No. 2014-274

IN THE SUPREME COURT OF ILLIANA

______________________________________________________________________________

ILLIANA PROFESSIONAL RESPONSIBILITY DISCIPLINARY COMMISION

Petitioner,

V.

WILLIAM T. RIKER,

Respondent.

______________________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE ILLIANA REVIEW BOARD

______________________________________________________________________________

____________________________________

Brief for the Respondent

____________________________________

Team 5

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ i

TABLE OF AUTHORITIES......................................................................................................... iii

QUESTIONS PRESENTED FOR REVIEW................................................................................ vi

STATEMENT OF THE CASE....................................................................................................... 1

SUMMARY OF THE ARGUMENT............................................................................................. 5

STANDARD OF REVIEW............................................................................................................ 6

ARGUMENT.................................................................................................................................. 8

I. WILLIAM T. RIKER’S CRITICISM OF JUDGE JEAN-LUC PICARD DID NOT VIOLATE ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2................... 8

A. In the application of either the actual malice standard or the objective reasonable attorney standard, Riker’s statements do not violate Rule 8.2 and therefore the Review Board was correct in reversing the Hearing Panel’s decision for sanctions.................................................................................................... 8

1. If this court adopts the actual malice standard, Riker should not be subject to sanctions because the statements he made impugning Judge Picard were made out of the belief of their veracity............................................... 8

2. If this court adopts the actual malice standard, Riker should not be subject to sanctions because the statements he made impugning Judge Picard were made out of the belief of their veracity............................................. 10

B. Riker’s email was a private communication not made public and therefore not subject to the same scrutiny as public criticism.................................................... 12

C. Riker’s statements are protected by the United States Constitution’s First Amendment in either a balanced interest standard or a substantive inquiryof the facts and opinions............................................................................................. 13

1. Balancing the Competing Interests at Stake......................................................... 15

2. Substantive Inquiries of Fact and Opinion............................................................ 17

II. MR. RIKER DID NOT CAUSE HIS CLIENT MONICA SHIRLEY TO COMMUNICATE WITH A REPRESENTED PERSON IN VIOLATION OF ILLIANA RULE OF PROFESSIONAL CONDUCT 4.2.......................................... 20

i

A. A client should not count as “another” for the purposes of Rule 4.2 as the “clear standard” sought by the Review Panel should not automatically deem clients to be “another” under the Rule.............................................................. 21

B. Assuming a client counts as “another” for the purposes of Rule 4.2, the Review Panel correctly determined Mr. Riker did not overreach as the client orchestrated the communication which Mr. Riker did not later ratify.............. 25

1. Mr. Riker demonstrated no intent to side-step the “no contact” rule asthe communication was orchestrated by the client and not Mr. Riker.................. 25

2. Mr. Riker did not ratify his client’s actions after learning of the forbidden conduct................................................................................................. 29

CONCLUSION............................................................................................................................. 30

ii

TABLE OF AUTHORITIES

CASES

Bd. of Prof’l Resp. v. Melchior,

269 P.3d 1088 (Wyo. 2012).............................................................................................. 24

Bratcher v. Ky. Bar Ass'n,

290 S.W.3d 648 (Ky. 2009).............................................................................................. 27

Garrison v. La.,

379 U.S. 64 (1964)............................................................................................................ 10

Gidatex, S.r.L. v. Campaniello Imports, Ltd.,

82 F.Supp.2d 119 (S.D.N.Y. 1999).................................................................................. 27

Holdren v. Gen. Motors Corp.,

13 F.Supp.2d 1192 (D. Kan. 1998)................................................................................... 26

Idaho State Bar v. Topp,

925 P.2d 1113 (Idaho 1996).............................................................................................. 16

In re Anonymous,

819 N.E.2d 376 (Ind. 2004)........................................................................................ 27, 28

In re Green,

11 P.3d 1078 (Colo. 2000).................................................................................................. 9

In re Marietta,

569 P.2d 921 (Kan. 1977)........................................................................................... 26, 27

In re Ositis, 

40 P.3d 500 (Ore. 2002).................................................................................................... 27

iii

In re Pyle,

91 P.3d 1222 (Kan. 2004)................................................................................................. 26

In re Sawyer,

360 U.S. 622 (1959).......................................................................................................... 13

In re Wilkins,

777 N.E.2d 714 (2002).......................................................................................... 14, 15, 16

Matter of Isaac,

76 A.D.3d 48 (N.Y. 2010)................................................................................................ 12

New York Times v. Sullivan,

376 U.S. 254 (1964)............................................................................ 7, 8, 9, 13, 14, 15, 16

Office of Disciplinary Counsel v. Gardner,

793 N.E.2d 425 (Ohio 2003)................................................................................... 9, 15, 18

San Francisco Unified School Dist. ex. rel. Contreras v. First Student Inc.,

213 Cal. App. 4th 1212 (2013)....................................................................... 20, 21, 24, 25

Standing Comm. on Discipline of the United States Dist. Ct. v. Yagman,

55 F.3d 1430 (1995)........................................................................................ 10, 16, 17, 18

State ex rel. Oklahoma Bar Ass'n v. Porter,

766 P.2d 958 (Okla. 1988)............................................................................................ 9, 16

STATUTES

Illiana Rules of Prof’l Conduct

Rule 4.2....................................................................................................................... 19, 22

Illiana Rules of Prof’l Conduct

Rule 8.2................................................................................................................................7

iv

OTHER AUTHORITIES

ABA Formal Ethics Op. 11-461 (2011).................................................................................. 21, 22

Ass’n of the Bar of the City of New York Comm. on Professional and Judicial Ethics

Formal Op. 2002-3 (2002)................................................................................................ 23

California Comm. on Prof'l Resp. and Conduct

Formal Op. 1993-131 (1993)............................................................................................ 22

v

QUESTIONS PRESENTED FOR REVIEW

1. Whether William T. Riker’s criticism of Judge Jean-Luc Picard violated Illiana’s Rule of

Professional Conduct 8.2?

2. Whether Riker caused Monica Shirley, his client, to communicate with a represented

person in violation of Illiana’s “no contact rule” in violation of Illiana Rule of

Professional Conduct 4.2?

vi

STATEMENT OF THE CASE

The Respondent, William T. Riker (“Riker”), is a practicing attorney with a history of

good standing in the State of Illiana. After being passed over for a promotion as a loan officer

due to what she believed was gender discrimination, Monica Shirley (“Shirley”) filed an Equal

Employment Opportunity Commision (“EEOC”) charge against her employer, Wall Street Bank.

(R1. at 1.) Shirley then retained Riker, whom she knew as a family friend, to represent her in the

pending discrimination matter. (R1. at 1.)

