If I’ve said it once, I’ll say it again: think before you post. This recommendation applies to everyone, of course. But if you’re a lawyer, then you’d best heed my advice and tread lightly when posting commentary online on social media sites or elsewhere. Otherwise you run the risk of running afoul of your ethical obligations and unleashing the wrath of your bar’s disciplinary body. At the very least, you’ll face embarrassment and at the worst you may be disciplined or even barred from the practice of law altogether.
If you’re not yet convinced, then maybe the results of a very recent South Carolina disciplinary action will do the trick. In the Matter of David Paul Traywick, Opinion No. 28037, which was filed in June 2021, an attorney faced the music for his online behavior to the tune of a 6-month suspension.
At issue in this opinion were 12 different postings made on Facebook by the attorney in question. Notably, the Commission on Lawyer Conduct received a significant number of complaints about his actions: “Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of ‘public,’ meaning his posts were visible to anyone, not just his Facebook ‘friends,’ and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.”
In its opinion, the commission focused on two particularly inflammatory statements, both of which were “not expressive; they (we)re expressly incendiary … and had the effect of inciting gender and race-based conflict beyond the scope of the conversation … (and the) fact Respondent is a lawyer exacerbated this effect.”
One of the statements was about tattoos and his extreme dislike for both tattoos and people with tattoos, particularly “these females.” The other related to the murder of George Floyd, wherein he insinuated — by using very derogatory language — that Mr. Floyd’s life didn’t matter and as proof of that fact, he noted that the stock markets went up in the days after his murder.
The commission explained that both statements were quite troubling, and that the posting regarding Mr. Floyd was of particular concern since it “was intended to incite intensified racial conflict not only in Respondent’s Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.”
For that reason, the commission found that because of the attorney’s actions and the extremely inflammatory nature of his postings, he should be suspended from the practice of law for 6 months and would also be required to complete “at least one hour of diversity education … a comprehensive anger management assessment … (and) undergo an evaluation through the Lawyers Helping Lawyers program …” In other words, they determined that those postings were strong evidence that he had a multitude of issues that needed to be addressed.
So my dear readers, don’t be like David. When you’re interacting online and find yourself particularly upset about a random issue and decide that you’d like to share your ire with friends near and far, please, for the love of all that is holy, take a deep breath. Then take another one, and then one more. Finally, ask yourself if it’s absolutely imperative that you share your frustration with the world. The answer is almost certainly “no.”
But if for some reason you should determine that the answer is “yes” and your opinion relates to a particularly divisive topic, perhaps consider asking your life partner, or even one of your kids, for their opinion as to whether you should post it. Then maybe ask your goldfish or your cat.
By the time you’ve solicited these opinions, you’ll likely have calmed down a bit, and probably won’t care as much about the issue as you did 10 minutes earlier. In which case, don’t post about it. Put your keyboard down, shut your laptop, and slowly step away from your desk. And go watch a movie or read a book. Maybe even take a walk.
Whatever you do, I beg of you, don’t post that rant online. Trust me; it’s for the best. One day you’ll thank me.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software. She is the nationally recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].