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Hursey disciplinary opinion opens door to unwarranted oversight of attorneys’ social networking usage

Having read today’s Supreme Court opinion, In the Matter of Michael T. Hursey, Jr., 395 S.C. 527, 719 S.E.2d 670 (2011), I would like to kick Mr. Hursey’s behind for his failing to defend his 1st Amendment right to free expression in his disciplinary proceeding.  Prior to Hursey, I might have used a stronger term for what I’d like to do to Mr. Hursey’s posterior but the Hursey opinion seems to indicate it might be a disciplinary offense if I did.

Hursey was disbarred for doing the sort of things that usually get South Carolina attorneys disbarred: mishandling client funds; failing to do the work he was retained to do; ignoring the Office of Disciplinary Counsel (ODC); abandoning his practice without informing or protecting his clients.  Assuming Hursey’s goal was disbarment, he exhibited extra creativity in taking and apparently discreating all of his files and bank records after he was placed on Interim Suspension.

Hursey exhibited additional creativity in posting profane and nude content on his MySpace page, which also listed “the name of his law firm and the city of its location.”  Included in his comments on his MySpace was a claim that he would “‘take the 5th’ in regards to what drugs he had done in the past as well as which drugs he had done in the past week.”

These MySpace postings were part of the hearing panel’s rationale in recommending Hursey be disbarred.  The Supreme Court agreed with the hearing panel’s recommendation.  The Supreme Court’s analysis of the proper sanction doesn’t explicitly mention his social networking activities, focusing mainly upon Hursey’s failure to perform the work he was retained to do, his mishandling of client funds, and his indifference to the disciplinary proceedings.  I cannot see how Hursey could have received a lesser sanction absent his social networking activities, as the hearing panel recommended disbarment and Hursey didn’t challenge it.  Yet, because of Hursey’s indifference, it is unclear whether any nudity or profanity on a social networking site subjects an attorney to discipline.

I think every attorney knows that bragging about illegal drug use in a social networking site wouldn’t endear that attorney to the Supreme Court or the ODC.  I wouldn’t dispute that publicly bragging about illegal behavior violates Rule of Professional Conduct 8.4(e) by “engaging in conduct prejudicial to the administration of justice.”  I will assume that “nudity” doesn’t refer to posting pictures of myself topless at the beach (given my physique that just shows bad judgment).  Somehow I don’t see the ODC coming after me for posting LMFAO parodies to my Facebook page.  However, I suspect Hursey will leave attorneys more cautious than me too scared to even post a simple “LMAO” or “WTF?” on their social networking sites.  Because Hursey couldn’t be bothered to defend his 1st Amendment rights in this disciplinary proceeding, all South Carolina attorneys now need to be more cautious in their social networking.

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