It’s unethical for a lawyer to play a sad violin over Facebook??? Why yes, it is!
Eric Michael Gamble was representing a biological father opposed to the adoption of his daughter, which had been approved by the 18-year-old mother.
After Gamble deposed the young woman, he messaged her on Facebook in a shamelessly manipulative fashion, saying…
‘I wish to offer you some reasons why you should stand up and fight for your daughter. As you know, I am the attorney for [the biological father]. We held your deposition in my office. I wanted to give you the chance to make things right. This may be your last opportunity to be a mom for [the baby]. As I told you after your deposition in my office, it is not too late. You still have a wonderful opportunity to have a real relationship with your daughter if you so choose. I have attached a document for you to consider signing and bringing to court or to my office. It is a revocation of your consent to adopt. If you sign this document there is a very good chance that you will be able to call [the baby] your own and [the baby] will call you her mom. I can’t begin to explain how beautiful and wonderful parenthood is. I have a little girl myself and she is my world just like you are your dad’s world. [The baby] deserves to know her parents. She deserves to know that you love her and care for her as well. Do not let this opportunity pass you by because you will live with this decision the rest of your life and [the baby] will know someday what happened. [The adoptive parents] do not legally have to ever let you see her again after court (although they are probably trying to convince you otherwise with the idea of an ‘open adoption’). The reason why you don’t know about the trial was because they don’t want you there because that doesn’t help [the adoptive parents] case. This is your time to get rid of the guilt and standup and do what is right and what [the baby] deserves. She deserves to have her parents love and care for her. She deserves to know her grandparents and extended family. If she’s adopted, she won’t have that chance. [The biological father] wants to be her dad and to love her. She deserves that. I urge you to print, sign, and notarize this document and bring it to my office before court. Trial is June 27, 2013, at 9:00 a.m. at the Johnson County Courthouse, Division 15. I hope to see you and your father there.’
What’s wrong with this? The legal ethics rules protect unrepresented parties in a matter from exactly this sort of pressure. Rule 4.3, in Kansas and elsewhere, prohibits a lawyer from giving advice to adversaries of his or her client, which statements like “This is your time to get rid of the guilt and standup and do what is right and what [the baby] deserves” clearly are. The rules also require lawyers to treat all participants in the justice system with fairness and respect. That message constitutes neither. Rule 4.4 says that “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Gamble has a defense, of course: his substantial purpose was to have the adoption dropped like his client wanted, but since he wasn’t supposed to be talking to her anyway (other than to advise her to get a lawyer), that wasn’t going to fly. Rule 8.4, meanwhile, says that a lawyer must not “engage in conduct that is prejudicial to the administration of justice.”
After he lost the case, Gamble reported himself for the Rule 4.3 violation. This is usually a good tactic to encourage lenient treatment, but in this case, it didn’t work. In suspending Gamble for six months, the Kansas Supreme Court seemed to invoke all three of the violated rules, as it wrote,
“…As the hearing panel noted, respondent “attempted to manipulate the biological mother and, as a result, interfered with justice.” Respondent’s conduct “amounted to emotional blackmail” of an unrepresented 18-year-old who was dealing with a process that was already “’emotionally exhausting.'” His “electronic message was designed to embarrass, burden, and create guilt in the mind of the biological mother.” These “bullying tactics directly reflect on [respondent’s] fitness to practice law as an attorney.” Consequently, we hold that the respondent should be suspended for a period of 6 months. A minority of the court would impose a longer period of suspension. We unanimously order a reinstatement hearing under Rule 219.”
And the social media claims another victim.
Addendum: I was remiss, in posting this, not noting that the underlying issue in the lawsuit is a far more serious and complex ethical and legal one than the topic of this post: the matter of unwed mothers putting their new borns up for adoption without the father’s consent or participation. That has been a battle royale on Ethics Alarms twice, and you can review it here.
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Pointer: ABA Journal
Facts: Legal Profession Blog
Ethics Alarms 
“Social media claims another victim?” Not in this case, IMO.
Social media can and has inflicted enormous damage upon individuals who are the brunt of social attacks – basically, these individuals are the victims of digital lynch mobs, most of whom are high on dudgeon and low on facts.
But is that really the case here? Gamble could have sent the message via e-mail, or fax, or telephone. Had he done so, would he have not been just as guilty of the rules violations?
If he’s a victim of social media, it seems to me that his wounds were self-inflicted. Social channels can certainly create victims, but that doesn’t seem the case here. Or am I missing something?
You are only missing the greater context, which is that lawyers keep screwing up by misusing Facebook, Twitter et al, because they don’t understand them, and get careless. I keep seeing lawyers either ignore Facebook or not take proper precautions. Sure it’s self-inflicted. But if I say, “Heroin claims another victim,” you know I’m not accusing heroin of sneaking into a guy’s vein while he sleeps, right?
