Posts Deemed Incendiary and Not Free Speech
Although “mindful of” the attorney’s First Amendment rights, the court found that the posts were “not expressive; [rather] they are expressly incendiary.” The court found significant that the attorney’s Facebook page was public, meaning that anyone could read the posts. As the court observed, “the statements were intended to incite, and had the effect of inciting, gender and race-based conflict beyond the scope” of private interactions the attorney might have with Facebook “friends.” The court also noted that during the disciplinary proceedings, the attorney chose not to raise a First Amendment defense and admitted that the statements violated the Lawyer’s Oath.
The court was “particularly concerned” about the statements concerning Mr. Floyd, which the court found were “intended to incite intensified racial conflict not only in Respondent’s Facebook community, but also in the broader community of Charleston and beyond.” The statements about Mr. Floyd were deemed grounds for discipline under Rules 7(a)(5) and 7(a)(6) of South Carolina’s Rules for Lawyer Disciplinary Enforcement., which codify the Lawyer’s Oath and prohibit conduct “tending to bring the legal profession into disrepute.” The court ordered the six-month suspension and directed him to undergo diversity training and assessments by a licensed mental-health professional. It also ordered him to comply with all recommended treatments and provide regular treatment reports and affidavits of compliance.
A Spotlight on Attorney Mental Health
Litigation Section leaders are not surprised that this conduct led to disciplinary action. “Lawyers should be looked up to as beacons of fairness and impartiality,” states John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “Rants such as were described in the opinion are demeaning to the profession. Lawyers who demean the profession should be disciplined,” he explains. The attorney’s failure to raise a First Amendment defense was an effort to minimize the penalty, according to Barkett. “This lawyer was in damage-control mode,” he observes. “Raising a First Amendment defense is not evidence of a conciliatory and apologetic attitude.”
Other Section leaders observed that the timing of the attorney’s posts, at the outset of the COVID-19 pandemic and during the George Floyd protests, highlights the importance of managing mental health in times of high stress. “The timing of it to me is interesting,” opines Dr. Diana Uchiyama, Chicago, IL, cochair of the Section’s Mental Health & Wellness Task Force. “Why then? Why suddenly? We were in the throes of a pandemic. Mental health problems skyrocketed,” she notes. Dr. Uchiyama performs mental health and substance use assessments for the Illinois Lawyer’s Assistance Program and works with the Illinois Disciplinary Commission on diversion programs for people with mental health and substance use issues. She explains that various factors surrounding individual attorneys inform proper assessment and treatment. “As a lawyer-clinician,” she elaborates, “I would want to know: Is there a history of mental health problems? Of substance use problems? Of additional stressors that might be compounding these issues?”
The case also highlights a potential danger of social media, which is “easy to access, it’s easy to engage,” remarks Dr. Uchiyama. “It’s easy to get provoked, and it’s easy to make these heated declaratory statements,” she says. But regardless of the medium, “a good lawyer can express opinions in a neutral manner,” Barkett notes. “We should know how to express a view in a public forum that contributes to healthy debate and doesn’t demean the lawyer or the profession as a whole or embarrass other people,” he concludes.