The South Carolina Lawyers Weekly in its July 28 issue reports that the Office of Disciplinary Counsel has told attorney Todd Kincannon that his provocative political Twitter posts violate the Rules of Professional Conduct. Kincannon has filed a 1983 action against ODC officials claiming that his posts are constitutionally protected. The US Supreme Court has not spoken on the issue of the degree of First Amendment protection that lawyers have when posting on social media. The South Carolina Supreme Court has decided two cases which are relevant although not determinative of the issue. In In re Anonymous Member of the South Carolina Bar, 392 S.C.328, 709 S.E.2d 633 (2011), the court found that a lawyer violated the civility oath when the lawyer wrote an email to opposing counsel in a domestic case in which he said that he had heard that opposing counsel’s teenage daughter, who had nothing to do with the domestic case, had been detained for buying cocaine and heroin from a drug dealer. The email went on to claim that this conduct was far worse than the allegations that opposing counsel was making in the domestic case. The supreme court administered a private reprimand, but it warned the bar that future conduct of this type could result in a public sanction. The court also rejected the lawyer’s constitutional attacks on the civility oath, pointing out that the US Supreme Court has held that lawyers are not entitled to the same First Amendment protections as ordinary citizens. The court further found that the lawyer’s conduct was prejudicial to the administration of justice because a personal attack on a family member of opposing counsel “can only inflame the passions of everyone involved, make litigation more intense, and undermine a lawyer’s ability to objectively represent his or her client.” For a somewhat similar case decided under Rule 4.4(a) see In re White, 391 S.C. 581, 707 S.E.2d 411 (2011), where the court administered a 90 day suspension to a lawyer who wrote a letter on behalf of his client, a church, to town officials accusing them of being “pagans” and attempting to “crucify” his client.
For more information contact Nathan M. Crystal