On April 26, the Texas Young Lawyers Association told president-elect candidate David Courreges to cease all campaigning. The move came after his opponent, C.E. Rhodes, filed formal complaints with TYLA nominations chairwoman Cori Harbour, alleging that multiple people posted pro-Courreges messages on Facebook, an Austin publication ran a story on Courreges, and an Austin law firm endorsed him in a firm newsletter and on Facebook.
Rhodes had sought to get Courreges disqualified, or for Courreges' votes from Austin to be thrown out, but a TYLA nominations appeals committee on April 28 rejected that proposal. Voting in the election ends at 5 p.m. on May 2.
According to e-mails and documents Texas Lawyer obtained from the State Bar of Texas after an open records request, since the end of March there have been hundreds of back-and-forth e-mails in the TYLA president-elect race, most of them from Rhodes, alleging violations of election rules found in the TYLA Policy Manual.
Some of those unaffiliated with either campaign who have become embroiled in the controversy say TYLA's election rules violate their right to free speech. The brouhaha also raises questions about how TYLA election rules address the use of Facebook and other social media sites. Courreges argues the TYLA Policy Manual does not include a Facebook rule.
TYLA President Jennifer Morris says the rules exist to make the election fair for president-elect candidates. "The purpose of us having some rules that guide our candidates is to make sure we have a level playing field," says Morris of Carrington Coleman Sloman & Blumenthal in Dallas. She adds, "The problem is when you have a lawyer from a very large firm running against a lawyer from a very small firm or a solo firm. There are inequities built into that race."
"The rules are simply what they are. It's my position that it's my job to comply with them," says Rhodes, U.S. operations and compliance counsel at Baker Hughes Inc. in Houston.
Courreges, of De Leon and Washburn in Austin, says he also followed TYLA's rules. "The election rules are straightforward on what I can and can't do as an individual. I have followed those to the letter. That's what I can do," says Courreges.First Amendment Drama
TYLA election rules say candidates can only use their own personal websites to promote their campaigns. The rules do not address the use of social media in campaigns.
"Nominees are responsible for compliance with the TYLA election rules by persons assisting with their campaigns," says Rule 5.2 (Z) of the TYLA Policy Manual.
Multiple times, after Rhodes informed Harbour that people posted endorsements of Courreges on Facebook, Harbour ruled that Courreges violated Rule 5.2 (Z) and had to ask those people to delete their posts.
Monty Exter, government relations specialist at the Association of Texas Professional Educators and one of Courreges' friends, made a Facebook post in early April that said: "Vote Exter for TYLA Director. P.S. Vote Courreges for TYLA President," according to an April 2 complaint Rhodes submitted to Harbour.
Exter says he complied with Courreges' request to delete the post, and he was "upset" he had accidentally harmed his friend's campaign. He posted his comment without Courreges' knowledge, he says, and didn't know it was against the TYLA election rules.
"I think that's frankly a little silly of a rule to say other folks of their own accord can't put their own ideas in that medium. Frankly, that smacks as an abridgement of free speech," Exter says.
Morris says Facebook was just becoming popular during her 2009 campaign for president-elect. 2011 is the first time social media use has become a major campaign issue, she says. The TYLA rules don't address social media directly, but Morris says that since more and more lawyers use sites such as Facebook, the rules may need to change. "We are going to be looking at the social media rules in the coming summer to make sure we're keeping up with the times," Morris says.
Kat Hinson, spokeswoman of the Austin Bar Association and Austin Young Lawyers Association, echoes the concern that TYLA's rules violate free-speech rights. Austin Lawyer, the Austin bar's magazine, published an article about Courreges in the April issue. Rhodes filed a complaint with Harbour on April 22 claiming the article was an inappropriate endorsement of Courreges that violated the election rules.
Hinson says Austin Lawyer has published articles in the past about members running for elected positions at the State Bar of Texas and TYLA and the articles have never been the subject of complaints. "It is news to our members if another member is running for a statewide office. It's a freedom of the press issue," says Hinson, who is pleased that TYLA may consider revising its rules.
"What we or any lawyer prints in a publication, or on e-mail, or on social media, really cannot be dictated by an outside institute," Hinson says.
TYLA nominations appeals committee chairwoman Sylvia Cardona says she thinks it's rare for local bar associations to publish articles focusing on just one candidate instead of both. Some bar groups' policies even expressly prohibit endorsing a candidate, she says.
"I think that we need to always look at the balance between what some people may perceive as violating their rights, to comparing that with how do you keep this process fair," says Cardona, a partner in Langley & Banack in San Antonio. She notes, however, that it's not uncommon for TYLA candidates to file complaints against each other.
According to the records Texas Lawyer obtained under the Texas Public Information Act, Rhodes and Courreges have fired off e-mails since March 28. The candidates sent their concerns to Harbour, who then made decisions about remedies to ensure the election is fair for both sides. Rhodes and Courreges could accept her determination or appeal the decision to the TYLA nominations appeals committee.
Harbour, an El Paso solo, did not return a telephone call seeking comment.
On April 2, Rhodes sent Harbour an e-mail with a formal complaint that two people, including Exter, had posted comments on Facebook about Courreges.
"Undoubtedly, the harm is done — the cat is now out of the bag. FB posts often spread like wildfire. The more time passes, the faster it will spread and more voters will see the post and could potentially be improperly influenced by the posts," Rhodes wrote. As a remedy, he asked Harbour to tell Courreges to ask the people to delete their Facebook posts. He also wanted permission to ask one of his own friends to post a "similar endorsement" about Rhodes on Facebook that would potentially reach as many people as the posts about Courreges.
