© Vicki Cronis-Nohe | The Virginian-PilotProminent "no cellphones" signs were on display outside of General District Court in Virginia Beach on July 3, 2013.
At issue is whether a Facebook post of a photo taken inside a courtroom this year was a harmless joke or a damaging misrepresentation, according to the lawsuit and response, filed in Circuit Court this spring.
The case also highlights the issues that courts must weigh in deciding whether to allow cellphones and other electronics inside and what limits to put on their use.
The lawsuit centers on the post, included in the court file, which shows defense attorney Jason Swango at the bench in General District Court, flanked by a police officer, a bailiff and his client in a city jail jumpsuit.
It claims defense attorney Daniel J. Miller on Feb. 1 published the photo to Facebook, tagging Swango with the caption: "Notice the stain on this guys jail suit when he realized who he had as an attorney." Miller also commented, "Based upon what I saw I think Jason Swango should've paid him," according to a screen grab of the post included with the lawsuit.
The photo drew a handful of comments.
Swango claims the post included untrue information that hurt his reputation and is suing Miller and his law firm for $600,000 in damages. Miller, in his response to the lawsuit, says he was expressing his opinion, which is a protected form of speech, and asks the court to dismiss the claim.
Swango and his attorney, Barry Taylor, disagree with that argument.
"We do not believe it's opinion statements because they can be proven whether they're true or false," Taylor said. "This conduct is just outrageous."
Miller's attorney, R. Craig Gallagher, said the post was not meant to defame anyone.
"This was just intended to be some good-natured jesting with a colleague," he said. "There was no ill-will or intent to harm anybody."
Both sides said the photo has been taken off Facebook and that there is no history of problems between Swango and Miller. They do not have a hearing date set, according to online court records.
The dispute and other problems with use of electronics have had repercussions for all the attorneys practicing in Virginia Beach General District Court, as well as the police officers, bond agents and others on the select list of people allowed to bring cellphones and other devices into the city's courthouse.
The general public is not allowed to have those items in the building.
About two weeks after the post, the court's judges issued an order requiring all cellphones and electronics to be turned off in General District courtrooms, citing "numerous abuses of the privilege, including texting and reading emails during hearings and trials... photographing a judge during a trial, use of electronic games during court, and other open, obvious and abusive use."
They eased the order in March, ruling that tablets and laptops may be used on silent or quiet mode and "as inconspicuously as possible" for court-related business. Cellphones still must be turned off in the courtroom.
Chief Judge Gene Woolard said the incident involving Swango and Miller contributed to the change in policy.
"Yes, it did have something to do with it, but it wasn't the sole reason," Woolard said. "It was more the last straw."
Both Swango and Miller are in good standing with the Virginia State Bar, which regulates and disciplines attorneys.
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