I think it’s a matter of newer technology. I’m sure people felt similarly when the photograph was invented, or the Polaroid, all of a sudden you could prove that people had been places and done things. And then as people became more accustomed to the technology, rules and boundaries, written or otherwise, were felt out and enforced. I think the older generation struggles with it, and this problem will get a little worse before it gets better.
Correct me if I’m wrong, Jack, but I think Jack meant the mother was the victim of social media.
I might have meant that, but I didn’t. See my reply to Authur.
I would be more sympathetic if the lawyer was being ethical and made a mistake due to his lack of knowledge regarding Facebook.
No, he was unethical AND was careless about Facebook.
What are the proper precautions that were not taken or knowledge this attorney should have had when he messaged the girl on Facebook? It seems he knew exactly what he was doing. Anthony Wiener was unethical and careless.
I think his first mistake was attempting to conduct professional business over Facebook. I mean really. Facebook. What’s next, are we going to text summons? He should have asked for her lawyer, he should have done so in writing, he could have advised her that the court appearance was happening, but should not have advised her to attend… This was a wreck.
I think his first mistake was attempting to conduct professional business over Facebook.
Bingo.
OK…I think I have it now. If he was going to be unethical, he should have at least been professional about it.
Or smarter. Saying that stuff is an ethics violation, but hard to prove. Writing it is idiotic. That’s why he self-reported: he realized he had left a smoking gun.
Tangent for a moment, this is a hot button topic in anti-feminist circles (Father’s Rights). I’d like to point out that the 18 year old mother put the child up for adoption, not only without the consent of the biological father, but expressly against his wishes. This child has a father that wants him or her, but instead we are subjecting the child to a Soloman-esque court decision. This isn’t “Her body, her choice” any longer. Why on Earth do we let mothers do this?
Oh, goodie! You obviously haven’t been immersed in this blog’s exploration of the “Baby Emma”/ “Bay Wyatt” issue, which is covered in these posts and a lot of indignant, angry comments.
A precis of my position: 1) When the law allows the mother to kill her unborn child without the father’s assent, one can hardly object that she can give the child to someone else to raise. Or would you prefer the child be killed? and, to quote my most recent summary:
1. The situation would have probably not occurred if the child’s mother and father had been married before conceiving a child.
2. Both of them were irresponsible to plan on having a child together without formalizing a mutual commitment to form a family and raise the child together…that apparently archaic institution known as “marriage.”
3. The mother betrayed the father’s trust, deceived him, and treated him unfairly.
Absent a marriage, it is fair and reasonable that the mother of a newborn be able to put the child up for adoption if she deems that course better for the child than being raised by the child’s father. That is not necessarily permitted by state law,and I would not vigorously oppose a law that directed otherwise, as Virginia’s law does. I only state that my own belief is that incentives for irresponsible parenthood are unwise.
I see many scenarios that could be behind a mother’s decision to give a child to adoptive parents rather than the biological father. They fall into three distinct categories: ethical, unethical, and too close to call:
It would be unethical to put the child up for adoption without notifying the father if….
….the mother knew she was violating the father’s legal rights, and there were no other factors outweighing them.
…the mother had always intended to give up the child, and had been leading the father along to believe otherwise without any justification, such as fear of violence.
….the mother changed her mind during the pregnancy, didn’t want to disappoint the father and was averse to conflict.
…the mother gave up the child for financial gain or other personal benefits.
…the mother gave up the child without considering the best interests of the child or the fitness of the adoptive parents.
…the mother gave up the child for revenge, in anger, out of hatred for the father, or for the purpose of intentionally hurting the father in any way.
….adoption is inherently unethical and un-natural.
It would be ethical to put the child up for adoption without notifying the father if this could be accomplished without violating state law and….
…the mother had reason to believe that the father would become violent and harm her.
…the mother had been abused during the relationship.
…the mother had been coerced or intimidated by the father into conceiving the child or having the child against her will.
…the mother had knowledge that the father would be an unfit parent due to addiction, emotional problems, untrustworthiness or a violent nature.
The ethics of giving the child up for adoption are too close to call if…
…the adoption was illegal under state law and she believed that her and/or the child’s health and safety would be at risk if the father were informed.
The problem doesn’t arise at all, however, if the couple commits to staying together as a family before having a child. This is not a new discovery, and has in fact been recognized as the ethical and responsible course for thousands of years. When will they ever learn?
Have fun!
I read your article, and the comments, and want to make a rebuttal and add a perspective.
“1) When the law allows the mother to kill her unborn child without the father’s assent, one can hardly object that she can give the child to someone else to raise. Or would you prefer the child be killed?”
