In several Socially Awkward resource pages, I’ve highlighted problems that can come from anonymous commenting that involves deception or is related to pending matters an attorney is involved with. But what if the commenting is merely rude, mean-spirited, or sexist?
Could Above The Law even exist if rude comments raised ethical concerns for lawyers?
Apparently one lawyer thinks they should. University of Denver lawprof Nancy Leong has asked Illinois bar regulators to investigate the ethical propriety of comments on her blog posts that she believes were made by an Illinois attorney under the pseudonym “Dybbuk.”
The comments don’t involve pending matters or self-interested fabrication. The examples I’ve seen run to juvenile humor, sexism and slams on law professors. They may reveal an unhealthy interest in Professor Leong, latent rascism, sexism, or both. Or perhaps “Dybbuk” has discovered a soft target that reacts in a way he(?) finds gratifying.
But again – would this merit an ethical violation, assuming Dybbuk is a lawyer?
Jim Grogan, Chief Counsel of the Illinion ARDC (and one of the most pragmatic, reasonable bar regulators you’ll find), hones right in on the First Amendment issue:
When does personal life stop and the ethics code applies?
Indeed. And it doesn’t stop short of what “Dybbuk” has written here. While some might argue that considerations of civility should come into play, it’s important to recognize that there’s no free-floating requirement that attorneys be civil. While a lack of civility could raise ethics issues in an ongoing matter (e.g., under ABA Model Rule 8.4(d) as being prejudicial to the administration of justice), that’s a far cry from anonymous blog commenting.
And that anonymity is an important factor. A lack of civility is a problem within an adversarial proceeding because the advocates are known, are representing clients, and may create real-world problems for their clients through a lack of civility.
But anonymous commenting on a blog? That’s a well-known milieu for trollish behavior, and – absent threats, defamation, or the like – is a risk to nothing but the sensibilities of the blog post’s author.
This isn’t an endorsement of “Dybbuk’s” sophomoric comments, but rather the right of the commenter to make them without fear of government involvement.
And as with so many matters involving speech, it’s a problem best handled via the “more speech” remedy. The First Amendment should prevent Dybbuk from government consequences to his license, but it doesn’t shield him from professional or social consequences. Professor Leong is sure enough she’s found her man to ask for the bar to take action. The better – and more speech-affirming – option would be to simply expose him publicly. Of course, taking such a course would presume that Professor Leong is a strong defender of First Amendment rights.
Update: Carolyn Elefant – a practicing attorney and long-time blogger – has just posted a great perspective on this.