Should “vile” blogging be a basis for lawyer discipline?

A news release posted yesterday on the South Carolina Judicial Department website links to a cover story in the ABA Journal, “You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession,” which profiles Lesley M. Coggiola, disciplinary counsel for the Supreme Court of South Carolina.

In this article, Ms. Coggiola notes the Supreme Court of South Carolina “has issued four or five opinions that are strictly on civility, including three in one year and one for a lawyer hitting an opponent in a deposition.”  She further discusses an interesting civility disciplinary issue regarding a blogging attorney:

By far, technology is cited most often as the foundation for boorish behavior. Coggiola says she feels old saying it, but she attributes a good deal of the problem to the ability of the everyday jerk lawyer to broadcast views online. “We’ve had some serious issues, and they’re all related to social media,” she explains. “Our court has already spoken on the First Amendment—you give some of that up when you become a lawyer. But we’re really struggling with a case sitting at the court right now. A lawyer is blogging, and it’s just vile, insulting everybody from Hispanics to women to ‘midgets.’ It’s horrible.”

Because South Carolina’s civility oath applies only to opposing parties and counsel, Coggiola’s office has asked the court to sanction the lawyer for bringing the profession into disrepute. The argument? If he were personally blogging or posting the comments on Facebook, without identifying that he’s a lawyer, the bar couldn’t touch him. “However, if you say you’re a lawyer, and if there’s a nexus between you being a lawyer and what you’re posting, then we’re going to come back to this rule and find it a ground for discipline,” contends Coggiola. “We need the court to come out and say this is not OK.”

The South Carolina Supreme Court case finding that our civility oath didn’t violate a lawyer’s right to free speech, In the Matter of Anonymous Member of the South Carolina Bar, 392 S.C. 328, 709 S.E.2d 633 (2011), dealt strictly with incivility in the context of ongoing legal representation.  That our South Carolina Office of Disciplinary Counsel is seeking to sanction a lawyer for blogging “uncivilly” appears to me to be a shocking imposition on free speech.

Monitoring attorney blogs for incivility will stifle much important and protected speech.  Attorneys, who work in and observe the court system up close and constantly, are generally in the best position to point out problems with the legal system or to draw attention to frequent injustices.  Some of my blogs have pointed out areas in which I believe the way family law is practiced in South Carolina is unjust.  While I try to be civil in these blogs, I probably use language that is stronger than others might approve.  In other blogs I criticize aspects of our culture that family law tries to ameliorate and some readers may be offended by such blogs. Further harsh or uncivil language is often useful to convey the depths of one’s anger or despair.  If lawyers need to hold back in their criticisms of the legal system, the general public may not get an accurate understand of how well or poorly justice is being served.

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.  Sometimes the legal profession is disreputable and lawyers are in the best position to explain when and why.  They shouldn’t be subject to discipline merely because the Office of Disciplinary Counsel finds their opinion rash or uncivil.

While I wouldn’t advocate the legal tossing of dwarfs for sport I believe I have the right to do so in my blog without being sanctioned by the bar for incivility to “midgets.”

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