by Paul Alan Levy
Louisiana lawyer David Groner has made a few mistakes. Which was the most serious?
David Groner's Misconduct Toward Clients
At some point time before January 18, 2007, one of Groner’s associates filed a lawsuit on behalf of some clients in the wrong venue; the defendants moved to dismiss. Groner’s firm nevertheless paid a small amount of money to the clients, but, apparently, left the clients believing that it was the defendants rather than Groner’s firm that were making the payments, leading the clients away from thinking about the possibility that they might have a claim for malpractice. The clients ultimately learned the truth, then complained to the Bar; the upshot was a joint petition for discipline, signed both by Groner and the Office oi Disciplinary Counsel, calling for a deferred six-month suspension from the Bar because of what the joint petition called “at a minimum, . . . a misrepresentation as to the true nature of the January 18 transaction." The state Supreme Court characterized its ruling as having stemmed from an “investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Groner later told blogger Eugene Volokh that “dishonesty, fraud, deceit, or misrepresentation” is simply one of the categories into which the Louisiana Supreme Court places disciplinary actions, and hence that the use of this phrase did not mean that he engaged in any “dishonesty, fraud or deceit”; he felt that the only fair characterization of the conduct for which he was disciplined was “misrepresentation.”
When Groner ran for public office in 2011, his consent discipline was raised as an issue against him.
Groner’s Misuse of His Position as an Officer of the Court
Then, in late August 2015, when the Daily Iberian, a local newspaper, published a story about a case that Groner was handling, an anonymous commenter sniped at Groner by referring to “the truth [having come out] about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.” Groner sued the Daily Iberian and, based on an ex parte verified complaint that he did not send to the defendant, he obtained a temporary restraining order forbidding the newspaper from “publishing or posting . . . any article or story in which plaintiff . . . Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”
The order was baseless, and in several different ways. The complaint reveals that the only claim alleged in the lawsuit was defamation, but wholly apart from whether the facts described in the disciplinary memorandum could fairly be characterized as fraud and dishonesty as well as misrepresentation, under 47 U.S.C. § 230 the newspaper itself cannot be held liable, or enjoined from carrying, alleged defamation by a commenter. Moreover, although the complaint alleged that the Doe wrote “false and misleading postings” despite being “well aware of the truth,” but it did allege that the newspaper carried the comment with actual malice. Because Groner had run for office only four years before, he may well have been a public figure. And a temporary injunction is an impermissible prior restraint, strictly forbidden in defamation cases by the Supreme Court’s decision in Organization for a Better Austin v. Keefe: “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.” A last flaw going to the merits: Even outside the context of the preliminary injunction context, Louisiana is one of the states that still follow the maxim that equity will not enjoin a libel. And procedurally, even if the issuance of a TRO without notice is acceptable under Louisiana law (and a motion for reconsideration by the newspaper argues that it was not), the Supreme Court’s decision in Carroll v. President and Commissioners of Princess Anne forbids preliminary relief against without a detailed showing of the inability to provide notice to the defendant. But Groner made no showing of inability to give notice; quite to the contrary, the complaint alleged that Groner had been communicating with the newspaper’s publisher who refused to removed the critical posting because he deemed it “fair comment.”
The complaint also suffered from some more technical defects. It never squarely alleged that the comment over which he was suing is false. Instead, it alleged that Groner had provided the newspaper with “documentation that the plaintiff . . . was found not guilty of conduct that involved dishonesty, fraud or deceit.” Under the best evidence rule, the document itself would have been the proper way to prove its contents, and this case shows the wisdom of that rule, especially in an ex parte context – assuming that the “documentation” was the joint petition for discipline, that document does not find Groner “not guilty” of anything; to the contrary, it says that he was guilty of “at a minimum . . . misrepresentation.” Moreover, Groner did not verify the complaint on personal knowledge, but only “to the best of [his] knowledge, information and belief.” An experienced judge, indeed any experienced lawyer, should have detected these problems.
