Saturday, January 23, 2021
A decision of the Tennessee Supreme Court is summarized on the court's web page
In a case it called a “cautionary tale,” the Tennessee Supreme Court held for the first time today that lawyers who make unethical statements may receive harsher discipline if they choose to post the statements publicly on social media. In this case, a Nashville attorney posted comments on Facebook with instructions on how to shoot someone and avoid criminal conviction by making it look like self-defense.
Winston B. Sitton had a Facebook page that identified him as a lawyer. For about a year, Mr. Sitton was a “Facebook friend” of Lauren Houston but had never met her in person. Through Facebook, Mr. Sitton learned that Ms. Houston was going through a difficult breakup with Jason Henderson, the father of her child, and that she was concerned about abuse or harassment by Mr. Henderson.
In 2017, Ms. Houston posted a question 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?” Responding to her post, Mr. Sitton told her that it was better to get a “taser” or “tear gas.” If she were to get a shotgun, he said, she should first fill it with rock salt, then bird shot, and then “load for bear.” Mr. Sitton next posted:
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.
Replying to Mr. Sitton’s post, Ms. Houston commented, “I wish he would try.” Mr. Sitton then posted on Ms. Houston’s Facebook page:
As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread 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.
Mr. Sitton’s Facebook comments resulted in ethics charges with Tennessee’s Board of Professional Responsibility, the board that handles lawyer discipline. After a hearing, the Board recommended to the Tennessee Supreme Court that it suspend Mr. Sitton’s law license for 60 days. As part of normal procedure, the suspension was submitted to the Tennessee Supreme Court for final review. The Court indicated this sanction appeared inadequate given the facts and asked the Board and Mr. Sitton to brief the case.
In his brief, Mr. Sitton explained that his comments were sarcasm or “dark humor,” written hastily and not meant to be taken seriously. In the majority opinion authored by Justice Holly Kirby, the Court rejected this explanation.
First, the Court said, Mr. Sitton’s advice could have led to a disastrous outcome. Had Ms. Houston followed Mr. Sitton’s suggestion, Mr. Henderson could have ended up maimed or killed.
Second, Mr. Sitton’s comments encouraged Ms. Houston to purposefully set up a situation designed to make the premeditated use of deadly force look like self-defense. The Court said this was “grave misconduct.”
Third, Mr. Sitton’s choice to post his bad advice publicly fostered a cynical perception that the judicial process is corrupt and lawyers are co-conspirators who help clients manufacture fake defenses against criminal charges. The Court emphasized that the judicial system “is not based on lies and deception but on truth and honor.”
The Court remarked that practicing law is a privilege and lawyers in any setting—including on social media—are bound by the ethics rules. It held that Mr. Sitton’s advice to Ms. Houston violated those rules. His choice to post the remarks publicly on social media greatly amplified their damaging effect and justified an increase in discipline. The Court suspended Mr. Sitton’s law license for four years, with one year on active suspension and the rest on probation
Justice Sharon Lee filed a separate opinion, stating that she joined only in the section of the majority opinion that addressed the inadequacy of Mr. Sitton’s punishment. She agreed with the sanction imposed by the Court but disagreed that the Court should have reviewed the Board of Professional Responsibility hearing panel’s finding of misconduct and Mr. Sitton’s challenges to the hearing panel’s decision. In Justice Lee’s view, considering these issues exceeded the scope of the Court’s review under its rules.
To read the majority opinion in In Re: Winston Bradshaw Sitton, BPR #018440, authored by Justice Holly Kirby, and the separate opinion authored by Justice Sharon Lee, go to the opinions section of TNCourts.gov.