What is Mark Means Tweeting?
October 21, 2020
It’s been quiet out there as we wait for the upcoming hearings, and I was hiking among the red rocks of Sedona, Arizona, when my watch buzzed, with the BUZZ that Mark Means has taken to Twitter to try his case! Several people have reached out to me to ask my opinion on Means’ conduct. So here are my thoughts.
I’ve encouraged readers to give Mr. Means the benefit of the doubt, but I agree that his recent tweets are problematic. I’m not going to call names or cast stones; I’m just going directly to the Idaho Rules of Professional Conduct to see what the rules say about such behavior.
The Idaho Rules of Professional Conduct are made up of several parts. First, there is a Preamble, followed by the Rules and Commentary. To be clear, the Preamble and the Commentary are not rules and are not enforceable. The Preamble contains the aspirations that the rules are based upon, and the commentary is provided to help practitioners interpret each rule’s intent. While not enforceable directly against a lawyer, the Preamble is worth reviewing. For instance, the Preamble states:
“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others… [7] Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service…[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest…”
The actual text of the applicable rules is:
RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (We’ve noted in previous newsletters that a lawyer doesn’t have to have specialized training or experience in a specific area of the law, only the ability to reasonably attain the specialized knowledge required for the specific case).
RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
*RULE 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Now how do we apply all this to Means’ tweets?
A lawyer has an obligation to investigate his client’s case thoroughly. There is no argument that no matter how much money Lori Vallow Daybell has, she will never be able to match the resources of the states of Idaho and Arizona. The prosecutor can mobilize law enforcement agencies and forensic scientists to discover and analyze mountains of information. Because of this, in many states, even retained attorneys may request public defense funds for extraordinary investigative costs. The state of Idaho appears to have a fund called the Extraordinary Litigation Fund (ELF). In my cursory scan of the fund’s information, it appears non-public defender lawyers may apply to the fund for assistance with extraordinary case expenses. They must, however, meet the same qualification standard as public defenders, which are:
V. Defending attorneys’ abilities, training, and experience should match the nature and complexity of the cases in which they provide services including, but not limited to, cases involving complex felonies, juveniles, and child protection. A. A defending attorney shall minimally meet the requirements of Idaho Code §19-855 before representing indigent persons or other individuals who are entitled to be represented by an attorney at public expense. Revised 11/14/18 STANDARDS FOR DEFENDING ATTORNEYS – Edition 2018 3 | Page B. A defending attorney shall be familiar with substantive Idaho law, constitutional law, criminal law, ethical rules, criminal procedure, rules of evidence, and local rules and practices. Defending attorneys have a continuing obligation to know the changes and developments in the law and have the ability to recognize collateral consequences. C. Defending attorneys shall be familiar with current forensic and scientific issues that can arise in a case, including current technology used by law enforcement and other investigative officers, and the legal issues concerning defenses that can be raised. Defending attorneys shall be able to effectively litigate those issues. D. Defending attorneys shall be familiar with mental health, substance abuse, poverty, education and other psychological, medical and social issues that affect and impact the lives of their indigent clients. E. Defending attorneys shall be familiar with office technology commonly used in the legal community, and technology used within the applicable court system. Defending attorneys shall be able to thoroughly review materials that are provided in an electronic format. F. Prior to undertaking the defense of an indigent defendant or other person entitled to an attorney at public expense, counsel should have sufficient experience to provide competent representation for the case. A defending attorney should accept more serious and complex cases only after having had experience and/or training in less complex matters. As such, supervising attorneys should take the experience of a defending attorney into consideration when assigning cases. At a minimum, defending attorneys without adequate experience shall consult with a more experienced defending attorney before handling more complex cases. G. Defending attorneys should, when possible, consult with more experienced attorneys to acquire knowledge and familiarity with all facets of indigent defense representation, including serving as cocounsel to more experienced attorneys. Performance Standard – Investigation and Experts A. Defending Attorneys shall conduct an independent investigation of the charges and offense as promptly as practicable. B. When appropriate, a defending attorney shall request funds to retain an investigator to assist with the client’s case. C. A defending attorney shall request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution’s case.
In answer to Means’ complaint that the state outguns him, it appears he can apply to the state of Idaho for assistance with investigatory costs. If he doesn’t know this, he should. Why then, is Means asking Twitter for help with the investigation, and why is he trying to discredit some of the evidence publicly? Your guess is as good as mine. To obtain the funds, he needs to prove he is as competent to take the case as any other public defender. I don’t have enough information to know whether he meets those standards, but I wonder if this could impede his pursuit of state funds to help with investigative expenses.
Many people, apparently including Mark Means, believe Melanie Gibb has not been entirely forthcoming about the extent of her involvement in Chad’s cult and that she may know more than she is telling about the children’s deaths. It’s not surprising that Means believes that. Surprisingly, he seems to be challenging Melanie Gibb’s credibility on social media. It’s a choice that could come back to bite him. For many, Melanie Gibb has been a sympathetic witness, who although brainwashed by Chad, finally came to her senses and told the truth. I’ve seen comments about Melanie lying to the police several times. I may have it wrong, but I’ve listened to her testimony more than once. The way I understand what she said, when police asked Melanie whether JJ was with her, she told them he was not. She also told them he had been with her but that he was back at home. Melanie later admitted that the last time she had seen JJ was on September 22, 2019, and that she had lied to police about having him with her at any time after that. The testimony raises two questions: 1) whether the simple fact that Melanie lied to police puts her credibility in everything at issue, and 2) whether the lie impeded the investigation into what happened to JJ. The first question will be one for a jury. Indeed, the defense attorneys will portray Melanie as a liar who can’t be trusted in anything she says. The DA will present her later recording of Chad and Lori as evidence that Melanie’s better angels prevailed and drove her to tell the truth. The second question is one of relevance. Other than reflecting on her credibility, is the information relevant to the charges? That will be for a judge to decide.
The larger question in this newsletter is whether Means should have gone on the attack on social media. A politician takes to Twitter to shape his narrative to the public or the legislative body. But while a politician’s job is to shape public opinion, not only is it outside the scope of a lawyer’s duty, it’s actually a violation of that lawyer’s professional obligations and the public trust.
Here is what I will say about Mark Means’ conduct: A lawyer’s duty is to his client. First and foremost, that lawyer should investigate, test the state’s evidence, and build the narrative for his client’s version of the disputed events. In an environment where resources are limited, he should seek avenues to fund his client’s needs and not take to Twitter to complain about the inequity. Anything he does outside those duties is likely counterproductive and does not serve his client. According to the Idaho Rules of Professional Conduct, any injury to his client or their case is unethical and constitutes misconduct.
We live in a society increasingly governed by quick jibes and internet memes. Our political discourse is reduced to oneliners and gifs. But it’s a lawyer’s job to elevate, to assure that justice is served, and not to serve up his case like it was the most recent activity of the Kardashians. Don’t get me wrong, I love social media, and I think it serves some fun and potentially important functions. It should not ever replace good old-fashioned lawyering.
Some have speculated that Means is trying to get himself tossed off the case. The problem with the logic is that he’s as likely to be disciplined or potentially disbarred as he is to be dismissed from the case.
My advice to Mark Means: work hard for your client, dig deep, study, consult other, more experienced lawyers, and above all, keep yourself and your case off social media. If you must post, adjust your privacy settings to friends only, and post only about things not related to your case.