On December 15, 2012, Riker met with Shirley to discuss her upcoming gender

discrimination case in greater detail. (R1. at 1.) Shirley explained to Riker that it was her desire

to continue working at Wall Street Bank and her desire and purpose in filing this charge was to

obtain the promotion she believed she deserved without creating “too much trouble in the

workplace.” (R1. at 2.)

After their meeting where Shirley conveyed her goals for the upcoming litigation, Shirley

initiated a text message conversation where she suggested that Riker meet with her boss so that

they could discuss the case details at length. (R1. at 2.) Riker informed Shirley that would be

unable to attend a meeting of this nature “because your boss and coworkers are represented by

the defense attorney Wall Street Bank hired to defend this case, and I cannot speak with anyone

in this case who is represented without first getting their lawyer’s permission.” Shirley then

asked Riker if there was a rule that would prevent her from being able to talk to her boss. Riker

replied:

No you can talk to your boss- and anyone else for that matter- about anything you want. Since the bank has lawyered-up, I certainly cannot speak with its employees about this case. Our first priority is to figure out exactly what we need to prove our case. I’ll do some homework and get you up to speed soon. Then we can start working on gathering the information we need.

1

(R1. at 2.)

Following their text exchange, Riker began his legal research on WesLex to obtain

statistical factual information regarding Shirley’s case. (R1. at 2.) Riker’s research revealed that

the manner in which the law was written and the method by which the laws were interpreted by

the courts favored the employer. (R1. at 2.) Riker used an aggregation tool on the WesLex legal

research website to compile data regarding the employment discrimination cases Judge Jean Luc-

Picard had presided over. (R1. at 2.) The website’s aggregation tool indicated that Judge Picard

had found in favor of the employer 75% of the time. (R1. at 2.) Riker determined that based on

the law’s language, the interpretation of the courts favoring the employer, Judge Picard’s high

percentage of finding in favor of the employer, and Judge Picard’s well-known reputation within

the legal community for being tough on plaintiffs that Shirley’s case would be an uphill battle.

(R1. at 2.)

However, Riker also determined that if they were able to establish a pattern of gender

discrimination within Wall Street Bank, his case would be much easier to prove. Information

regarding other employees that had been passed over for promotions and those employees’

gender, years worked, and eligible promotions would help Riker establish the pattern of

discrimination he needed to shift the balances in his favor for Shirley’s case. (R1. at 3.)

On December 19, 2012, Riker sent Shirley an email where he explained:

The way the law is written and interpreted by courts gives more advantages to employers. In this district Judge Picard is the worst with these cases. When it comes to employment law cases, Judge Picard is very conservative. When examining evidence he views it in a light that is more favorable to employers. Not to mention that he is an old codger who hates greedy plaintiffs. We will have an uphill battle if he presides over our case.We need to start working now to gather certain information from current employees regarding any discrimination they may have experience. Here’s what I determined that I need…

2

(Exhibit A.)

Riker’s email then included a list of eight items (names, age, sex, etc.). (Exhibit A)

Riker closed the email by stating, “These would of course be the kinds of things that we would

ask your coworkers about in a deposition, with Wall Street Bank’s attorney present” and the

positive and motivational declarative, “Let’s get to work.” (Exhibit A)

The next day, Shirley altered the Riker’s email and forwarded much of the original

content so that it looked like a questionnaire. (R1. at 3.) It was Shirley’s idea to also include a

signature line at the bottom of the emails so that they looked more “official.” (R1. at 3.) Shirley

invited a group of her friends out to lunch and discussed her belief that Wall Street Bank had

established a pattern of gender discrimination. Shirley’s friends and coworkers agreed with her

assessment of Wall Street’s promotion practices and agreed at her directive to fill out the altered

email questionnaire, sign the document, and save the completed form as a PDF file and return it

to her as an attachment.

After Shirley obtained four of her complete questionnaires, she forwarded the

attachments to Riker and his law clerk along with the message, “I got the information from my

coworkers you asked for, there’s some juicy stuff in here!” (Exhibit C) Riker immediately

responded to Shirley via text stating,

“Oh wow, in a rush right now. In the middle of 3 day jury trial, plus holidays coming up,

may be a while before I can get to this. You may want to be sure they understand the legal

consequences of statements.” (R1. at 3.)

Riker then addressed Shirley’s actions in an email to his law clerk where he stated,

You can’t really stop them from doing anything because they are your boss. Don’t forget that the client calls the shots, even when they have no idea what they are doing…

3

Eventually, some client might ask you to break the rules… But under those circumstances, the rules are a shield for you. Don’t be afraid to do the right thing…

(Exhibit D.)

Shirley failed to follow up with her coworkers regarding the legal consequences of their

communications as Riker had instructed. (R1. at 3.) Due to Riker’s ongoing jury trial, he forgot

to follow up once again with Shirley about informing her coworkers of the legal consequences of

their communications. (R1. at 4.)

On January 9, 2013, Riker filed suit against Wall Street Bank on behalf of Monica

Shirley. (R1. at 4.) During the deposition of one of Shirley’s coworker, Ira Adams, Riker

attempted to use the coworker’s signed statement that Shirley had obtained in order to elicit

testimony from him. (R1. at 4.) The defense objected to the use of the signed statement and

stopped the deposition. (R1. at 4.) Defense counsel filed a Motion for Protective Order on the

grounds that the signed statement was the fruit of an ethical violation and must therefore be

stricken. (R1. at 4.) The defense’s argument was based on the assertion that Riker had violated

Rule 4.2 in obtaining the coworker’s signed statement. (R1. at 4.)

On June 27, 2013, the Northern District of Illiana held a hearing regarding the defense’s

Motion for Protective Order. The presiding judge denied the motion and forwarded the signed

statements to the Disciplinary Commission for further review. (R1. at 4.) Despite being unable

to provide any evidence that Riker’s research was false, the Disciplinary Commission questioned

Riker’s actions surrounding and stemming from the original email to Shirley and signed

statements Shirley obtained. (R1. at 4; R2. at 5.)

On August 11, 2013, the Illiana Board of Professional Responsibility Hearing Panel

(“Hearing Panel”) determined that Riker was in violation of both Rule 8.2, for making false

4

statements regarding a judicial officer; and Rule 4.2, for communicating with a represented

person. (R1. at 15.) Sanctions were ordered against Riker in the form of immediate suspension

from the practice of law for a period of 90 days. (R1. at 15.)