On April 4, Harbour decided Courreges had violated the election rules but refused to allow Rhodes' friend to post about him on Facebook. She suggested another remedy: "[I]f David was planning to send out three blast emails over the next few weeks, I am now limiting that to two blast emails," Harbour wrote. She added, "I expect you both to monitor FB to ensure we don't have any further issues."
Later that evening, Courreges replied via e-mail to accept Harbour's ruling and limit his e-mails.
On April 21, Rhodes e-mailed Harbour a complaint about the Austin Lawyer article featuring Courreges. Rhodes alleged the article violated a TYLA rule that prohibits candidates from receiving endorsements from local bar associations.
He added to the complaint on April 22, writing, "With only a week left in the race, I am left with no other alternative to remedy the harm that has been and will be done to me, other than seeking disqualification of Courreges."
Later in that e-mail, he wrote, "Alternatively, I request that all of the votes from Austin for Courreges from the date of the first FB post be thrown out and not counted, as they may likely be tainted by the impermissible conduct."
Seeking a remedy in his complaint, Rhodes asked Harbour to allow him to contact the Houston Bar Association and the Houston Young Lawyers Association to solicit a similar article, or an e-mail to their members. She agreed to allow Rhodes to call the groups, which he did, but they declined because their publication had gone to press and sending an e-mail endorsing a candidate would violate their bylaws.
Kate Sim, executive director of the Houston Bar Association, confirms Rhodes called her saying, "I explained our policy was we do not run stories in support of either candidate."
Courreges objected when he learned Rhodes had called the Houston groups.
Later on April 22, Harbour e-mailed both candidates to respond to Rhodes' complaint: "Due to repeated violations of the rules by members/groups in Austin, David's campaign is shut down immediately. For the remainder of the campaign, David (and anyone working on his behalf) is not allowed to email, call, send letters, post on Facebook, deliver brochures, etc.," Harbour wrote. She added that she would try to find another group that would send information about Rhodes.
Courreges wrote back offering to use the $4,000 left in his campaign account to print and mail a postcard about Rhodes to Austin lawyers who would have received the Austin Lawyer article featuring Courreges.
But on April 23 Courreges appealed Harbour's decision shutting down his campaign to the TYLA nominations appeals committee.
On April 25, Courreges filed a formal complaint with Harbour, alleging Rhodes had violated several rules regarding permissible campaign mailings by bar groups when the Corpus Christi Bar Association sent an e-mail to members saying Rhodes would visit during a monthly meeting. Courreges also took issue with Rhodes calling the Houston bar groups.
Also on April 25, Courreges e-mailed his position on his appeal. He wrote he had conducted "all due diligence" to follow the rules and he said the "Facebook Rule" wasn't officially written in the TYLA Policy Manual. "The State Bar of Texas Election is currently being freely discussed on Facebook and other media outlets without protest by the candidates or punishment by the State Bar of Texas," he wrote.
Kelley Jones King, deputy executive director of the State Bar, did not return a telephone call seeking comment.
The nominations appeals committee met on April 26 and decided to uphold Harbour's decision that Courreges must stop campaigning, but said he would not have to contact potential supporters about the committee's ruling or the conclusion of his campaign. The committee overturned Harbour's decision that she would attempt to find another group to send information promoting Rhodes. On Courreges' complaint, the committee upheld Harbour's decisions that the Corpus Christi bar e-mail was not an endorsement of Rhodes and that no violation occurred in Rhodes calling the Houston bar groups.
A person who answered the phone at the Corpus Christi Bar Association declines comment.
Although he had stopped his own campaign efforts, on April 27, Courreges e-mailed Harbour to inform her someone else had posted something about him on Facebook, without his knowledge or consent.
Rhodes filed a complaint against Courreges on April 27, alleging that Austin law firm Hay Compere had published a firm newsletter endorsing Courreges, and members of the firm had posted on Facebook endorsing him.
Hay Compere partner John Hay confirms the newsletter and Facebook postings about Courreges. "My opinion was, let's get out the vote. Here is who we are supporting. We didn't know that violates any rules. It just surprised us something like that would be limited."
He adds, "The most important thing is David contacted us as soon as he realized it had happened and we took" the Facebook post down.
Harbour found Courreges had violated the rules, and said he must contact the Facebook posters to "demand that they comply with these rules immediately." She also said Courreges needed to contact all his supporters to inform them again about the rules.
In her April 27 e-mail, Harbour proposed a remedy: "C.E. is allowed to solicit a law firm (or firms) of his choosing to send out a similar endorsement on his behalf to 750 attorneys (the number of FB friends of Hay Compere) without regard to the personal acquaintance rule."
In a letter on April 27, Rhodes appealed the remedy because he said he didn't want to be allowed to break the rules himself. He expressed his desire to see Courreges disqualified, or for the committee to throw out the Austin votes for Courreges.
The committee met late on April 28 to decide the issue. In an e-mail at 11:10 p.m., Cardona wrote the committee had decided to uphold Harbour's decision — the e-mail didn't mention Rhodes' requests to disqualify Courreges or throw out his Austin votes.
Cardona says she can understand the complaint process could look unprofessional or unsportsmanlike to outsiders, but part of that is because the rules require candidates to put all complaints in writing and specifically cite the rules they believe were violated.
Morris, current TYLA president, says she admires Rhodes and Courreges because they truly care about the association and its mission. She notes the pair are "good friends."
"When you get in the heat of competition and you're lawyers, you get competitive. That's what has naturally happened," Morris says. "I think they've kept it civil and professional. The issues that have occurred have been due to third parties, not the actual candidates."
She adds, "[I]t doesn't necessarily mean a candidate has done something wrong or bad."
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