An Attorney’s Consequences for Making Injudicious Comments on Social Media

In a 28 page decision issued earlier this year, which the Supreme Court of Tennessee described as “a cautionary tale on the ethical problems that can befall lawyers on social media,” the court increased a lawyer’s 60 day suspension from practicing law to a four year suspension because of comments the lawyer made on Facebook.  The comments instructed one of the attorney’s Facebook friends on how to shoot a person she had broken up with and to make the shooting appear to be one done in self-defense.

Although the Facebook posts were ultimately removed at the lawyer’s urging (in another Facebook post he made), screenshots captured by the potential shooting victim were brought to the attention of the county district attorney general, who, in turn passed them along to the Tennessee Board of Professional Responsibility (“Board”).  The Board investigated and found that the attorney’s advice about how to engage in criminal conduct and avoid arrest or conviction violated RPC 8.4 (a) and 8.4(d) of Tennessee’s Rules of Professional Conduct and, following a hearing, the Board’s hearing imposed a 60 day suspension of the lawyer’s license to practice law.

The Supreme Court of Tennessee reviewed the proposed Suspension Order pursuant to its own Rules and rejected the 60 day suspension because it “seemed inadequate.” The Supreme Court accepted briefs from the lawyer and the Board before deciding whether the Board’s decision should be modified.  Ultimately, the court found there was “ample evidence” to support the Board’s conclusion that the attorney violated the RPCs and should be subject to discipline. The Supreme Court modified the suspension “to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation” and required the lawyer to complete nine hours “of CLE focused on the ethical use of social media by attorneys.”

In reaching its decision, the Supreme Court found that the attorney “in fact offered advice on how to use deadly force and concoct a false defense.” His situation was made worse by then suggesting the posts be deleted to avoid leaving a trail that would reveal his advice and made “exponentially worse” by publishing his comments on Facebook – a very public forum on which his advice publicly fostered a distorted image of the role of lawyers.

The Supreme Court’s decision also issued cautionary advice to lawyers: “. . . attorneys in any setting – including on social media platforms – remain bound by the Rules of Professional Conduct . . . Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.”

            Lawyers in any jurisdiction, not just Tennessee, would be well-served to bear in mind the admonitions of the Tennessee court regarding attorneys’ uses of social media.

*       *          *          *          *

         For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.