ABA Journal


Internet Law

Research Lawyer Is Fired for Tweeting About ‘Naughty Boy’ Ex-AG During Ethics Hearing

Nov 19, 2012, 01:33 pm CST


Herr should have keep her thoughts to herself at the least until after the matter was concluded. The fact that her remarks became public is not what makes her conduct wrong.

By Old Lawyer on 2012 11 19, 4:37 pm CST

@ 1 - If only Herr's friends had learned of her comments, the comments still would have been wrong? Why? Douchebag is one of the kinder things said about Klein.

By Pushkin on 2012 11 19, 5:08 pm CST

The descriptors "naughty" and "douchebag" sound like opinions, rather than conclusions of fact or law, to me. If the appellate courts in KS consult Twitter before rendering opinions, these days, we all have a problem.

Perhaps its time for all court websites to carry a warning--aside from the usual ones about not taking anything on the sites as legal advice, etc., that the Court is an entity separate from the people who are employed their, and statements not made in their official capacity as judges or clerks are NOT the opinion of the Court.

By BMF on 2012 11 19, 10:21 pm CST

I am more and more convinced that the first four letters of Twitter define it.

By Walt Fricke on 2012 11 21, 12:17 am CST

Doing stuipid things gets you fired.
This is another example of "don't call your boss a jerk on Facebook"; I know the situations are not completely identical, but the principal is the same.

By Realist on 2012 11 21, 1:30 pm CST

This is a badly blury line. Yes Twitter has its downside and this story clearly highlights that. But I also imagine Sarah's twitter account is her own personal account and does not carry the court's tag or insignia on it. When she is tweeting she is Sarah period, not Kanasa appellate court clerk. Sorry but when she leaves the job there has to be some degree of off switch. By way of example, by day she may help the court write an opinion that abortion is legal and at 5:00 p.m. leave walk across the street and march in a pro-life demonstration if she wanted. If you want to terminate her for image of impropriety well thats subjective because calling some one naughty or a douchebag is a matter of taste. An employment lawyer with balls might take this on. If I do insurance defense by day and at night Tweet that all insurance companies suck ass and should be shot and that there should be no Tort Reform, you think my employer has cause to fire me ?

By EJF on 2012 11 21, 3:13 pm CST

It appears that the Kansas Supreme Court is badly in need of an overhaul, exercising more discipline over court employees.

Although I was a judicial clerk pre-Twitter (DECADES before Twitter), on the very first day on the Chief Judge emphasized to me the need not to do anything in my professional or personal life that might call into question the nuetrality of the court.

By Yankee on 2012 11 21, 3:48 pm CST

@#6 EJF--Yes, I absolutely believe that you could be fired if you worked for an insurance defense compnay and were publicly bashing insurance companies in your free time. First of all, publicly bashing your employer should be cause for firing. If a company's own employees defame the work they do, it would drive away clients and could be significantly harmful to the company. Of course they should be able to fire you for causing them harm. You think your clients don't google you? You think a client wouldn't ditch their representative in a heartbeat if said representative is publicly proclaiming that they should lose? Intentionally costing a firm business is absolutely cause for termination. Second, 49 of the 50 states are "at-will employment" states. Which means your boss can fire you for any reason or no reason, so long as it is not discriminatory. So yes, in your hypothetical you would be fired, and you would have no recourse against your employer.

The situation in the article is a little different, because the employer is the government, and as such their employees have a bit more protection to speak against their employers than those in private practice. Additionally, government employers are required to show cause for firing in some circumstances, but that is the extent of my knowledge on that area, so I can't say whether this would be such a case or not. Regardless, your comparison to a private attorney being fired for trashing his clients is not a good analogy.

By Robbie Mai on 2012 11 21, 4:28 pm CST

Perhaps the court should focus on hiring more objective clerks in the future - one would expect an appeals court (and their employees) to be above politics and petty partisanship.

