Smith | Jan 25, 2013 9:26:56 PM

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