Riker filed a timely appeal of the decision of the Hearing Panel and on September 10,

2013, the Illiana Review Board (“Review Board”) reversed the Hearing Panel’s decision for

sanctions. (R2. at 1.) The Review Board found that Riker had not violated Rule 8.2 or 4.2 and

dismissed all charges. (R2. at 11.)

On October 1, 2013, the Illiana Professional Responsibility Disciplinary Commission

filed a timely petition of a writ of certiorari seeking de novo review of Riker’s alleged violation

of Rule 8.2 and Rule 4.2. (R3.)

SUMMARY OF THE ARGUMENT

Under the application of any standard available to determine whether William Riker’s

statements in a private email to his client Monica Shirley should be free from sanctions pursuant

to Rule 8.2, this Court should find that Riker’s contested speech was a protected form of

communication.

Courts have generally applied a subjective actual malice standard or an objective

reasonable attorney standard when analyzing contested critical speech. In application of either

an actual malice standard or a reasonable attorney standard, it is evident that Riker’s words were

written to Ms. Shirley with enough factual certainty and substantiated belief as to protect him

from sanctions. Because Riker made statements only following in-depth legal research, he acted

5

as any reasonable attorney would have in a similar situation and in light of the same factual

circumstances.

Further, any in-depth analysis of a First Amendment protection will yield that Riker’s

interest of speaking freely about the judiciary based on his conducted research, do not act so

much as to upset the balance of the proper administration of justice. A substantive review of

Riker’s statements indicate that because they were based on factual inquiry and reasonable

belief, there is no cause to safeguard the public from such discussion which can only bring about

positive change.

Turning to the second issue, Mr. Riker did not cause his client to communicate with a

represented person in violation of Rule 4.2.

First, as a matter of law, clients should not automatically be deemed “another” for the

purposes of Rule 4.2. This issue of first impression represents a chance for this Court to draw a

finite line where one is desperately needed. That line should be drawn to not automatically deem

clients as “another” under the Rule. Sister jurisdictions have been hesitant to deem clients

“another” under the rule and their wisdom in doing so should be repeated. Also, clients have the

explicit right to communicate with opposing parties and to be counseled regarding those

communications. To deem clients as “another” under the Rule would be to infringe the rights of

clients who are not simply lawyer’s agents but rather private citizens with their own protected

rights.

Second, assuming clients are “another” for the purposes of Rule 4.2, Mr. Riker did not

cause his client to communicate with a represented party and therefore overreach the boundaries

of Rule 4.2. This is because at no point did Mr. Riker demonstrate any intent to overreach and

cause the communication. The Hearing Panel -the only body to find any fault with Mr. Riker’s

6

actions-was itself overturned after relying on non-persuasive and off-point authority. These cases

describe situations where lawyers actively coached or encouraged the contact while Mr. Riker

did the opposite by preaching caution and patience. Further, after learning of his client’s deeds,

he in no way ratified the conduct but instead spoke against it.

STANDARD OF REVIEW

Determinations made by the Illiana Review Board are reviewed de novo before this

Court. (R3. at 1.)

7

ARGUMENT

I. WILLIAM T. RIKER’S CRITICISM OF JUDGE JEAN-LUC PICARD DID NOT VIOLATE ILLIANA’S RULE OF PROFESSIONAL CONDUCT 8.2

The Illiana Review Board correctly held that William T. Riker did not violate Illiana’s

Rule 8.2 of Professional Conduct where he criticized Judge Jean-Luc Picard in a private email to

his client Monica Shirley. In application of either choice of law, be it the malice standard or the

objective reasonable attorney standard, this Courts will find that Riker’s impugning statements of

a judicial officer were nonetheless made in such a manner as to obviate sanctions. Further,

Riker’s criticism fell within the shielded protection of a private email exchange between himself

and his client. Additionally, Riker’s First Amendment rights protect his ability to make

statements that are factually true and/or opinions.

Riker does not deny making statements in an email directed to Monica Shirley that were

critical in nature of the actions of Judge Jean-Luc Picard. However, Respondent asserts that his

statements fell along “the path of safety [that] likes in the opportunity to discuss freely supposed

grievances and proposed remedies” and therefore did not violate Illiana’s Rule 8.2 of

Professional Conduct. New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

Illiana’s Rule of Professional Conduct 8.2 provides:

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or Integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the Applicable provisions of the Code of Judicial Conduct.

8

A. In the application of either the actual malice standard or the objective reasonable attorney standard, Riker’s statements do not violate Rule 8.2 and therefore the Review Board was correct in reversing the Hearing Panel’s decision for sanctions

In determining if Riker’s statements to Shirley violated Illiana’s Rule 8.2, courts have

traditionally applied one of two standards. The first standard analyzes whether the questionable

statements were made with actual malice; the second standard requires the court to objectively

decide what a reasonable attorney would have done in the same or similar circumstances. Both

the Hearing Panel and the Review Board applied the reasonable attorney standard; however, the

United States Supreme Court has only used the malice standard initially set forth in New York

Times v. Sullivan.

1. If this court adopts the actual malice standard, Riker should not be subject to sanctions because the statements he made impugning Judge Picard were made out of the belief of their veracity

If this Court were to apply the actual malice standard, Riker’s comments would fail to

rise to the level of actual malice because he made statements to Shirley that he believed to be

true. The actual malice standard is the only standard to be applied by the United States Supreme

Court. Since its promulgation in Sullivan, the standard has been echoed and expanded in

application by the Supreme Court while the reasonable attorney standard has been largely

ignored.

The actual malice standard was first set forth in the watershed case New York Times v.

Sullivan. 376 U.S. 254, 270 (1964). In Sullivan, the Court stated that a public official could not

recover damages for defamation unless he had shown that the challenged expression contained a

false statement of fact made with actual malice. Id. at 280. Although the actual malice standard

is traditionally applied in defamation actions, the definition from Sullivan is nearly identical to

Illiana’s own language in Rule 8.2; explaining that a statement made with actual malice is one

9

made “with knowledge that it is false or with reckless disregard of whether it was false or not.”

Id. The objective actual malice standard is hailed by the courts as “strik[ing] a constitutionally

permissible balance between an attorney’s right to criticize the judiciary and the public’s interest

in preserving confidence in the judicial system.” Office of Disciplinary Counsel v. Gardner, 793

N.E.2d 425, 29 (Ohio 2003).

