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Sanctions possible, after confidentiality of trial lawyers' Web forum is breached

Brian F. Labovick was shocked to receive a letter from Palm Beach, Fla., Circuit Judge Diana Lewis, saying that she'd received a copy of a critical note about her that the Jupiter attorney had posted on a confidential Internet forum.

In the letter, Lewis -- who was presiding over an auto negligence case Labovick was handling -- indicated that she had received a copy of Labovick's Web posting from an anonymous source. She included the posting with her letter, but offered no comment on it.

In the posting to the 200-member discussion group run by the Palm Beach County Trial Lawyers Association, Labovick criticized a modified voir dire procedure the judge had used.

Now the posting, and Lewis' response, have triggered an unusual ethics controversy. The Palm Beach County Trial Lawyers Association has hired a forensic expert to investigate who may have breached the Web discussion group's confidentiality rules. The association's board is considering lodging a complaint against the perpetrator with Chief Palm Beach Circuit Judge Kathleen Kroll.

The association also is considering seeking Florida Bar sanctions against the perpetrator. The association declined to say on what formal grounds it might bring its complaint. All members of the discussion group, called Trial Talk, had signed an oath promising not to disclose anything from the Web site to nonmembers.

"If a lawyer did it and lied about it, he could be subject to discipline," said site founder Walter C. Jones IV, a Palm Beach Gardens lawyer. "He wouldn't be disbarred or anything, but the candor of the site is compromised when its security is violated."

The underlying auto negligence case, Guertin-Sykes v. Jinn, was tried in September. It concluded with a jury verdict for the defense. The defense has filed a post-trial motion for attorney fees and costs.

Lewis declined to comment on any aspect of the controversy on the grounds that the auto negligence case is pending. The Daily Business Review could not obtain either Lewis' letter or Labovick's Web posting.

In an interview, Labovick declined to go into any detail about his Web criticism of Lewis or her new voir dire procedure, saying his comments were confidential. Since receiving her letter, he said, he has had no discussion with the judge about the posting.

"I don't know how the judge gained access to it," Labovick said. "She sent me a very factual note that said to one effect or another that she had seen it. I would not speculate on her motives in sending me that note."

Labovick said Lewis also sent the letter and enclosure to the other lawyer in the case. "So it might be that she was simply adhering to judicial ethics that forbid her from ex parte communication with anybody in a case before her," he said.

Neither of the two defense lawyers in the case -- James Munsey of North Palm Beach and Cymonie S. Rowe of Boca Raton -- returned a call for comment.

Coral Gables attorney David Deehl, of Deehl & Carlson, who served for a decade on the Florida Bar's professional ethics committee, said Lewis "probably" behaved appropriately in notifying both sides in the case that she had received a communication from a third party regarding Labovick.

But Deehl, who's not involved in the case, said that without knowing the precise content of Labovick's Web posting and Lewis' letter he couldn't say whether any Bar ethics rule was violated.

Anthony Alfieri, director of the University of Miami law school's Center for Ethics and Public Service, said there are at least four levels of ethics issues that need to be explored in the case: Labovick's original Web posting, the disclosure of the posting, whether opposing counsel participated in the disclosure and whether Lewis' letter to the lawyers violated judicial canon.

Another ethics question is whether Labovick told his client in the auto negligence case about the incident with Lewis and the potential for it to impact the case. One lawyer who did not want to be identified said Labovick is obligated to consult with the client. Labovick did not return a second phone call to discuss this issue.

According to one attorney who did not want to be identified, the issue raised by Labovick in his Web posting centered on how Lewis chose to interview prospective jurors.

Normally, the members of the jury pool are interviewed in one large group, and if a juror makes a comment that could taint the rest of the pool, the judge will call that individual up for private questioning by the plaintiff and defense sides.

But given the courts' budget and time constraints, judges face growing pressure to avoid having an entire jury pool tainted by an individual's comments and then being forced to call another large bloc of potential jurors for voir dire.

To avoid that situation, Lewis reportedly asked potential jurors to come up individually for questioning on hot-button issues such as their feelings about insurance companies, and then she had them return to the general pool for other types of questions. That apparently is what Labovick complained about.

Lewis, 52, a former shareholder at Carlton Fields who was elected to the bench in 2002, attended Notre Dame University law school with a number of current members of the trial lawyers' discussion group.

West Palm Beach attorney David Prather said that he has high regard for Lewis but said his view is not universally held in the Palm Beach County Trial Lawyers Association, of which he is a member.

Some members who have appeared before Lewis, he said, have been critical of their "perceived treatment" in her courtroom. He declined to elaborate.

In the Palm Beach County Bar Association's 2005 survey of its members' views of local judges, 29.5 percent of respondents rated Lewis' demeanor and courtesy to lawyers excellent, while 36.5 percent said she needs improvement. Only three other judges received higher "needs improvement" scores on demeanor.

On knowledge of the law, Lewis was rated excellent by 46.8 percent and on impartiality was rated excellent by 46.2 percent.

The Trial Talk Web site, started by the Palm Beach County Trial Lawyers Association on Yahoo about five years ago, is supposed to be secure, with access limited to association members, Jones said.

Members can get access only through use of a private password, and they're sworn to secrecy about its contents, said Prather, a plaintiffs lawyer and associate at Lytal Reiter Clark Fountain & Williams.

The Web site is similar to professional discussion sites operated by trial lawyer groups in Florida and around the country and similar to sites operated by professionals in other industries, Jones said.

The site's purpose, Prather said, is to provide members with information and insights that can help them serve clients. Only lawyers who solely represent plaintiffs are permitted to use the site.

"It's not a forum designed for people to criticize judges, although you might see some constructive criticism on it occasionally," Prather said.

Its purpose, he said, is to "promote the free flow of productive information -- information on orders, on the tendencies of certain judges in certain sorts of rulings, on how various judges handle jury selection. It provides information on expert witnesses. People can ask other members if any of them have depositions from this expert or that one."

"It's a secure site," Jones said. "The FBI could get in, I suppose. But the average person couldn't hack that site."

"I do think the integrity of the site has been impaired," Prather said.

A letter describing the incident has gone out to all members of the discussion group. Prather said he considers the breach of confidentiality to be an ethical violation by the perpetrator.

"We're concerned now that if we say things [on the Web site], it's going to be leaked to everyone, including the news media," Jones said. "It definitely puts a chill on it."

Labovick said his posting did not represent "a personality issue" between himself and Lewis. It was "a warning to other members that this is the way Judge Lewis is now doing this in her courtroom. That's all it was."

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