On Feb. 8, former Centre County District Attorney Stacy Parks Miller was suspended from the practice of law for one year and one day. Miller was found to have committed three separate types of misconduct, all occurring while she was the top law enforcement officer in the county: improper ex parte contact with judges; making false and misleading statements about this contact in court hearings; and creating a Facebook page for the purpose of covertly investigating witnesses, suspects and defendants. Miller’s case gave the court and the board an opportunity to reassert one of their fundamental disciplinary principles: lawyers who violate the Rules of Professional Conduct while in public office cause greater harm to the profession by violating the rules and require more discipline.
The report and recommendation drafted by the Disciplinary Board and adopted by the court presents an opportunity for a mini course on the disciplinary process, its procedures and pitfalls. The report also provides a warning that, even when the court has not previously ruled on the specific misconduct at issue, that will not save the attorney from discipline, especially if other authority has provided notice that the misconduct violates the rules.
Let’s talk about what this case reveals about the process. From the report, we know that, as is typical, these proceedings started with a DB-7, a form used by the Office of Disciplinary Counsel (ODC) to alert an attorney of a complaint. A DB-7 provides the attorney with notice of the alleged facts that are under investigation and the Rules of Professional Conduct that may be violated by these facts. The DB-7 requests a verified response within 30 days. An initial DB-7 was served in this case in January 2015, with supplemental requests, or DB-7As, served in June 2015 and June 2016. Some of the conduct being investigated had occurred as early as 2011. What do these dates tell us? There is no statute of limitations defense in disciplinary proceedings, (though I have, in some cases, argued laches should apply) and these cases can take a very long time to wind their way through the system.
After the DB-7 and response process was concluded, ODC filed a petition for discipline with the board. Generally, the petition must be answered within 20 days, with one 20-day extension available. At the moment the answer is either due or is actually filed, the case becomes public. If no answer is filed, ODC can move to have the allegations of the petition deemed admitted. In this case, after several unsuccessful attempts to thwart the process by attempting to have the disciplinary proceedings stayed,Miller failed to answer the petition and the factual allegations against her had to be considered proven by the committee.
A petition for discipline is heard by a three-member hearing committee of volunteer attorneys appointed by the Disciplinary Board. Each member is appointed for a three-year term. In this case, there were at least three over-arching rule violations: The first was Rule 3.5, which prohibits a lawyer from “seeking to influence a judge, juror, prospective juror or other official by means prohibited by law” or “communicating ex parte with such a person during the proceeding unless authorized to do so by law or court order.” On this charge, the committee found that, in three criminal matters, Miller had ex parte contact with the (only) two Common Pleas Court judges in her county, either through email or text messages. The messages were related to the cases; some were substantive; some were joking. Miller admitted that, in some instances, this conduct was intended to persuade the judges to rule in her favor.
In addition to this, in at least two separate matters, defense counsel sought to recuse one of the judges based on the close personal relationship between the DA and the judge, specifically alluding to their texts and emails. Both the judge and Miller adamantly denied in court that these texts existed. This conduct violated Rule 4.1, which prohibits “making a false statement of material fact or law to a third person.”
The oldest misconduct occurring in 2011 and 2012, related to the creation of a fake Facebook page that Miller created in the name of “Britney Bella” for the purpose of liking establishments suspected of selling illegal bath salts. Persons who had also liked the bath salt establishments “friended” the fictitious Facebook page and the page sent and accepted friend requests in order to appear legitimate. The respondent used photos of young women to enhance the page’s allure. After creating the Facebook page, the respondent sent an email to her office stating that she had made a fake Facebook page “for us to befriend people and snoop. … Use it freely to masquerade. … Use it to befriend defendants or witnesses if you want to snoop.” This conduct implicates both 4.1 and 4.3: the latter applies when a lawyer is dealing, on behalf of a client, with a represented party and forbids stating or implying that the lawyer is “disinterested.” In other words, don’t lie and don’t mislead!
After a disciplinary hearing, the parties file briefs with the hearing committee, which then issues a report and recommendation to the Disciplinary Board. In this matter, the committee found that the ex parte communications with the judges were rule violations and that Miller had not been truthful either in the recusal hearings or in her responses during the disciplinary proceedings.
The committee also found that the issue of the Facebook page was a matter of first impression and that the conduct did not rise to the level of a rule violation. Based on these conclusions, the committee recommended a suspension of three months, which was the suspension requested by the Office of Disciplinary Counsel. (An attorney is reinstated automatically after any suspension of one year or less; a suspension of more than one year requires the attorney to go through a rigorous reinstatement process, including a hearing.).
Then how did Miller end up with a suspension of one year and one day? In considering the committee’s recommendation, the board reviews the facts and the law de novo and is free to reject the committee’s recommendation and recommend its own sanction to the court. (The court can then reject the board’s recommendation and impose its own, final sanction.) The board concluded that, while the Facebook page was a matter of first impression, its creation and use constituted misconduct because RPC 8.4(c) broadly prohibits deception. The board said:
“The question of whether a prosecutor violates the Rules of Professional Conduct by engaging in covert activity through the use of social media is novel within Pennsylvania’s adjudication of disciplinary matters. There is no dispute that the covert activity is permitted in criminal investigations; however, attorneys themselves are prohibited from participating in such activity. RPC 8.4(c) broadly prohibits an attorney from engaging in dishonesty, fraud, deceit or misrepresentation. Significantly, Pennsylvania has no express prosecutorial investigation exception that allows prosecutors to engage in activity prohibited by RPC 8.4(c).
Further, the board noted that Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 was widely known and prohibited the practice of using social media to deceive. See also D.C. Bar Opinion 323 (“A lawyer, acting in the capacity of a law enforcement agent, and not in a representative capacity does not violate the Rules of Professional Conduct by undercover activities.). The board also noted that Miller did not seek ethics advice on this use of the Facebook page, and that her conduct also included a violation of her duty to properly supervise her employees and ensure that they were not violating the rules.
The board also opined, and the court agreed, that the respondent’s position of public trust and authority, lack of remorse and harm to the reputation of the District Attorney’s Office and the Centre County Court of Common Pleas were aggravating factors that created the need for more discipline. The board recommended, and the court imposed, a suspension of one year and one day. As discussed above, this recommendation was based on a long line of cases that have consistently held that individuals who are in positions of power and have gained the public trust create more harm when they abuse those positions through corruption, deceit or self-interest. This is a premise that, as we see on a daily basis, is both well-founded and essential to upholding the values of our democracy.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.