Although the Supreme Court has yet to apply the Sullivan actual malice standard in the

context of attorney discipline, multiple courts have reasoned that disciplining an attorney for

criticizing a judge is analogous to a defamation action by a public official. In re Green, 11 P.3d

1078 (Colo. 2000). As stated in Porter, a “restriction on an attorney’s right to criticize judged

hinders the public’s access to the class of people in the best position to comment on the

functioning of the judicial system.” 766 P.2d 958 (Okla. 1988). Due to the intrinsic similarities

in the claims, multiple courts have adopted the two-part subjective actual malice standard that

analyzes whether (1) the disciplining authority has proven that the statement was a false

statement of fact; and (2) assuming the statement is false, whether the attorney uttered the

statement with reckless disregard as to its truth. 11 P.3d 1078 (Colo. 2000).

Following Riker’s research of employment discrimination law and Judge Picard’s past

rulings, Riker determined that Shirley had an uphill battle in proceeding with her gender

discrimination case. None of Riker’s research has been proven to be a false statement of fact.

Rather, the Commission offered no evidence showing that Riker’s research was faulty in either

the Hearing Panel proceedings or the Review Board proceedings. Failing to even produce

evidence that Riker’s research is flawed indicates that the Commission has not met their burden

of proving that Riker’s research yielded false statements. Nonetheless, even if the Commission

had been able to submit evidence that Riker’s research was incorrect, he would still be protected

10

by the second part of the actual malice standard, which indicates that even if a statement is found

to be false, the attorney would have had to convey the statement with a reckless disregard to its

truth. Here, Riker informed Shirley that his statements were based on research, which indicates,

his reasonable belief in their truthfulness.

2. If this Court adopts the objective reasonable attorney standard, Riker should not be subject to sanctions because Riker had a reasonable factual basis for making the statements

The reasonable attorney standard, set forth in Yagman, queries “what the reasonable

attorney, considered in light of all his professional functions, would do in the same or similar

circumstances [and] focuses on whether the attorney had a reasonable factual basis for making

the statements, considering their nature and the context in which they were made.” 55 F.3d 1430

(1995). Further, and most applicable here, attorneys should be given some freedom to criticize

judges, and the inquiry shall focus on the reasonable factual basis the attorney had for making

the statements. Id. The court will also look at “their nature and the context in which they were

made.” Id.

The argument for the use of the reasonable attorney standard is found in the stark

differences between defamation claims, actions where the malice standard is usually applied, and

actions relating to the rules of professional ethics. “Ethical rules that prohibit false statements

impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant

or offensive criticism, but to preserve public confidence in the fairness and impartiality of our

system of justice.” Id. Whichever standard this court adopts, Riker’s statements stand firmly

grounded in researched truth and are absent of the malice or wanton disregard for the truth.

Further, Riker’s statements pass the standard of reckless disregard for the truth, and further

11

satisfy the higher bar of reasonable belief that the statements he made were truthful. Garrison v.

La., 379 U.S. 64, 74-5 (1964).

The Review Board chose to forego any discussion on whether the reasonable attorney

standard should apply, as they found all of Riker’s statements to be protected by the First

Amendment. We agree with the Review Board that all of Riker’s statements will be protected by

the First Amendment; however, should this court apply a reasonable attorney standard, we find

that his statements, absent the extreme hyperbolic “codger” reference, are also squarely protected

by the actions of a reasonable attorney.

In the Panel Hearing’s application of the reasonable attorney standard, they noted that

Riker’s statements were “exactly the types of statements that the State has a strong interest in

preventing from being made.” The Panel Hearing interpreted Riker’s statement about Judge

Picard to as stating that Judge Picard was in some way “prejudiced.” We find the Hearing Panel

was erroneous in their assessment of Riker’s statements. In the email to Shirley, Riker stated

that Judge Picard was “very conservative” and that he views the evidence “in a light that is more

favorable to employers.” Riker’s statements to Shirley were made after he had performed his

due diligence in thoroughly researching recent gender discrimination cases as well as Judge

Picard’s employment discrimination case history. Riker discovered, by use of a legal research

aggregation tool, that Judge Picard sided with the employer in 75% of the cases he had decided.

When Riker stated that Judge Picard was “conservative” it was his estimation based on the facts

he had researched in the performance of his job.

Additionally, Riker’s statement that the evidence tended to be viewed in the light more

favorable to the employer, was not solely a statement about Judge Picard, but commentary on the

interpretation of the law at large. In his research, Riker stated that he also observed that the law

12

tended to be written and interpreted by the courts in a light more favorable to the employer. This

was not a targeted attack on Judge Picard’s predisposition to interpreting the law, but rather an

observation on the law at large.

William Riker’s research has yet to be contested or found to be factually inaccurate by

either the Hearing Panel or the Review Board. Further, even if Riker’s statements were found to

be false, he still shared them with Shirley after hours of research and based on the belief that they

were true. When Riker shared information with his client following his WesLex research he

acted as only a reasonable attorney would. He gave factual information to his client to prepare

her for the emotional and personal battle that would be involved in a case such as gender

discrimination. Riker acted out of the care and concern for his client and chose to disclose

information with her in a reasonable manner.

B. Riker’s email was a private communication not made public and therefore not subject to the same scrutiny as public criticism

Riker was not able to violate Illiana’s Rule 8.2 because the contested statements were

made in a private email, as opposed to a public forum. The distinguishable difference speaks to

the purpose behind the enforcement of Rule 8.2. Both the Hearing Panel and Review Board

acknowledge the long-standing need for an open forum that allows for the free exchange of

ideas, even those that are unpopular and critical in nature, but admonishes those statements made

that can upset the integrity of the judiciary. In light of these two competing interests, Riker’s

private statements contained in an email between attorney and client strike the perfect balance of

providing the necessary level of criticism to lead the way towards positive change, while still

preserving the administration of justice.

The court in Isaac held that an attorney’s comments about the court that were made in a

private conversation were not subject to discipline because they were made outside the confines

13

of the court. 76 A.D.3d 48, 51 (N.T. 2010). The need for public censure to protect the esteem of

the court did not outweigh the attorney’s right to voice his opinion in a private forum. Id. The

Sawyer court found that the private statements made by an attorney did not have the same ability

to obstruct justice as those uttered publicly and for mass dissemination. 360 U.S. 622 (1959).

Here, Riker’s contested statements were made in a private email that he sent to his client,

Monica Shirley. The statements that were interpreted as critical of Judge Picard were intended to

be shared only with Shirley for her knowledge. Riker did not share the statements with her in a

public space or in the courthouse, where it could have been overheard by other administrators of

justice.

While it might be argued that Riker’s words reached more people than just Shirley when

she forwarded the email to her coworkers, this was not Riker’s intent. This is not an example of

an attorney attempting to spread public condemnation of the judiciary or even a dissemination of

critical pamphlets embarrassing the court. This was a single email passed confidentially between

attorney and client that discussed his recent research.