I have a solid anti-abortion stance. I try a much lighter touch than the average pro lifer, but my position is that abortion is an ethically bankrupt thing to do. I don’t know what the right answer is legally on abortion, because it is an unprecedented intrusion on someone’s personhood to force them to do something with their body, and I hate the idea of giving the law that kind of control. But I think that once the child has run the uterine gambit and comes out uncoathangered, it’s not unreasonable to treat the situation differently. I would never prefer the child be killed, but I think that’s a false dichotomy, the train of thought I read in your statement is that mother would rather kill the child (that she accepts as being a child) than let the father care for it. To quote you, adoption is unethical when
“…the mother gave up the child for revenge, in anger, out of hatred for the father, or for the purpose of intentionally hurting the father in any way.”
Spitekilling your baby is monstrous. Just saying.
Second, while I agree that marriage is absolutely the best choice. We’re talking about the decisions that have to be made once stupid decisions have been made. Following stupid up with bad options because they should have made better choices first is a very similar train of thought to the one that leads to abortion.
So, accepting that obviously, a loving marriage is the superior choice in raising children, what do we do in the absence of that marriage? What are the choices, what are the ethics. What is right and fair?
We’re talking about two people who are equally irresponsible, and a state that is so negligent it often breaks into being malicious. The parents (we assume, as is most likely) consented to unprotected sexual relations, knowing that a child was possible, and that they weren’t married. I understand that we treat the actual pregnancy different because it occurs inside the body of the mother, and I’ll even give you that because of the risk of spitekilling, in the best interest of the child, it might be a better proposition for the mother to get dibs, even if it’s fundamentally unfair to the father (and the child, if the mother is less fit). But once the mother has decided to give the child up for adoption…. I can’t think of an ethical justification for a blanket policy of bypassing the father. I understand that the father may not be the ‘best’ option… But nothing is saying he isn’t. And once we’ve already entertained the idea of killing the child for whim and allowing the mother custody regardless of her fitness, I have to sympathise a little with a father willing to step up and say, “That’s my kid! I want to care for it.” If we approach from the point of view of what is best for the child, which we really should, as they are the real innocents and victims when parents are stupid, it strikes me as stupid to subject that child to the system.
You do understand that I think what the mother is doing is terrible, right, unless he knows that the father is unfit in some way? My point is that this is just another reason why not getting married before putting a child in this position is irresponsible. The mother is wrong, but I have no sympathy for the father. His plight is due to his own conduct, 100%.
I don’t understand how you can look at it that way. Both the mother and father are irresponsible. But the father’s plight is different from the mother’s, and in every conceivable way worse, not because of his choices…. They both made the same choices up until conception…. But because of an artificial social system. It flies in the face of every conception of fairness.
At every step of the process, the mother has an arsenal of choices not available to the father, all I’m saying is that it is ethically unacceptable to leave those laws and policies in place so long as they aren’t there for a legitimate reason. And I’m still waiting for a reason to be explained to me that legitimizes bypassing the father in adoption where the mother has decided not to keep her child.
And I’m saying, if you don’t get married before you impregnate a woman, you knew the law, you know the consequences, you had it in your power to both do the right thing and not render yourself vulnerable, and just decided to put a child at risk anyway vbecause you wanted to get your rocks off. I have zero sympathy for you. If your plight makes the next guy not create a family-less, unwanted child, good.
First, Do you really think the average person is that legally literate?
Second, we might have to disagree on this. I don’t understand how you can take a situation where two people are equally stupid, make one more responsible, and call it ethical. At best your argument is that they should have known better, which still leaves the law as innately unethical. It’s discriminatory.
I guess that’s what I’d need you to explain to understand this… How a discriminatory law is somehow ethical. Or are you saying the law isn’t discriminatory? Are you looking at this from a utilitarian perspective, where you know that we’re putting a heavier burden on men than women without justification, but that’s ok because you think it’s necessary to encourage marriage? And if that’s the case, accepting that marriage is optimal, wouldn’t it make a whole lot of sense to provide the same disincentives to single motherhood? This seems to make a mockery of The golden rule and Kant.
I never said it was ethical. Nowhere. Re-read, please. I said that the mother’s conduct is despicable, and that he was betrayed. And that bad things happen to people who do unethical things, and while two wrongs don’t make a right, it doesn’t make the wrongdoer sympathetic.
No, they are not literate, and that’s also their fault. “Ignorance of the law is no excuse” Ignorantia juris non excusat And it’s a good rule.
My apologies, I think my hang up was the idea that if you’re defending the practise, you must think it was ethical. Rereading it though, you weren’t really defending the laws. So I was wrong.
While I can see that what the mother was doing behind the father’s back was unethical, the attorney was still in the wrong as this clearly shows bullying tactics to win his case. How sad is that? He didn’t even need to resort to this behavior. Thanks for sharing this important story with us :-). I just finished a really good book on this topic by Nancy Omeara called, Creating Hate: How It Is Done, How To Destroy It: A Practical Handbook. After you read it, you’ll look at the news, blogs, any information campaign quite differently. http://www.authornancyomeara.com/