It was long after midnight at a Savannah hotel in February when a lawyer suing Paula Deen found he couldn't sleep and turned to Twitter to chat about the celebrity chef.
Asked by one of his more than 200 followers how he was doing, Atlanta attorney Matthew Billips replied: "I've been doing Paula Deen, but in a strongly metaphorical sense."
As the tweeter egged him on, Billips said he was representing Lisa Jackson, one of Deen's former employees who last year sued Deen and her brother Bubba Hiers, over allegations of sexual harassment, sex and race discrimination.
After assuring the tweeter, "The lawsuit is real. It is the doing Paula which is metaphorical," Billips added, "I plan on undressing her. Metaphorically."
Within days, defense lawyers for Deen and her brother had uncovered Billips' tweets. The irony of a lawyer suing Deen for sexual harassment and then making her the object of sexual double-entendres on Twitter was not lost on the defense, who made the point repeatedly in court pleadings as they sought to have Billips disqualified from the case.
Billips, they said, had "publicly threatened to sexually demean a female defendant while acting as an officer of the court."
Billips, a partner at Atlanta's Billips & Benjamin and a former government civil rights lawyer, said the pre-dawn tweets were taken out of context and that his Twitter followers, as well as the defense, know the difference between a snarky, tongue-in-cheek tweet and a real threat.
U.S. Magistrate Judge G.R. Smith essentially agreed when he declined to sanction Billips, though he expressed his disgust with legal teams from both sides in a May 8 order, chastising Billips for his "coarseness" and improper comment on pending litigation, and criticizing the defendants’ lawyers for using the case record as a "garbage dump" for material designed to embarrass opposing counsel.
Deen and Hiers appealed Smith's decision not to sanction opposing counsel, but U.S. District Senior Judge William Moore, to whom the Deen case has been assigned, rejected the appeal in an order that he then sealed.
Last month, when Deen's deposition—highlighted by an admission that she had in the past used an offensive racial epithet in referring to African-Americans—became public, the resulting media uproar prompted the cable Food Network to cancel her show. Major corporations who had paid Deen generously to endorse their products began canceling those contracts.
On Thursday, Deen replaced her longtime counsel at Savannah firm Oliver Maner and her brother's lawyer in Savannah—Thomas Withers at Gillen Withers & Lake—with attorneys from Washington firm Morgan Lewis & Bockius and Savannah firm Weiner, Shearouse, Weitz, Greenberg & Shawe.
Citing a directive from the court, neither Withers nor Billips would talk about the Twitter dispute. Oliver Maner attorney William Franklin was out of the office and could not be reached.
The Daily Report has pieced together the details from court filings and exhibits that have not been sealed by the court.
Billips' predawn tweets about "doing Paula Deen" around 2:45 a.m. Feb. 27 were not his only tweets about the case. Asked in a Twitter exchange about Deen three months earlier whether he had acquired "contact diabetes" after Billips tweeted that he had "spent the day with Paula Deen, y'all," Billips replied, "Lord, I didn't her food! [sic] #buttercoatedbuttercakes."
Defense lawyers also pointed to Billips' tweets that asked his followers, "How do you feel about Paula Deen and her racist behavior toward employees?"
At the end of one day of depositions, Billips had tweeted that Deen's lawyers had objected to questions as to whether Deen was concerned that one of her adult sons might be gay.
"I asked witnesses if one of Paula Deen's sons is gay and they acted as if I asked if he were a pedophile," he tweeted. "Aren't we past that?"
Defense lawyers argued in court pleadings that Billips' tweets threatened Deen and sought to broadcast via the Internet that she was sexist, racist and homophobic. They added that other Billips tweets, while unrelated to the Deen case, "were sexual and graphic in nature."
"While accusing Deen of 'evil racism and sexism," and speaking of her in sexual terms Billips engaged in his own profane, coarse, and crude behavior with others on Twitter," one defense pleading said.
"These comments expressed a disregard for Paula Deen's most basic rights and were intended to involve her in activity of a sexual nature, amongst other sexually charged communications Billips had with various other female Twitter people," one defense pleading alleged. The tweets, they argued, violated multiple ethics rules that bar attorneys from making extrajudicial comments about the character of litigants that could prejudice a case and from engaging in malicious or harassing behavior.