C. Riker’s statements are protected by the United States Constitution’s First Amendment in either a balanced interest standard or a substantive inquiry of the facts and opinions

The necessary evil of free speech is that in all likelihood, the citizens of a democracy will

be confronted with less than desirable words. There will be phrases that don’t fall easy on a

listener’s ears, missteps in remarks, and offenses of good taste. However, when “that erroneous

statement is inevitable in free debate… it must be protected if the freedoms of expression are to

have the ‘breathing space’ they ‘need to survive.’” 376 U.S. 254, 270 (1964). Despite the need

for breathing space, the courts recognize that there is a line to be drawn between merely bad

taste, and offensive speech that provides more harm than good. Id.

14

“It is a prized American privilege to speak one’s mind, although not always with perfect good

taste.” Id. Where speech has been made that accused of offending the standards of good taste

and propriety, a reconciliation must be made to determine if the contested speech can be cradled

under the safety of the large and protective arm of the First Amendment. Id. at 285. Courts have

either applied a form of a balancing test that weighs the competing interests at stake or a more in-

depth analysis of the substantive material of the contested speech. Berry v. Schmitt, 688 F.3d

290 (6th Cir. 2012).

In application of either the balancing test or the substantive inquiry, this Court should

uphold First Amendment protection of Riker’s statements because his words did not hamper the

fair administration of justice, and because they were either facts or opinions based on factual

information.

1. Balancing the Competing Interests at Stake

The first standard proffered by the courts to determine whether speech should be protected by the

First Amendment, is the balancing of competing interests at stake. This standard was expressed

in the Supreme Court of Indiana case, In re Wilkins. 777 N.E.2d 714, 717 (2002). The court

stated, “It is our belief that a generalized test cannot be drawn. Each prohibition, circumscribed

by the factual setting present in a particular case, must be examined in light of the affected State

interest and measured against the limitation placed on the freedom of expression.” Id.

The state’s interest in protecting the fair administration of justice is founded on the need

for the public’s steadfast confidence in its judiciary. Gardner, 793 N.E.2d 425, 419 (Ohio 2003).

When statements are so pernicious as to erode away at the judiciary’s reputed character, then

speech must be questioned as to whether it deserves the protection of the First Amendment.

15

Because attorneys are in a unique position to yank back the proverbial curtain that shields our

great and powerful judges, then their words become subject to greater scrutiny. Polk v. State Bar

of Texas, 374 F.Supp. 784, 788 (1974). Further, a greater premium is placed on the evaluation

of the attorney’s truthful speech. Gardner, 793, N.E.2d 425, 429 (Ohio 2003). “An attorney’s

speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of

justice” based on the “integral role that attorneys play in the judicial system.” Id.

The opposing interest, however, is the limitation that can be placed on the freedom of

expression to protect the judiciary from critical statements. Sullivan, 376 U.S. 254, 270 (1964).

As summarized in Sullivan, “Where judicial officers are involved, this Court has held that

concern for the dignity and reputation of the courts does not justify the punishment as criminal

contempt of criticism of the judge or his decision.” Id. The Sullivan court further discussed that

effective critical speech should not lose its constitutional protection merely because it is

achieving the job it set out to do; challenge the status quo and shine the inspecting light on

elected officials or judges. Id.

In the Wilkins case, the court held that the attorney, Wilkins, should be suspended for

thirty days based on statements he made in a brief questioning the reasoning behind the Indiana

Court of Appeals’ recent decisions. 777 N.E.2d 714 (2002). For their reasoning behind the

attorney’s sanctions, the court looked to the attorney’s false claims that were the basis of his

contested speech. Id. They held, “In this case, the state’s interest in preserving the public’s

confidence in the judicial system and the overall administration of justice far outweighed any

need for the respondent to air his unsubstantiated concerns in an improper forum for such

statements.” Id. at 718. The court also discussed Wilkins’s lack of evidence and his

“unwarranted” and inaccurate statements used in a document filed before the appellate courts.

16

Id. The court noted, “arguments on appeal must be supported by cogent reasoning, citations to

authorities, statutes or the record.” Id.

In the case at bar, Riker’s statements pass the initial standard of substantiation set forth in

Wilkins. Even absent Riker’s showing truthfulness of his statements, the base standard of

“substantiation” is met by Riker’s WesLex research that revealed that Judge Picard found in

favor of the defendant in 75% of employment discrimination cases. Both Wilkins and Sullivan

indicate that the interest of the state is best protected from false claims; but where the contested

information is substantiated, “the interest of the public outweighs the interest of… any other

individual. The protection of the public requires not merely discussion, but information.”

(Sullivan quoting Bridges pg. 8.) Here, Riker had investigated the information and was

providing it to his client in a private email, as opposed to a brief filed in the court. Further, Riker

provided the information for the purpose of informing his client so that she fully understood the

legal battle that was before her. This was not an exercise in mockery or an attempt at mere

discussion, but to provide the very “information” called for in Sullivan.

2. Substantive Inquiries of Fact and Opinion

The touchstone for the most actionable speech has been routinely maintained as “falsity.”

Standing Comm. On Discipline of the United States Dist. Court v. Yagman, 55 F.3d at 1437

(1955). Policy reasons indicate that speech critical in nature loses its virtuous ability to spark

improvement, the defended basis for critical speech, when the phrases are comprised of falsity;

as false statements are not able to expose the problems we seek to correct with our judiciary and

serve only to erode the public’s confidence in our legal system. Id.

A substantive inquiry into the contested statements, can demand breaking apart the

phrases to determine which parts were fact and which elements were opinion. However, as the

17

Topp court held, “the important consideration... is not whether the particular statement fits into

one category or another, but whether the particular article provided sufficient information upon

which the reader could make an independent judgment for himself.” Idaho State Bar v. Topp,

925 P.2d 1113, 1115 (Idaho 1996). The line between fact and opinion is easily blurred in these

in-depth analyses. A fact is a factual piece of information; however an opinion might be based

on factual information, tainting it as something more than mere opinionated conjecture. Id.

In the case before us, Riker provided Shirley with information in a private email which

explained that he had performed research which led him to believe that Judge Riker, among other

courts, tended to view the evidence in the light most favorable to the employers. We agree with

the Review Board that this information was conveyed as either factual statements, or opinion

statements based on facts.

Statements of opinion are still held to a higher standard and cannot be merely waved off

with the broadly encompassing “freedom of expression” protection. Opinion statements are

generally characterized as those based on assumed or expressly stated facts; statements based on

implied or undisclosed facts; or statements of rhetorical hyperbole. Yagman, 55 F.3d 1430

(1995).

