Play nice on social media, y’all

When Charleston lawyer Gregory S. Forman posted a blog on his firm’s website with a headline that referred to a certain part of the male anatomy, he never imagined that he could be running afoul of state ethics rules.

Forman hasn’t gotten into any trouble for the blog, which was titled “Perhaps he has a 2,000 mile long penis” and discussed whether cyber flirting constituted infidelity. But a state disciplinary counsel said he could have received a warning letter if someone filed a complaint.

That surprised Forman, as did a recent ABA Journal report that South Carolina’s Office of Disciplinary Counsel was seeking sanctions against an unnamed lawyer who reportedly wrote insulting online rants about women, Hispanics, “midgets” and other groups of people.

The case is before the South Carolina Supreme Court and could be the state’s first in which a lawyer is sanctioned for a blog. So far, the court has only disciplined lawyers for uncivil emails and letters, but never for social media. And those cases involved personal attacks or communications between opposing counsel.

That the blogging case appears to center on generally vulgar statements that weren’t directed at any one person in particular concerns Forman. He believes that the disciplinary office is trying to suppress protected free speech – and then what’s to stop it from going after a lawyer for criticizing a judge or court policy?

“Monitoring attorney blogs for incivility will stifle much important and protected speech,” he wrote in his blog. “The Office of Disciplinary Counsel’s attempt to stifle lawyer speech because a lawyer’s viewpoint brings the legal profession into disrepute smacks of the worst sort of censorship – censorship that prevents speaking truth to power.”

South Carolina is among about half a dozen states at the forefront of a crackdown on bad behavior in the legal community. It also is one of a few jurisdictions that have inserted a civility pledge in the lawyer oath for bar admission.

That pledge, which calls for “fairness, integrity, and civility” in the courtroom and all written or spoken communications, only applies to interactions between opposing counsel. Lawyers cannot violate the oath by blogging.

Instead, state Supreme Court disciplinary counsel Lesley M. Coggiola argues that lawyers who misbehave on social media can be sanctioned for bringing the legal profession into disrepute under the Rules of Professional Conduct.

She added that lawyers are free to spout off about whatever they want on their personal websites. But when they identify themselves as lawyers they give up some of their First Amendment rights and open themselves up to disciplinary action.

“If they’re doing it as a person, there’s nothing we can do about it,” Coggiola said. “No one’s saying you shouldn’t use Facebook. Just remember that when it lists you as a lawyer or links to your identification as a lawyer, then you’re representing the profession.”

What’s not so clear is the standard for determining whether a lawyer should be disciplined for incivility. The process is indistinct and subjective, simply because what’s offensive to one person may not be bothersome in the least for another.

In Coggiola’s view, lawyers are likely out of line if they use “vile language, horrible language or name calling.” Criticizing the court system is not grounds for discipline, she said, but badmouthing a judge or colleague might be.

“Lawyers say it’s not fair that the Supreme Court hasn’t defined civility. And I say, ‘Where was your mama?’” she said. “Sometimes it’s very frustrating. Sometimes you just want to say, ‘Come on. Most of us know how to behave. We know when we’ve been rude and uncivil.’”

Coggiola added that the disciplinary office doesn’t want to be a censor, it’s just trying to maintain civility among lawyers in the increasingly complex age of social media. But in doing so it risks crossing another type of line and being seen as free-speech trampling politeness police by lawyers like Forman.

“I think that if they ever tried to tell me that I can’t use penis in a blog,” he said, “I would civilly tell them to go to hell.”

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