“A Letter To The World” Leads To A World Of Trouble

The Missouri Supreme Court has suspended an attorney with no leave to seek reinstatement for one year for breaching his confidentiality obligation to his former employer

In this original attorney disciplinary proceeding, the Office of Chief Disciplinary Counsel (“OCDC”) alleged Ryan Christopher McCarty disclosed confidential client information in violation of the Rules of Professional Conduct. McCarty does not dispute he disclosed the information but contends his disclosures were required and warranted under these rules. Additionally, McCarty claims his disclosures of confidential client information are protected by the First Amendment and Missouri’s public-employee whistleblowing statute.

After an evidentiary hearing, a disciplinary hearing panel (“DHP”) found McCarty violated the Rules of Professional Conduct and recommended he be reprimanded. OCDC rejected the DHP’s recommendation and recommended this Court suspend McCarty. Following a de novo review of the record and consideration of the appropriate standards for discipline and the mitigating and aggravating factors, this Court suspends McCarty’s license to practice law indefinitely with no leave to apply for reinstatement for one year.

Facts

McCarty was admitted to The Missouri Bar in 2010 and has no prior disciplinary history. In June 2022, he began working for the Kansas City Police Department (“KCPD”) as associate general counsel. In this role, his client was KCPD. KCPD terminated McCarty fewer than six months later, on December 7, 2022.

KCPD’s general counsel supervised McCarty. They immediately had a fraught relationship. McCarty believed the general counsel demeaned him, assigned him “grunt” work, treated him like a “glorified secretary,” and created a hostile work environment for himself and others who worked in the general counsel’s office. McCarty also believed he was “completely and unduly blackballed and ostracized from anything of importance” and “stonewalled from anything going on in [the office of general counsel], or the Department more generally.” McCarty filed a hostile work environment complaint with KCPD in early October 2022; the complaint was closed the next month. Around this time, McCarty began e-mailing himself detailed notes about his work and interactions with KCPD employees and saving e-mails and documents related to his representation of KCPD that had been sent to his work e-mail address. He continued this practice until his termination. During his employment, McCarty became concerned with a number of KCPD practices and procedures. On his first day, McCarty alleges he learned of a proposed policy to purge e-mails from KCPD’s systems after six months. McCarty believed this policy, if  adopted, could result in widespread Sunshine Law and Brady/Giglio violations.1 McCarty, however, did not know whether this policy was ever enacted and was not trained regarding KCPD’s Giglio procedures.2 He also believed he and the general counsel had “radically different views on Giglio issues” but the general counsel “effectively prevented [McCarty] from dealing with Brady/Giglio issues until November 29, 2022,” approximately one week before his termination.

He believed KCPD mishandled Sunshine Law requests, too. McCarty was not trained regarding Sunshine Law issues specific to KCPD and did not serve as KCPD’s Sunshine Law coordinator. Near the end of his employment, McCarty tested his concerns about KCPD’s Sunshine Law procedures by making his own Sunshine request. McCarty disputed the quoted monetary charge and time estimation for his request, both of which were subsequently reduced, then paid the amount and received the information requested.

When McCarty was terminated, his termination letter stated it was due to unsatisfactory performance during his probationary period. McCarty sent an e-mail to himself documenting his termination. He wrote, “I have all of the emails and associated records, and they will now be spread far and wide to reveal to the wider community just how bad things are at KCPD.”

McCarty acted promptly. The night he was terminated, he e-mailed two U.S. Department of Justice (“DOJ”) investigators who were investigating KCPD based on allegations of discriminatory employment practices. McCarty was aware of the ongoing investigation because of his former position at KCPD. His e-mail to the DOJ investigators began: “Until this evening, I was the Associate General Counsel of the Kansas City, Missouri Police Department (KCPD). And until now, I was unable (owing to my ethical obligations as their attorney) to speak out.” McCarty proceeded to name 10 individuals whom he claimed had recently filed internal complaints against the general counsel alleging discrimination, harassment, and a hostile work environment. He named four others “who have rightly complained of discriminatory conduct.” McCarty directed the DOJ investigators to speak to all of these individuals. He also “strongly suggest[ed]” the investigators obtain via Sunshine Law request his e-mails documenting malfeasance at KCPD, or, because he kept copies of all these documents, McCarty was more than happy to provide them upon request. McCarty’s e-mail asserted the DOJ investigators would find issues “broader than the scope of [their] investigation” and encouraged the investigators to contact him via e-mail or his personal cell phone number should they have any follow-up questions.

Three days after his termination and e-mail to the DOJ investigators, McCarty e-mailed 143 separate e-mail addresses an eight-page, self-described “letter to the world” detailing his numerous and varied concerns about KCPD. The e-mail also included 372 pages of attachments consisting of internal e-mails and memoranda from his time at KCPD. E-mail recipients included the governor, state legislators, the attorney general, prosecutors, public defenders, sheriffs, private attorneys, members of the media, and other individuals McCarty deemed “stakeholders” of KCPD. The letter appeared on modified KCPD Office of General Counsel letterhead to which McCarty had access by virtue of his prior employment there. He modified his title on the letterhead to read “Former Associate General Counsel.”