An opinion may be the basis for sanctions only if it could be reasonably understood “as

declaring or implying actual facts capable of being proved true or false.” Id. Statements based

on fully disclosed facts, the first variety of opinion, can be punished only if the stated facts are

found to be false and demeaning. Id. The reasoning behind this is when facts underlying a

statement of opinion are disclosed, the reader is able to understand that they are receiving the

author’s interpretation of the facts presented and they are able to make their own independent

evaluation of the facts. Id. However, where an opinion is expressed and facts are not disclosed,

18

then the reader or listener is unable to independently evaluate the information to determine if it is

true or false. Id. This would make such statements actionable, even if they fall within the

speaker or writer’s opinion. Id.

Where Riker informed Shirley of Judge Picard’s research-based statistical information,

he provided her with enough information for Shirley to objectively verify the statements.

Riker’s research indicated that Judge Picard sided with employers 75% of the time, which would

easily translate into a vast majority; or could be interpreted for the ease of communication, as a

“conservative” history. Riker also informed Shirley that the way the law was written, in and of

itself, gave more advantages to employers. Riker’s statements allowed for Shirley to verify this

information by viewing the language of the law and recent rulings herself, while still explaining

the basis for his opinion.

The only other statements of opinion that are exempt from sanctions are those that are

determined to be “rhetorical hyperbole” and do not imply criminal conduct. Gardner, 793

N.E.2d 425, 429 (Ohio 2003). Statements of rhetorical hyperbole require no additional facts or

information because they are intended to be automatically understood by the reader to be

exaggerated figurative claims. Id. Rhetorical hyperbole is recognized as opinion statements that

cannot be reasonably interpreted as stating facts. Id.

In Riker’s final statement about Judge Picard, he describes him as “an old codger who

hates greedy plaintiffs.” We agree with the Review Board’s determination that this statement is

the exact sort of rhetorical hyperbole referred to in both the Yagman and Gardner courts.

Riker’s statement does not imply any criminal conduct or even any misconduct at all. While

they are a discussion on Riker’s opinion of Judge Picard’s temperament, his use of the words

“codger” and “greedy” indicate a bombastic playfulness with language. A reasonable reader

19

would not interpret the word “codger” as a statement of actual fact. It is a word absent of

intentional literal meaning and was used to provide a final flourish of exaggeration for Riker to

convey how difficult Shirley’s case would be.

Under any and all lenses available to the court to view and analyze Riker’s statements

regarding Judge Picard, his statements should be free punishment of sanctions. Riker offered

Shirley a blend of well-research, undisputed factual information, opinions based on these facts,

and a final hyperbolic opinion.

II. MR. RIKER DID NOT CAUSE HIS CLIENT MONICA SHIRLEY TO COMMUNICATE WITH A REPRESENTED PERSON IN VIOLATION OF ILLIANA RULE OF PROFESSIONAL CONDUCT 4.2

The State of Illiana regulates and guides attorneys through its Rules of Professional

Conduct. Specifically, Rule 4.2 is promulgated as follows:

During the course of the representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Illiana Rules of Prof’l Conduct Rule 4.2.

The Rule is followed by these subsequent relevant comments, among others:

Comment 1 - The purpose of this rule is to (1) prevent overreaching by adverse counsel; (2) safegaurd the lawyer-client relationship from interference by adverse councel; (3) reduce the likelihood that clients will disclose privileged or other information that might harm their interests; and (4) safeguard clients from making improvident settlements. Comment 2 - The Rule applies even though the represented person initiates or consents to the communication.Comment 3 - Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.

Illiana Rules of Prof’l Conduct Rule 4.2.

20

Neither party contests that the employees contacted by Shirley were not “represented”

within the purposes of the Rule. (R1. at 10.) However, the scope of the Rule falls short as

applied to Mr. Riker, for (a) a client should not automatically count as “another” for the purposes

of the Rule, and (b) assuming a client may count as “another,” Mr. Riker’s conduct did not

overreach beyond zealous representation. These two points will be discussed in turn.

A. A client should not count as “another” for the purposes of Rule 4.2 as the “clear standard” sought by the Review Panel should not automatically deem clients to be “another” under the Rule

The Hearing Panel correctly recognized that whether a lawyer may instruct their client to

communicate with an opposing party is an “issue of first impression” in Illiana. (R1. at 10.) The

Review Board wisely sought a “clearer rule whereby attorneys will have a tangible standard to

govern their conduct.” (R2. at 8.) The preferable nature of a bright-line rule implores this Court

to definitely draw a standard as to what constitutes “another” under the Rule. Further, such a

line should be drawn not to include clients within its scope.

First, as a general matter, bright-line rules give much needed clarity to practicing lawyers.

Attorneys practice law under the ever-present Rules of Professional Conduct. Of course, the

utmost deference and respect must be and is given to these Rules. However, a firm grasp of what

the rules explicitly require and conversely prohibit is necessary for any well-meaning lawyer to

stay within the rules’ confines. Definite, explicit lines allow attorneys to remain within these

lines by instructing lawyers precisely what is forbidden and what is notwell.

Other states have recognized the “essential” nature of bright-line rules. San Francisco

Unified Sch. Dist. ex. rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1231 (2013).

Specifically, “as a practical matter, an attorney must be able to determine beforehand whether

particular conduct is permissible; otherwise an attorney would be uncertain whether the rules had

21

been violated until . . . he or she is disqualified.” San Francisco Unified Sch. Dist. ex. rel.

Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1231 (2013). There the court

recognized that an attorney’s ability to abide by the Rules heavily relies on the attorney knowing

what the rules specifically prohibit. Id. Though the court did not explicitly state so, it is implicit

that the alternative would limit even the most well-intentioned lawyer to proceeding via an

educated guess of whether his conduct was within the Rules. Put another way, abidance to the

law directly relies on the clarity of the law. This Court has a chance to provide precision to an

important area of law and should seize the opportunity.

Second, the conspicuous line this Court draws should not declare clients to automatically

be “another” under Rule 4.2. This is because the dividing line between overreaching and zealous

representation should not be projected so far as to hamper an attorney’s ability to effectively and

enthusiastically represent his client, nor should it simultaneously hamper clients’ rights.

The same court that recognized the wisdom in promulgating straightforward standards

simultaneously cautioned that “a rule whose violation could result in disqualification and

possible disciplinary action should be narrowly construed when it impinges upon a lawyer’s duty

of zealous representation.” San Francisco Unified Sch. Dist. ex. rel. Contreras v. First Student,

Inc., 213 Cal. App. 4th 1212, 1231 (2013). The initial 90-day suspension of Mr. Riker, despite

the Review Board’s ensuing appropriate reversal, illustrates the exposure well-meaning attorneys

face when these rules are unnecessarily broadened A clarification by this Court narrowly

construing Rule 4.2 would appropriately forbid the side-stepping the rule seeks to avoid yet

would not hamper zealous representation nor impede clients’ rights.

