Errant Texts Establish Lawyer’s Misconduct

Robert LilesIn The News

There are moments when a person faces the basest of their instincts. The image of an angel on one shoulder, a devil on the other is an apt picture of this test of wills. Many times one listens to their conscience and opts for the more civil and noble path. Other times, one gives into temptation and goes the opposite way.

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The devil’s path may not necessarily be evil. It might also appear quite reasonable. We deceive others for a variety of reasons other than outright malice: to protect oneself or one’s dignity; to prevent some kind of loss or gain an advantage; or simply as part of a habitual string of compulsive lies.

Sometimes when people make poor choices, or are accused of doing so, they find themselves on the wrong side of the law. Whether it’s the plaintiff or defendant, either party wants a stellar attorney, and one who will not only help them to win the case, but also to comply with standards of ethics and practices.

One might be forgiven for thinking that members of the legal profession would be among the strictest adherents to the law, along with law enforcement officers and the clergy. This is not always the case. Recently, an attorney failed to listen to his better angels, and he found himself the subject of a Bar investigation.

Bad Judgment

Maitland, Florida-based attorney Derek Vashon James came under fire recently for his actions during an over-the-phone deposition of Renee Gray, an adjuster in a workman’s compensation case. The adjuster worked for the employer James represented.

In July 2018, while the adjuster was being deposed, opposing counsel Toni Villaverde heard typing and asked James if he was texting. He said he received a text from his daughter, spurring Villaverde to request that he stop texting during the deposition. James said he would comply.

However, James continued to text. Unfortunately for him, he mistakenly meant to text the adjuster during the deposition but texted Villaverde instead. He sent several text messages between 11:53 AM and 11:55 AM, including some that read, “Just say it anyway;” “Don’t give an absolute answer;” and “It’s a trap.”

The incident was reported to the Florida Bar. On January 28, 2020 the Bar filed a complaint against James for coaching a witness, which it found in violation of its Rule 4-8.4(d). The Bar found that James had sent a series of text messages to the adjuster between 10:19 AM and 10:25 AM, which revealed prompts he sent to coach her deposition. To make matters worse, James “failed to be transparent and forthright with the judge regarding his texts to Gray.”

Following the investigation, on November 18, 2021 James received his penalty. A referee’s report found James guilty of professional misconduct in violation of Florida Bar rules. While the referee’s report recommended a thirty-day suspension, the Supreme Court of Florida sentenced James to a suspension of ninety-one days.

When Evidence Matters

James made grave errors, not only in his misconduct, but also in sending several revealing texts to opposing counsel and attempting to cover it up to the judge. The Bar investigation clearly identified his misconduct, and it cost him three months of practice.

It might not always be as straightforward to demonstrate misconduct. Others might be much more skilled at hiding their digital tracks. Uncovering digital evidence of criminal conduct can be of crucial importance for prosecutors or defense attorneys alike. Digital forensics experts can locate and extract this information for use in court.

Secure Forensics specializes in computer and mobile forensics services, including expert testimony, eDiscovery, and on-site or remote investigations. If you feel there is cell phone data that can be used in your legal case and need professional help to provide you with evidence, contact one of our experts at Secure Forensics today at 800-288-1407.