Tuesday, May 27, 2008

Twenty First Century Misconduct

An attorney was suspended for two years with supervision for one year on reinstatement by the West Virginia Supreme Court of Appeals. The attorney violated ethics rules "by repeatedly accessing the e-mail accounts of other attorneys, without their knowledge or permission, for over a two-year period." He had monitored the e-mail of his wife, an associate at a different firm than employed him, because he suspected an affair between his wife and her client. "Eventually...his curiosity got the better of him, and he began accessing the e-mail accounts of seven other [of his wife's firm] attorneys." The firm hired an expert to investigate when it suspected unauthorized access, leading to several accounts to which the attorney had access. The managing partner of the wife's firm filed an affidavit claiming that "the negative ramifications and stigma of [the] misconduct will be felt for many years."

In evaluating the misconduct and determining sanction, the court concluded:

      In the instant matter, we are mindful of the mitigating factors presented by Respondent, including the unique circumstances which motivated his misconduct in the first place. However, there are also several aggravating factors which this Court cannot ignore or minimize. Though Respondent initially accessed his wife's OFN e-mail account with motives very personal to his marriage, his misconduct eventually became more rampant. Out of simple curiosity, he broke into the e-mail accounts of eight of his wife's unsuspecting co-workers on almost a daily basis for over a two-year period. He did not cease or disclose his actions until he learned OFN's computer experts were on the verge of discovering who was behind the unauthorized intrusions. Moreover, in addition to confidential personal information, Respondent viewed confidential financial information intended to be read exclusively by OFN partners. With regard to confidential client information, in one instance, his firm and OFN represented separate co-defendants which had interests adverse to each other because Respondent's client had an indemnity claim against OFN's client.

       Presently, there is no evidence that Respondent has used or misused the information he improperly accessed from OFN. Nevertheless, we must recognize that OFN has suffered negative consequences from Respondent's actions. Not only was OFN forced to expend valuable time and resources to investigate the matter, but it was also required to disclose the unfortunate events to its clients, opening itself up to potential lawsuits and professional embarrassment. Moreover, one is unable to predict or tangibly quantify the future impact of Respondent's misconduct on OFN or on Respondent's former law firm in terms of attracting new clients.
      Finally, we recognize that with the widespread use of computer e-mail as an important method of communication between and among attorneys and their clients comes the potentiality that the communication might be improperly infiltrated. This Court does not take lightly the fact that, in this case, it was an attorney who repeatedly accessed the confidential e-mails of other attorneys without their knowledge or permission. Thus, the imposition of a suitable sanction in a case such as this is not exclusively dictated by what sanction would appropriately punish the offending attorney, but, just as importantly, this Court must ensure that the discipline imposed adequately serve as an effective deterrent to other attorneys, “to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice.” Accordingly, based upon the foregoing, we are compelled to adopt the recommendation of discipline tendered by the Board. (footnotes and citations omitted)
Justice Starcher reserved the right to file a concurring opinion. (Mike Frisch)


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View information about Orange County's first judge to be removed from the bench here:


Posted by: kelly maceachern | Oct 24, 2008 10:21:07 PM

The California Supreme Court denied Kelly MacEacherns’ appellate petition for review of the CJPs’ removal decision on Dec. 10th. More information can be viewed here:


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