But Groner did not present his request for relief to an experienced judge. Rather, he was at pains to tell me that issuance of the TRO was not the judge’s fault, because the judge had only recently been elected to the bench (a fact confirmed for me by the newspaper defendant). Although it is awfully decent of Groner to take personal responsibility and deflect blame from the local judge, I don’t excuse the judge that easily – judges are supposed to stand up for the constitutional rights of defendants, and they ought to know better that to issue injunctions against speech without at least taking a look at the law books. But in many ways, Groner’s defense of the judge only makes Groner look worse: did he assume that he could get away suppressing criticism given how inexperienced the judge was?
Groner Fails to Suppress the Criticism
Once it was informed that a TRO had been issued against it, the newspaper removed the comment in question, but it published an article about the lawsuit, and the story was picked up by other local news media as well as by Ken White at Popehat. But it was, it appears, the news that Eugene Volokh was preparing a post for his Washington Post based blog that persuaded Groner that the Streisand Effect might end up having an even more deleterious effect on his reputation than the comment from some anonymous Daily Iberian reader; accordingly, he told Volokh by email that he was going to dismiss the lawsuit.
I found this part of his email, which Volokh included in his blog post about the case, particularly telling:
“The end result is classic Streisand effect, I made it worse by trying to correct it. . . . I have now realized that I cannot control what is said on the internet and will do my best to return to anonymity.”
It is refreshing that Groner now takes full responsibility for his mistake, and for the public consequences of that mistake. Groner generously responded to my questions about the case, as he apparently responded to Volokh, and he willingly sent me a copy of his complaint (as he sent the underlying bar disciplinary consent motion to Volokh). Credit where credit is due.
How Long Before Groner Can Hide His Discipline from Future Clients?
In the short run, at least, Groner has run afoul of the Streisand effect, and he knows it. But how long will that continue? Can Groner return to practical anonymity?
You would think that prospective clients of a lawyer would want to have ready access to facts about his having misled clients, just as clients might want to have access to facts about his failing to pay his taxes for a long enough time that his house was foreclosed to pay his debts. But Spanish lawyer Mario Costeja González persuaded the European Court of Justice to grant a petition that he filed in 2009, arguing that it was unfair for Google to bring his 1998 financial troubles to the attention of his potential clients who might run a search based on his name, because the forced sale had been concluded years before and was no longer “relevant.” That court, applying the "right to be forgotten" to Google on the theory that Google is a "data controller" under the European Union's data directive, ordered Google not to return any results about the financial problems to searches for information about González.
Subsequent rulings in Europe seek to extend this ruling to all of Google, Google.com as well as the local Google databases; European officials are also trying to prevent Google from returning reports about removal orders to searches for the names of people who have sought removal orders.
Most lawyers agree that such right to be forgotten rulings could not extend to the United States, consistent with the First Amendment, but there are some privacy advocates such as Marc Rotenberg at EPIC who are campaigning forcefully for such a right; and even some well-known free speech advocates, such as Marc Randazza, have lent their names to that cause. Randazza has, indeed, joined the Board of Directors of the "Association Against Internet Defamation, Denigration and Harassment."
If the right to be forgotten applied in the United States, could David Groner have succeeded in hiding his discipline from Google search engine users who conduct a search for information about him, if he had only waited a year or two to initiate the request? How long after his 2008 discipline for his January 2007 misconduct will that misconduct no longer be legally “relevant”? And who decides when published speech about that subject is no longer relevant, and hence should be hidden from search engine users?
And is it just the underlying discipline that becomes irrelevant, or will the discussion of his professional discipline in the 2011 election also be irrelevant? And what about the characterization of that discipline in the August 2015 comment on the Daily Iberian, and the discussions of that discipline in blogs such as Popehat and the Volokh Conspiracy? Must that be forgotten along with the discipline? To what extent does Groner’s attempt to use litigation to suppress commentary by readers of a newspaper disqualify him from having his misdeeds forgotten?