"If Billips had walked before a television camera and stated that he was going to 'do' and 'undress' Paula Deen, attacked the character of Deen and Hiers by labeling them as 'evil,' 'sexist,' and 'racist,' and exclaimed that suing Deen was 'a hoot' in the midst of other statements unrelated to this case that included the N-word, sexual banter, and strings of obscenities, this Court would sanction Billips," the pleading stated.
"Had Billips walked up to Paula Deen … in front of her lawyers and his more than 240 Twitter followers, and told her he was going to have his way with her sexually prior to her deposition, there is little doubt what this Court's response would be."
Deen's lawyers said that Billips' tweets were part of an overarching pattern by Jackson's attorneys to gin up bad publicity against the celebrity chef and threaten her brand seriously enough to force her to settle the case on Jackson's terms. "From the start, Jackson and her counsel have tried to leverage this litigation using the court of public opinion," defense attorneys wrote.
Shortly after defense lawyers filed their motion to disqualify him, or at the very least bar him from either deposing Deen or cross-examining her in future hearings or at trial, Billips successfully petitioned the court to seal part of the pleadings, including his response to the motion and his reasons for wanting them barred from public view. Then he turned once more to Twitter where, using the tag @SnarkisDanger" he tweeted, "Opposing counsel in the Paula Deen case is trying to use my tweets to get me disqualified."
In an affidavit he submitted to the court, Billips denied violating any ethics rules and said he was not an experienced Twitter user. "It was my understanding that tweets went solely to the person to whom they were addressed and the followers of the Twitter account. To the best of my knowledge, none of my followers reside in the area from which a potential jury would be drawn in this case. There was, therefore, no risk that I would 'tweet' something to a potential juror or that any potential juror would see my tweets, unless (like defense counsel) they went on an active search for them."
"There was no public threat to sexually demean Ms. Deen or anyone else," he wrote. "While the text may have contained language containing at least a potential double entendre, counsel clarified that such was not the intended usage, by describing the actions in question as 'metaphorical' and 'strongly metaphorical.'"
Billips scoffed at any notion that his tweets constituted any threat to Deen as "ridiculous."
"The fact that [the] defendants are unable to distinguish between what is acceptable or permissible between strangers on Twitter and what is acceptable behavior by an owner of a company towards his subordinate employee, who depends for her livelihood on remaining within his good graces, is a large part of the reason that [the] defendants find themselves in this predicament."
Smith, the magistrate judge who held a hearing on Billips' tweets, made it clear that he thought Billips' tweets pushed the limit of acceptable professional conduct although they didn't merit a sanction. "At the public hearing on the disqualification motion, the Court referenced these tweets and found that they constituted improper comment about the merits of pending litigation—essentially stating as fact what his client was alleging," Smith wrote in a May order.
"While the Court noted that the ethics code presumes that such demeaning comments tend to prejudice the proceedings, it determined that the disqualification of counsel was not an appropriate sanction under the circumstances of this case."
Smith noted that Billips' tweets "add little, if anything, to the rather incendiary allegations … already a part of the public record. That no doubt explains why defendants not only never sought to seal these extrajudicial statements, but, after discovering their existence, themselves placed the tweets in the record of these proceedings."
Smith said the defense called attention to other Billips tweets that were unrelated to the Deen case "simply to embarrass Billips, and for no other purpose. Those tweets reveal that Mr. Billips frequently uses profane, obscene, bawdy, and racially-charged language when conversing with his Twitter followers.
"Unable to find any rule of professional conduct that condemned such use of language by a lawyer in his private life, defense counsel fixed upon the oath of admission to practice before this Court, which required Billips to swear that he would 'demean [himself] uprightly and according to the law and the recognized standards of ethics of the legal profession.' The Court challenged defendants to point to any case in the last 200 years that has relied upon this, or similar language, to disqualify or otherwise sanction a lawyer because of his profanity, coarseness, or crudity in his non-case-related communications, be they public or private. Defendants conceded that they had found no such case."
By attempting to disqualify Billips from continuing as a lawyer in the case, Smith said, "The defendants used this record as a mere garbage dump for material designed to embarrass opposing counsel."
This story has been changed to reflect the following correction: A sentence in the July 15 story, “Lawyer’s ‘doing’ Paula Deen tweet raises ire, no sanction,” mistakenly reversed the parties’ roles in a dispute. The sentence should have said that a judge criticized the defendants’ lawyers—not the plaintiff’s lawyers—for using the case record as a “garbage dump” for material designed to embarrass opposing counsel.