The American Bar Association (“ABA”) recently spoke to the scope of Rule 4.2. ABA

Comm. on Ethics and Prof’l Responsibility, Formal Opinion 11-461. The ABA recognized

22

citizens’ free speech rights, definitively stating, “parties to a legal matter have the right to

communicate directly with each other.” Id. Of course, the ABA also recognized the effect of the

rule to prevent side-stepping by lawyers, acknowledging that counsel may not “use an

intermediary...to communicate directly with a represented person.” Id. However, in

acknowledging the necessary “no contact” effect of the rule the Opinion still proclaimed that at

times it is “desirable for parties to a litigation...to communicate directly even though they are

represented by counsel.” Id. These represented parties are nonetheless still entitled to counsel

regarding such communication, as “prohibiting such advice would unduly restrict the client’s

autonomy, the client’s interest in obtaining important legal advice, and the client’s ability to

communicate fully with the lawyer.” Id. In other words, clients have positive rights to

communicate with one another and also possess the right to counsel regarding such

conversations. A broad interpretation of Rule 4.2 would therefore simultaneously impede

clients’ rights and deter zealous representation. Such an interpretation thus cannot be in the State

of Illiana’s best interest.

Comment 3 to Rule 4.2 also supports the conclusion that clients are not “another” under

the rule. The comment reaffirms the notion that opposing parties to a lawsuit may communicate

directly with each other and also states that counsel is not barred from advising clients to

conversations of which the client has a legal right to engage. Illiana Rules of Prof’l Conduct R.

4.2 cmt. 3. Essentially, the Code’s authors seem to be reminding readers that clients are not

simply attorney’s agents but rather are independent persons with their own protected rights and

privileges. To classify client’s as “others” would be a failure to heed this reminder and would

ignore the special relationship clients maintain with their attorneys.

Sister jurisdictions have also spoken to the scope of the “no contact” rule. California

Comm. on Pro’l Resp. and Conduct Formal Op. 1993-131 (1993). For instance, the State Bar of

23

California Standing Committee on Professional Responsibility and Conduct addressed the scope

of the rule and the “line to be drawn.” Id. The committee recognized clients’ rights and was

cautious to advocate for any interpretation of the Rule that would “discourage[e] direct

communication between the parties themselves.” Id. While not binding upon this Court, the

wisdom in the committee’s hesitation to restrict clients’ rights speaks to the caution that must be

observed when a rule concerning lawyers’ conduct may be read so broadly as to constrict the

rights of the clients who employ these same attorneys.

New York has also contemplated the issue. Ass’n of the Bar of City of New York

Comm. on Professional and Judicial Ethics Formal Op. 2002-3 (2002). The jurisdiction has

advised to not automatically deem clients “another” under the “no contact rule.” Id.

Specifically, the Association of the Bar of the City of New York has declared that an “overly

broad construction of [the no contact rule] is at odds with modern authority.” Id. Further, a

“strong public policy in favor of resolving disputes . . . is undermined by an overly expansive

interpretation [of the rule].” Id. Though also not binding upon this Court, sister jurisdictions’

hesitation to automatically deem clients “another” under the Rule suggests a similar restraint

should be demonstrated here.

Because a broad interpretation of the Rule would affect not only attorneys but the clients

they represent, the line drawn by this Court should respect the free speech rights of clients who

the vast majority of which have never sought admission to the State Bar nor sworn adherence to

the Rules of Professional Conduct.

Thus, to simply deem all clients automatically “another” for the purposes of Rule 4.2

would be to disregard the aforementioned rights and entitlements of clients as well as the

reasoned conclusions of sister jurisdictions. Instead, “another” as it is written in Rule 4.2 seems

24

to implicate situations where an overzealous lawyer side-steps the “no contact” rule by

affirmatively acting through a person with agent-like capacity rather than a client with the

recognized and protected right to communicate with adverse parties.

B. Assuming a client counts as “another” for the purposes of Rule 4.2, the Review Panel correctly determined Mr. Riker did not overreach as the client orchestrated the communication which Mr. Riker did not later ratify

The Review Board correctly held that, even if the client Monica Shirley is “another”

under the rule, Mr. Riker did not overreach and “cause” the communication with the represented

employees. (R2. at 10.) First, Riker’s actions did not show any intent to side-step Rule 4.2.

Second, Mr. Riker did not ratify the his client’s actions upon becoming aware of them.

1. Mr. Riker demonstrated no intent to side-step the “no contact” rule as the communication was orchestrated by the client and not Mr. Riker

The key determination in this issue revolves around whether Mr. Riker demonstrated any

intent or conduct that “caused” the client to communicate with represented parties. Though the

Rule does not define the term, “cause” for purposes of the Rule can mean when counsel “knew

or reasonably should have known that there was a substantial risk” of contact with a represented

party. Bd. of Prof’l Resp. v. Melchior, 269 P.3d 1088 (Wyo. 2012). To be at fault, there must be

the aforementioned intent to “orchestrat[e]” the forbidden contact. San Francisco Unified Sch.

Dist. ex. rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1233 (2013).

Any careful review of the circumstances leads to the conclusion that Mr. Riker did not

“cause” the communication within any reasonable definition of the term. Mr. Riker did not

know nor reasonably should have known that she would contact her coworkers seeking this

information as she gave no indication towards her future actions. Further, nothing indicated she

would doctor the information into the form of a survey. Although he made his client aware of

the information that would eventually be needed as any reasonable attorney would, at a

25

minimum he had no reason to believe his client would transform his work into a survey, add a

signature line at the bottom, and send this document to represented parties. Taken together, these

actions show a careful coordination by the client to contact represented parties. No action by Mr.

Riker shows any intent to side-step the Rule.

Mr. Riker’s actions -or more accurately inaction- are analogous to the case of San

Francisco Unified School District ex re. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212

(2013). In that case, a client communicated with represented coworkers against the knowledge

and consent of either side’s counsel. Id. The court held the attorney was not in violation of any

ethical rule as the client was not working at the “behest of counsel.” Id. Similarly here, Ms.

Shirley initiated the conversation herself and not on the “behest” of Mr. Riker. Though Mr. Riker

told his client he would require demographic information from the coworkers, the client and not

Mr. Riker took the action of transforming the information into a survey. Further, the client and

not Mr. Riker sent the email to the represented coworkers. This case, unlike any other cited by

the Hearing Panel, is therefore the most analogous to the situation at hand. This Court should

follow precedent and not fault Mr. Riker for his client’s actions. Mr. Riker’s actions, like those

in the aforementioned case, were passive. The orchestration was conducted by the client and Mr.

