A federal prosecutor in Louisiana was disbarred for posting scathing commentary online – including more than a hundred anonymous posts about cases his office was prosecuting.
In December 2018, the Louisiana Supreme Court said the assistant U.S. Attorney had violated ethics rules prohibiting conduct prejudicial to the administration of justice, and that the case is a cautionary lesson for all lawyers.
“[The lawyer’s] caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system,” according to the December 5 decision. “Our decision today must send a strong message to [the lawyer] and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the internet.”
The attorney posted more than 2,600 comments on the website of the New Orleans Times-Picayune from November 2007 through 2012, according to the Legal Profession Blog and the ABA Journal. The comments covered a range of topics. Between 100 and 200 pertained to cases that he or his colleagues in the U.S. Attorney’s office were assigned to prosecute. He did not identify himself or his position in the posts. He used online identities such as “campstblue,” “legacyusa,” “dramatis personae,” “Henry L. Mencken1951” and “fed up.”
Improper Extrajudicial Statements
The attorney initially argued he had posted the comments to relieve stress, and that he hadn’t intended them to influence cases. Later he acknowledged his behavior was unethical.
“When asked why he engaged in commenting in a prohibited way [he] candidly admitted that he was angry over public corruption, and he vented this anger in the caustic criticism leveled against all who, in his judgment, warranted accountability, even though he knew this was improper,” the ABA Journal reported, citing the opinion.
In one post, the attorney said he had read a federal indictment and “there is no legitimate reason for this type of behavior. … GUILTY!!!”
In another, he opined on the federal prosecution (being handled by other prosecutors) of New Orleans police officers for shooting civilians after Hurricane Katrina: “NONE of these guys should have ever been given a badge.” The officers’ conviction was reversed after the online comments by the lawyer and two other government lawyers were discovered.
- Rule 1.7(a)(2) – placing personal interests ahead of those of his client
- Rule 3.6 - making extrajudicial statements about the guilt or innocence of defendants and/or others under investigation or prosecution that had a substantial likelihood of materially prejudicing an adjudicative proceeding
- Rule 3.8(f) – heightening public condemnation of the accused
- Rule 8.4(d) – Engaging in conduct prejudicial to the administration of justice
ABA Formal Opinion 480
In 2018, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 480, which says lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless otherwise authorized. The opinion covers a range of platforms for online commentary, including blogs, listserves, online articles, website postings, brief online statements or microblogs, Twitter and the like.
“Online public commentary provides a way to share knowledge, opinions, experiences, and news,” according to ABA Formal Opinion 480. “Many online forms of public commentary offer an interactive comment section, and, as such, are also a form of social media. While technological advances have altered how lawyers communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.”