Question

I have seen many lawyers make nasty comments on social media to attack the reputation of another person. Are these comments subject to review under the Rules of Professional Conduct?

Answer

There is a delicate balance between an individual’s freedom of speech under the U.S. Constitution and the regulation of lawyer conduct by the Wisconsin Supreme Court under the Rules of Professional Conduct. Because of this tension, the court must review and analyze each situation to assess whether a lawyer has “crossed the line.”

There is always the potential for scrutiny of lawyer conduct if a grievance is filed with the Office of Lawyer Regulation (OLR). The rule that might often apply is SCR 20:8.4(g), which addresses lawyer misconduct and provides that lawyers must not violate the attorney’s oath. The attorney’s oath is found in SCR 40.15 and provides that a lawyer will not engage in “offensive personality and [will] advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which [the lawyer is] charged.” Some lawyers have been prosecuted by the OLR for a violation of the attorney’s oath, but that has only occurred in extreme situations. It is uncommon that a social media post would rise to the level of being conduct warranting OLR review but much would depend on the nature of the commentary.

Other rules could apply in limited situations. A lawyer who engages in this type of conduct could be in violation of SCR 20:3.5(d), which prohibits a lawyer from “engaging in conduct intended to disrupt a tribunal” if the focus is on the conduct of a judge. Similarly, statements involving court officials could be a violation of SCR 20:8.2(a), which prohibits a lawyer from “making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, ajudicatory officer or public legal officer, …”

Further, a lawyer may not engage in conduct such as “filing a suit, asserting a position, conducting a defense, delaying a trial or taking other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another” (SCR 20:3.1(a)). This rule could apply in certain situations of malicious statements by a lawyer.

In many cases, the potential of an OLR investigation is not as important a consideration as are the potential public relations effects if a lawyer engages in unprofessional conduct when using social media. There are potential legal ramifications if the commentary is directed at a specific person and causes damage to the reputation of that person, but more often, the commentary is made about a social issue, in which case the speaker’s free-speech rights would be weighed more heavily. It is the potential for damage to the lawyer’s own reputation or persona that should be the primary factor when deciding whether to make these types of comments.

All lawyers should also be concerned about the image of lawyers in social media and in the public. Lawyers should be concerned about professionalism and maintaining the professional image of the legal profession in every way possible. Engaging in unprofessional criticisms or commentary on social media does not help the image of lawyers in our communities.

» Cite this article: 94 Wis. Law. 39 (December 2021).