By PDK on 2012 11 21, 4:36 pm CST

Yankee is absolutely correct as was his Chief Judge. The issue of her (a licensed attorney) first amendment rights pale in comparison to her obligation to maintain the court's neutrality and the issue of appearance of impropriety (in Judicial Code of Conduct context). Discussing a pending matter? Really? There's a debate here?

By ER on 2012 11 21, 4:40 pm CST

@10 - Sorry should be 'pales'.

And another thing, in many states the Judicial Code of Conduct applies to the court's employees also, i.e., no soliciting/receiving of campaign money, etc. Herr is very lucky her state Bar associations grievance committees are not looking to discipline her.

By ER on 2012 11 21, 4:48 pm CST

If you want to know "What's The Matter With Kansas", look up Phillll Kline.

By joebill47 on 2012 11 21, 4:56 pm CST

Why is this so hard for people? If it relates to a pending legal matter you're working on, do not post it on Facebook or Twitter. With due respect to #6 EJF, there is not a blurry line at all. It is a very clear line. Don't do it. And this isn't restricted to electronic communications: don't blabber at a crowded bar, or at a non-crowded bar, or in any public place. Don't even talk to your close friends about it. There is no private sphere in which the rules of professional conduct cease to apply to you when you are talking about work-related matters.

By Random Guy on 2012 11 21, 4:57 pm CST

I always told my law clerks that for the term of their clerkship they were an extension of me, and they could not do anything -- private or public -- that I could not do. The fact of the public comment about a pending case -- regardless of the content of it -- is clearly inappropriate. This is not a blurry line in any respect.

By A Senior Judge on 2012 11 21, 5:14 pm CST

@11 - Nice work catching a typo on an internet forum. I too love that self aggrandizing moment when I am able to showcase my proofreading skills. Makes people like us feel alive, doesn't it?

By Jimmy Russels, esq. on 2012 11 21, 8:05 pm CST

Robbie that's humor right? Objectivity for judges and clerks. Herr deserves to be reprimanded and fired in her position she has taken on the higher duties of the Court. It's sadly not unusual for DAs and other governmental attorneys to be the least ethical

By Todd on 2012 11 21, 8:30 pm CST

Well, as I always say these days,

By Avon on 2012 11 22, 1:43 am CST

No. 11, based on the most recent AP article, it looks like she has been referred for disciplinary inquiry as well. Ironic, given her comments.

It is kind of sad to see a young lawyer, particularly in public service, knock her career in the head so early with such a staggering error in judgment. Her friends and colleagues must be shaking their heads.

By B. McLeod on 2012 11 22, 5:29 am CST

Her comments missed by a Herr.

By NOW JERRY BROWN on 2012 11 22, 1:43 pm CST

Court neutrality? What a crock! Judges have been bought and paid for by Corporate America. The judicial system is even more corrupt than the Executive and Legislative branches. We're just so used to injustice, we have become numb to the abuses.

[Orange County, California ... Where dishonesty is the new honesty.]

By Kaye Wolf on 2012 11 22, 2:23 pm CST

It appears she was unable to persude the court that to Herr is human (or perhaps, even Eweman, as one is left wondering if there really could be two).

By B. McLeod on 2012 11 22, 4:52 pm CST

Were she a cat, her comments would be an Herrball.

By porkut on 2012 11 26, 5:18 pm CST

@15 - correcting one's own typo isn't really "self aggrandizing" - in fact, it reflects a bit of humility in 'fessing up to the error.

By MrBill on 2012 11 26, 6:28 pm CST

Unless I'm mistaken, this matter was not before her judge or the court for which she worked. Disciplinary matters are issues for the Kansas Supreme Court. She worked for a Court of Appeals judge. She still deserves to be fired, but just wanted to make sure you all had your facts straight. I also don't believe she made those tweets during her own time. The Kline hearing was during normal work hours. She just went upstairs and sat in on the public hearing, where she then tweeted very biased personal opinions about it. Not very bright.

By KS Attorney on 2012 11 26, 7:32 pm CST

@22 - or, if she were a basketball player.

By MrBill on 2012 11 26, 9:49 pm CST

@25, too true.

By porkut on 2012 11 26, 11:01 pm CST

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