An appellate court attorney in Kansas was admonished after sending out a series of tweets regarding an highly-publicized matter being heard in the court. She was also fired.
It’s a good reminder to think twice (or three times . . .) before hitting the “tweet” button. But it’s also a reminder that bar disciplinary authorities don’t always pay much attention to first amendment issues when imposing discipline.
The tweet that caused the most consternation was one that read “I predict he will be disbarred for a period of not less than 7 years.” Given that the tweeter was a court employee, it’s not a stretch to see this tweet as a violation of Kansas RPC 8.4(e), which prohibits stating or implying the ability to improperly influence a government official.
Likewise, it’s easy to see why the authorities imposed discipline under Kansas RPC 8.4(d), which proscribes behavior interfering with the administration of justice. After all, the tweet, when brought to light, caused no small amount of motion practice and general kurfuffle in the proceedings.
But in a bit of piling on, the Kansas authorities also found that the tweet violated Kansas RPC 8.4(c), which prohibits dishonesty, fraud or misrepresentation. The grounds for so doing was that the author of the tweet had no “legal or factual basis for making such a prediction.”
It would be nice if all opinions – particularly those expressed by lawyers – were so solidly grounded. But that aspiration is a far cry from a regulation requiring that those expressing opinions must have a sound basis in law or fact in order to avoid discipline. Even attorneys have a first amendment right to go off half-cocked.