The contents of the letter criticized the interim chief of police, KCPD’s general counsel, the city’s Board of Police Commissioners, and the police department as a whole. McCarty condemned KCPD’s handling of internal complaints and personnel matters and its approach to Brady/Giglio disclosures and Sunshine Law requests, and he called on the police board to seek the resignation of or to terminate certain individuals. McCarty’s letter also previewed some of the documents contained in the 372-page attachment, which he gathered while employed at KCPD. As McCarty acknowledged in the letter, “most” of these internal documents pertained to McCarty’s claims that his supervisor was creating a hostile work environment. The attached documents included internal e-mails with legal advice provided by the general counsel’s office to KCPD about an array of topics and cases; detailed information regarding employees’ disciplinary investigations and the discipline each individual employee received; and McCarty’s detailed notes generated during his time at KCPD that he e-mailed to himself. Like his e-mail to the DOJ investigators, McCarty encouraged the recipients to make a Sunshine Law request of “ALL” of his e-mails. Prior to sending this e-mail, McCarty did not receive informed consent from KCPD to disclose this information. McCarty’s “letter to the world” subsequently received media coverage in the Kansas City area.

Violation

McCarty violated Rules 4-1.9(c)(1) and 4-1.9(c)(2) when he revealed information related to his representation of his client, KCPD, and used that information to KCPD’s disadvantage. McCarty testified during the DHP hearing that his client was KCPD, and he acknowledged his duty of confidentiality in his e-mail to the DOJ investigators, stating:  “until now, I was unable (owing to my ethical obligations as their attorney) to speak out.” McCarty, however, failed to recognize his continuing ethical obligations to his former client under Rule 4-1.9. McCarty’s briefing conceded “his December 2022 letter and omnibus exhibit included client-related information.” For example, McCarty disclosed an e-mail documenting the legal advice he gave to KCPD regarding the disciplinary investigation of a police officer; in another e-mail, he disclosed he was asked to, and did, provide legal advice about the legal requirements for responding to a request for administrative investigation records. McCarty explicitly stated in his “letter to the world” that the attached documents were obtained by virtue of his position representing KCPD.

McCarty’s e-mail to DOJ investigators and his subsequent letter also establish he used the information related to his representation of KCPD to KCPD’s disadvantage. He explained he included these internal documents to support his allegations of “misbehavior and wrongdoing” at KCPD. While McCarty asserted his actions may ultimately be a net positive if the letter’s recipients worked together to “resuscitate” KCPD, the immediate impact of his disclosures and disparaging commentary was to undermine the public’s confidence in his former client and incriminate KCPD in the DOJ’s investigation.

McCarty’s “letter to the world” highlights the information he disseminated was not generally known either. In fact, the very purpose of that e-mail was to release information not generally known to individuals outside KCPD. He wrote: “I did this because I knew early on that at some point in the future, the public deserved to know what was going on at KCPD from the perspective of an insider at the highest level of the organization.” Undoubtedly, McCarty disclosed this information without KCPD’s informed consent or implied authorization in order to carry out representation. Accordingly, this Court finds McCarty violated Rules 4-1.9(c)(1) and 4-1.9(c)(2).

Defenses

McCarty argues he was legally authorized to reveal information relating to his representation of KCPD. He asserts three justifications for his disclosures: (1) he was required to report unlawful conduct to his organizational client pursuant to Rule 4-1.13(b); (2) the disclosures were permissible under Rules 4-1.6(b)(4) and 4-1.9(c) because he was seeking to comply with other law; and (3) he is protected from discipline for speaking out about issues of public concern under the First Amendment and Missouri’s public-employee whistleblowing statute.

The court

While McCarty may have believed KCPD was not properly releasing information and evidence subject to Brady and Giglio and he may have been motivated to release the information he disclosed to reveal what he perceived as improper policies and procedures, he most certainly was not compelled or required to do so under the holdings in Brady or Giglio or the United States Constitution. McCarty cannot shield himself from the Rules of Professional Conduct under the guise of promoting and pursuing the rights guaranteed to criminal defendants as enshrined in the constitution. As important as these rights may be, it does not compel him or any other lawyer representing a person or entity in a non-criminal prosecution to disclose confidential client information. This simply is not an exception to the sacrosanct rule prohibiting disclosure of information relating to the representation of a client under Rule 4-1.6.

First Amendment

When he took this oath, McCarty swore he would conduct himself in accordance with the Rules of Professional Conduct – including Rules 4-1.6, 4-1.9(c)(1), and 4-1.9(c)(2), which prohibit disclosure of “information relating to the representation of the client.” Any rights McCarty had to engage in political speech as a citizen or a government employee were limited on that fateful day in accordance with the Rules of Professional Conduct. McCarty, therefore, cannot ignore his oath and claim his First Amendment rights protect him from the Rules of Professional Conduct.

Closing note

Whether the disclosures were the acts of a disgruntled, recently terminated employee or of a dutiful public servant, McCarty knowingly disclosed client information in violation of his sworn duty of confidentiality. No matter how noteworthy his disclosure may have been, it does not justify violating his sacred duty to his client. If a client cannot trust its lawyer to keep in confidence the information it has shared, then the legal representation is irreparably compromised. This is especially true in representation of public entities. If a public entity cannot seek advice from its lawyer without risking dissemination of shared information to the public and beyond, then the public entity will no longer possess the trust and confidence to seek its lawyer’s advice at all. Such an outcome is directly contrary to what this Court wants public entities, including KCPD, to do. The public benefits from public entities seeking advice and counsel from trusted attorneys. To ignore McCarty’s serious breach of client confidentiality would irreparably damage the legal profession, public entities, and the public’s trust in both.

Sanction

After considering all the facts, this Court finds McCarty violated Rules 4-1.9(c)(1) and 4-1.9(c)(2) of the Rules of Professional Conduct. His disclosures of confidential client information were not required or warranted under the rules, and his disclosures were not protected by the First Amendment or Missouri’s public-employee whistleblowing statute. Considering McCarty’s violations and all aggravating and mitigating factors, McCarty is suspended indefinitely from the practice of law with no leave to apply for reinstatement for one year to protect the public and the integrity of the legal profession.

(Mike Frisch)