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Defense Lawyer Threatens Ethics Complaint Against Blogger Who Helped Her Client

Talk about looking a gift horse in the mouth. One might think that Kathy Kelly, of the Capital Post-Conviction Project of Louisiana, jumped for joy upon discovering this blog post by Patrick Frey, a Los Angeles Deputy District Attorney who writes an off-the-clock blog, Patterico's Pontifications. Not only did Frey build a case for witness misconduct and evidence tampering by two prosecution witnesses in a Louisiana murder trial that landed Kelly's client, Jimmy Duncan, on death row, but he even conducted an interview with another prosecution expert witness. Given that a post like this one -- coming from a prosecutor -- could potentially provide grounds for appeal, you'd have expected Kelly to get on the phone with Frey ASAP.

Kelly did indeed contact Frey -- to threaten him with an ethics complaint! As Ben Sheffner describes at Copyrights and Campaigns, when Kelly came across Frey's blog, she posted the following comment:

I’m am [sic] Mr. Duncan's lawyer. This case is currently on appeal. You are not the prosecutor, the judge or a forensic expert. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing. As a lawyer you should no [sic] that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.... You are a memeber [sic] of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you. Again you are neither the DA or the JUdge [sic] in this case.

Sheffner expressed sheer disbelief at the possibility that an attorney who blogs as a hobby and has no official involvement in a matter could be liable for violating ethics rules by offering analysis in an ongoing matter. Sheffner also went the extra mile and analyzed Frey's conduct under the California Rules of Professional Conduct, and again came up empty handed. Indeed, not even two law professors -- Eugene Volokh at The Volokh Conspiracy or David Hricik at Legal Ethics Forum -- could identify any impropriety.

Personally, I disagree. I believe that this matter does present serious ethics violations -- but by Kelly, not Frey. For starters, there's the matter of Kelly threatening to take an ethics action against Frey when there seems to have been no legitimate basis for doing so. But more importantly, what kind of a defense attorney, when confronted with evidence compiled by a reputable blogger (who is a prosecutor, no less) wouldn't at least contact him for additional information? After all, recall that the Durham in Wonderland blog put the spotlight on the many prosecutorial improprieties in the Duke Lacrosse case. Perhaps I could understand if Kelly was concerned that Frey's posts would tip off prosecutors. But again, the appropriate response would have been a phone call, not a threat of an ethics charge.

In this day and age, no lawyer can afford to ignore leads (or at least seemingly credible leads) generated through blogs. Providing those leads as Frey did isn't unethical; disregarding them as Kelly did is.

Posted by Carolyn Elefant on March 4, 2009 at 11:41 AM | Permalink | Comments (2)


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