You may recall that not too long ago I wrote a bit about a Tennessee Supreme Court opinion that I thought was a bit wrongly-framed from its opening sentence. It was the one that was really about why lawyers shouldn’t help people try to plan and cover up crimes but started:
“This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”
To drive my point about the wrongness of the Tennessee court framing that situation that way, here is a development out of South Carolina that more rightly would deserve that kind of dramatic introduction in the opinion. Instead, the South Carolina Supreme Court opens its opinion issued today in In re Traywick in a more prosaic fashion:
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.
For the conduct that the Court goes on to describe in this opinion, the lawyer was placed pretty immediately on an interim suspension on June 12, 2020. So, as of this month, he’s essentially already been suspended for a year. That becomes important to know because the opinion details that the lawyer was consenting to a six-month suspension to resolve the matter. Thus, with the suspension being made retroactive, the lawyer appears to be immediately available to resume practicing.
But the Court also imposed a number of additional requirements on the lawyer that will continue for up to a year from the issuance of the opinion. Before exploring those, let’s address what it was that the lawyer posted on Facebook that led to this result.
Apparently there were 12 instances of writing really offensive and inflammatory stuff. A reader of the opinion though will only learn about 2 of them because the Court announces that the two instances alone sufficiently justify the 6-month suspension.
I’m not going to post what the lawyer actually wrote because… well, life’s too short and the internet is filled with enough toxic stuff to have to read already.
The two instances range from apparently a very strong opinion about what it means if people have a tattoo to writing insensitive, inhumane, and pretty-hard-to-see-as-anything-other-than-racist thoughts about the value of George Floyd’s life. You can go read the opinion if you really want to know, but, while it isn’t near the worst stuff you can go read on the internet, it’s still bad.
The opinion also stresses that the respondent disclaimed any interest in making a First Amendment defense to the disciplinary proceedings, which I know will have lots of folks asking questions about why someone in that position would do that. I don’t have any real insight, but one guess would be that if you were trying to distance yourself from what you said – perhaps attempting to chalk it up to being in altered state of mind and saying the views aren’t ones you actually hold – then trying to argue these were protected expressions of your opinion wouldn’t actually be something that would interest you.
As mentioned at the outset, whether this lawyer actually is this kind of person or was this kind of person or only plays at being so offensive of a fellow online, his suspension is purely an “own goal.” Not only because the lawyer was weighing in on things that nobody really was looking for him to tell them about (of course, that is sort of the sine qua non of social media participation…) but also because he didn’t have the minimum level of commonsense to use some privacy settings on his Facebook page so that only his “friends” would see what he wrote.
In addition to having been suspended, the lawyer’s self-inflicted wounds now include the following:
- complete at least an hour of diversity education by June 2022
- complete “a comprehensive anger management assessment with a licensed mental health doctor or therapists” within the next 3 months
- be evaluated by South Carolina’s LAP-type program within the next 3 months and comply until June 2022 with whatever that organization recommends he do based on the assessment
- provide the Court with periodic reports confirming he’s doing these things as well as a final report from his providers with assessments by June 2022
The last point worth mentioning is that the opinion does not discuss any ethics rule at all and, instead, the discipline is imposed for violating the Lawyer’s Oath in South Carolina as well as a disciplinary enforcement rule that allows discipline for “conduct tending to bring the courts or the legal profession into disrepute.”