In re Sitton

• Decision Date: 22 January 2021
• Docket Number: No. M2020-00401-SC-BAR-BP,M2020-00401-SC-BAR-BP
• Parties: IN RE: Winston Bradshaw SITTON, BPR#018440
• Court: Tennessee Supreme Court

618 S.W.3d 288

IN RE: Winston Bradshaw SITTON, BPR#018440

No. M2020-00401-SC-BAR-BP

Supreme Court of Tennessee.

Assigned on Briefs May 28, 2020

FILED January 22, 2021

Holly Kirby, J.

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook "friend" involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted "to kill" her ex-boyfriend, she should "lure" him into her home, "claim" he broke in with intent to do her harm, and "claim" she feared for her life. The attorney emphasized in his post that his advice was given "as a lawyer," and if she was "remotely serious," she should "keep mum" and delete the entire comment thread because premeditation could be used against her "at trial." In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney's conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney's advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer's role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel's judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of a series of social media posts by the respondent attorney, Winston Bradshaw Sitton. Mr. Sitton has been licensed to practice law in Tennessee since 1997.¹

Mr. Sitton maintained a Facebook page. His Facebook profile identified him as a lawyer.

For roughly a year, Mr. Sitton was a "Facebook friend" of Lauren Houston but evidently had not met her in person. Around December 2017, Ms. Houston was in the midst of a tumultuous break-up with Jason Henderson, the father of her child. Through his Facebook connection with Ms. Houston, Mr. Sitton became aware of allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection.

Against that backdrop, Ms. Houston wrote the following post 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?" The post was not directed to anyone specifically but rather was aimed at Ms. Houston's Facebook audience.

Responding to Ms. Houston's post, Mr. Sitton commented:

I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby's daddy, you will kill your ex _ your son's father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

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." In response, Mr. Sitton posted further 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.

Presciently, another Facebook user posted: "He's likely already seen th[is] thread!"

Consistent with Mr. Sitton's advice, Ms. Houston deleted her Facebook post. This had the effect of deleting all of the comments to her Facebook post, including her exchange with Mr. Sitton.

Sure enough, Mr. Henderson soon became aware of the Facebook exchange between Ms. Houston and Mr. Sitton. He brought screenshots of Ms. Houston's public Facebook post and the comments, including those by Mr. Sitton, to the attention of Shelby County District Attorney General Amy Weirich. General Weirich in turn passed the screenshots along to Tennessee's Board of Professional Responsibility ("Board").

The Board investigated the matter and received Mr. Sitton's explanation. In August 2018, it filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct² 8.4(a)–(d)³ by "counsel[ing] Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction."

Mr. Sitton admitted most of the basic facts alleged by the Board in its petition. He contended, however, that his Facebook comments were taken out of context. Mr. Sitton argued his comments could not be considered as counseling Ms. Houston on how to get away with criminal conduct and denied he had violated the Rules of Professional Conduct.⁴ The hearing on the Board's petition was scheduled for November 8, 2019.

In advance of the hearing, Mr. Sitton filed a motion in limine to exclude the Facebook posts from evidence. Immediately before the hearing began, the hearing panel denied the motion on the basis that evidentiary objections were more appropriately raised in the course of the hearing. During the hearing, the Facebook posts were offered into evidence. Mr. Sitton raised no objection to their admission. Consequently, the hearing panel admitted the Facebook posts into evidence.

The only testimony at the hearing was that of Mr. Sitton. The record does not include a transcript of his testimony, only the hearing panel's description and findings based on his testimony.⁵ In his brief to this Court, Mr. Sitton does not dispute the hearing panel's description of his testimony; rather, he disputes its inferences and conclusions.

At the time of the hearing, Mr. Sitton had not met Ms. Houston in person. Nevertheless, in his testimony, he "was able to describe her life, including her child, medical conditions, her [alleged] illegal drug use, her problems with her son's father, and other parts of her life in great detail."⁶ He said he was aware of Ms. Houston's allegations that Mr. Henderson engaged in abuse and harassment and violated their child custody arrangements. Mr. Sitton understood Ms. Houston had sought orders of protection against Mr. Henderson and had brought his actions to the attention of law enforcement. At the time of their Facebook exchange, Mr. Sitton believed Mr. Henderson had recently broken into Ms. Houston's car and a judge had advised her to get a gun for personal protection. Mr. Sitton described Ms. Houston as a "troubled woman."

Mr. Sitton testified he was concerned Ms. Houston would shoot and kill Mr. Henderson and find herself in legal trouble. He acknowledged that he identified himself as a lawyer in his Facebook posts and intended to give Ms. Houston legal advice and information. He noted Ms. Houston engaged with him on Facebook about his legal advice, and he felt she "appreciated that he was helping her understand the laws of the State of Tennessee."

Mr. Sitton claimed his only intent in posting the Facebook comments was to convince Ms. Houston not to carry a gun in her car. He maintained that his Facebook posts about using the protection of the "castle doctrine" to lure Mr. Henderson into Ms. Houston's home to kill him were "sarcasm" or "dark humor."

After hearing the testimony and reviewing the Facebook posts, the hearing panel observed that Mr. Sitton felt a personal connection with Ms. Houston and empathized with her situation. It believed he "wanted to help her."

The hearing panel, however, found not credible Mr. Sitton's assertion that he intended only to dissuade Ms. Houston from carrying a gun in her car. The panel recounted Mr. Sitton's advice to Ms. Houston "on the escalating use of force—beginning with the advice not to carry a gun in [her] car, but Taser o[r] tear gas would be ok." If Ms. Houston felt she needed more force, Mr. Sitton counseled, "then a shotgun loaded with rock salt, followed by bird shot." The hearing panel said Mr. Sitton's next remarks to Ms. Houston "included his legal advice ... about how to plan an effective defense to murder, if she came to need lethal force." Referencing Mr. Sitton's comments on the "castle doctrine," the hearing panel emphasized that he explicitly told Ms. Houston that "if she wanted ‘to kill him,’ then the ‘far safer basis for use of deadly force’ would be to ‘lure him into your house and claim that he broke in with the intent to do you bodily harm.’ "

The hearing panel found unpersuasive Mr. Sitton's assertion that his "castle doctrine" comments were "sarcasm" or "dark humor," noting that this characterization was contradicted by his own testimony and Ms. Houston's posts. The hearing panel found instead that Mr. Sitton intended to give Ms. Houston legal advice about a legally "safer basis for use of deadly force." Pointing out that the Facebook comments were made in a "publicly posted conversation," the hearing panel found that "a reasonable person reading these comments certainly would...