Riker should not be held at fault.

Through the history of this case, the only body to find fault with Mr. Riker’s action was

the preliminary Hearing Panel. (R1. at 15.) Seeking justification for the suspension of Mr.

Riker’s license, the Panel recognized the “lack of authority” on this issue and without citation or

explanation sought “guidance from civil litigation cases where courts must determine the

existence of ethical violations.” (R1. at 12.) Rather than focus on Mr. Riker’s actions to

determine whether Rule 4.2 was violated, the Hearing Panel instead used these inconsistent

26

situations to find fault in his actions. Though perhaps well-intentioned, the analogies the

Hearing Panel originally drew were thin at best and not apt for the case at hand. The cases the

Hearing Panel inappropriately relied on provide a shaky foundation upon which to build a case

against Mr. Riker and are easily distinguished.

The Hearing Panel cited Holdren v. General Motors Corp. (R1. at 12.) In that case, a

lawyer’s client suggested that they -the client- could obtain affidavits from represented

coworkers. Holdren v. Gen. Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998). The lawyer

instructed the client on how to draft an affidavit and even went so far as to attempt to educate the

client on the admissibility of out-of-court statements. Id. No similar course was followed here.

Rather, unlike the attorney in Holdren, after Monica Shirley suggested that Mr. Riker meet with

Ms. Shirley’s boss, Mr. Riker immediately paraphrased Rule 4.2 to his client advising them he

could not talk to a represented party. Mr. Riker only advised Ms. Shirley of her right to speak

with her boss after she directly questioned Mr. Riker whether she could do so. In other words,

unlike in Holdren where the lawyer took affirmative steps instructing the client about the law

and legal techniques, Mr. Riker only gave honest answers to a concerned client and in no way

orchestrated the contact.

The Panel also incorrectly relied on In re Pyle. (R1. at 11.) In that case, a lawyer drafted

two affidavits to be delivered by the client to the opposing party. In re Pyle, 91 P.3d 1222 (Kan.

2004). Here, Mr. Riker did not draft the final document sent by his client to other represented

parties. Instead, Mr. Riker merely told Ms. Shirley what type of biographical information would

later be needed from her coworkers. Unlike In re Pyle where the lawyer drafted the document,

here the client constructed the email by doctoring the information and adding a signature line to

27

promote the document’s veracity. This shows another case the Panel relied on to be

distinguishable and unable to justify the initial decision against Mr. Riker.

The Panel further relied on In re Marietta. (R1. at 11.) In that case, the attorney

prepared a release of liability to be signed by the opposing party and supplied it to his client. In

re Marietta, 569 P.2d 921 (Kan. 1977). The Kansas Supreme Court held the lawyer at fault as

the attorney knew of the client’s intention and effectively allowed the client’s actions as a way to

circumvent the “no contact” rule. Id. Here, unlike In re Marietta, the client acted secretly by

doctoring and sending the email. Mr. Riker’s unawareness toward his client’s actions thus show

no intent to “cause” illicit contact. This further demonstrates the Panel’s troubling reliance on

distinguishable cases was not well founded.

Finally, this situation is unlike the non-client cases of In re Ostisis, Gidatex, and

Bratcher. In each of those cases counsel acted through an agent who was not their client. In re

Ositis, 40 P.3d 500 (Ore. 2002); Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F.Supp.2d 119

(1999); Bratcher v. Ky. Bar Ass'n, 290 S.W.3d 648 (Ky. 2009). These cases do not reflect the

situation at hand where a client orchestrated the nefarious contact to further their own cause.

Instead, they provide examples of counsel employing others to accomplish various tasks and are

therefore mostly irrelevant. The Panel’s reliance on these non-similar cases is misplaced and

underscores the Review Board’s wisdom in overturning the initial decision.

Overall, the Panel’s troubling reliance on off-point and irrelevant cases betrays any

assertion that the suspension of Mr. Riker’s license was justified. In short, Mr. Riker’s actions in

no way illustrated an intent to have his client side-step the Rule 4.2.

28

2. Mr. Riker did not ratify his client’s actions after learning of the forbidden conduct

Finally, the Commission makes the argument that, even though any attempt to side-step

the “no contact” rule was made by the client and not by Mr. Riker, he nevertheless should be

held liable for allegedly ratifying his client’s actions. Ratification means “the confirmation of a

previous act done either by the party himself or by another.” In re Anonymous, 819 N.E.2d 376

at 379 (Ind. 2004). Such ratification, however, did not take place.

The ratification theory is found in the case of In re Anonymous, 819 N.E.2d 376 (Ind.

2004). In that case, a lawyer was aware of his client’s nefarious attempt to have a represented

party sign an affidavit without counsel. Id. The Supreme Court of Indiana held that the lawyer

was still liable as the attorney “ratified” the contact by being aware of his client’s intent yet

failing to intervene. Id. Essentially, the court found the attorney’s “active participation” after

learning of the contact akin to ratification of the contact and therefore an overreach beyond

zealous representation. Id.

Here, Mr. Riker did not approve or endorse any improper contact made by his client.

Instead, Mr. Riker was only made aware of the emails after the information was obtained. As

Mr. Riker was zealously conducting a three-day jury trial for another client, he told his client it

“may be a while before I can get to this” and that Ms. Shirley should “be sure they understand

the legal consequences” of the document. Unlike the attorney in In re Anonymous, rather than

acceptance his client’s actions or the information procured, Mr. Riker instead told his client that

the coworkers should understand the effect that such answers may have. This suggests that,

instead of trying to circumvent having to contact other parties through counsel, Mr. Riker

through this advice attempted to send the parties toward consultation with council. This is hardly

analogous to a ratification of Ms. Shirley’s actions but is closer to a rejection of her conduct.

29

Further, the Court in Anonymous stated that if counsel “simply received the [information]

obtained by a client without suggesting, directly or indirectly, any contact between the two, no

violation would have occurred.” 819 N.E.2d at 379. This is precisely what has occurred here.

Therefore, it seems even the court that suggested the ratification theory would agree it cannot be

employed here.

Overall, the Review Board’s astute overturning of the initial decision must stand as Mr.

Riker in no way caused his client to communicate with represented parties in violation of Rule

4.2

CONCLUSION

WHEREFORE, for the reasons stated above, respondents respectfully request this Court

AFFIRM the decision of the Illiana Review Board.

Respectfully submitted,

Counsel for Respondent

Team 5

January 17, 2014

30