“@MindYour8Point4CsandQs” is Available, But Should I Use It?
Last week, CNN reported that Wisconsin native and fake elector lawyer Ken Chesebro not only had an anonymous Twitter/X account, “@BadgerPundit,” but denied its existence to Michigan investigators. The account was actually created back when then-Governor Scott Walker dropped the Act 10 bomb, incidentally right around the same time I created my own, very much not anonymous Twitter account (it’s @EthickingStacie now, naturally, but was something else then). We may have interacted at some point, but we were never mutuals.
This Blog Is Not About Politics so I am not weighing in on the electoral or PR ramifications of this burner account. But I have been asked—Ken Chesebro is a lawyer*, and lawyers aren’t allowed to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, right? Can lawyers even have anonymous social media accounts?
Yes, with some caveats. Both the Rules of Professional Conduct and disciplinary decisions lag developments in the real world, so there isn’t a lot of specific authority. But looking at the Rules as they stand, and drawing parallels between social media and traditional media where we can, we can glean some guidance.
In 1997, a Wisconsin lawyer, Paul Goetz, was disciplined with a public reprimand for (among other things) writing a letter criticizing a district attorney, to the editor of a newspaper under an assumed, but realistic, name, and then sending harassing communication to the DA referencing that name and letter. The Court concluded that using a fake name and misrepresented his identity violated SCR 20:8.4(c). While the Court did not discuss its reasoning in detail, the Board of Attorneys Professional Responsibility (BAPR, OLR’s predecessor) mentioned in its filings that Goetz could have used a non-deceptive means to conceal his identity, such as “using an obviously fabricated name,” or simply “Anonymous,” or revealing his name to the paper but asking that it not be published (which suggests to me that those means would have been more acceptable). Goetz countered that he believed the newspaper may not have published his letter under an obviously fake name, and may not have protected his identity if he had provided his name but asked that it be withheld. So it goes. The Court reiterated that criticism of the DA was not the problem (that was “core political speech” and protected); it was the means by which Goetz sought to disseminate it.
This case is more than 25 years old, and it hasn’t been cited since. But, I think it’s helpful, and the bit from BAPR discussed in dicta is useful here—the use of obviously fake or anonymous names isn’t deceitful and shouldn’t violate any of the Rules. And, why would OLR and other authorities even want to regulate the use of “PugLoverWisconsin” or even law-related anonymous handles, like the one in the blog title?
That said, there are going to be limits—names can’t be misleading. While parody and fandom may be appropriate (and, per X’s terms of service, must be clearly identified), we can’t just decide one day we’d rather be Judge Judy (note: @JudgeJudy is taken, but not by The Hon. Arbitrator Sheindlin or her show), or any other real-life person.
Goetz suggests that using a realistic fake name may be a problem, but I think here is where social media is different. There aren’t any gatekeepers on social media—you can post what you want, when you want, so the rationale Goetz offered for using a real-sounding pseudonym (that the newspaper wouldn’t publish his letter otherwise) doesn’t apply here.
Still, I see little value in regulating a lawyer who uses a realistic-but-not-real name to post about their hobbies, pets, or recipes. Rule 8.4(c) generally requires some nexus between the behavior and law practice to be actionable, anyway. The OLR isn’t interested in whether your kids believe in the Tooth Fairy or whether you told your Aunt Connie that her hat looked lovely.
And that brings me to another point—there are limits. Lawyers still can’t hide behind anonymity or pseudonymity to do things that are prohibited. If, say, an opposing party in a disability case you’re defending posts a picture of herself winning a Christmas tree throwing contest on a site that’s generally accessible, have at it. You can’t, however, conceal your identity to communicate with a represented party, or access something that would normally be hidden from you. Catfishing is still catfishing. Harassment is still harassment. Client confidences still need to be maintained.
As for BadgerPundit,CNN reports that Michigan authorities are “interested” in the newly available material, and that Chesebro could find himself in legal jeopardy if he did conceal it from investigators. And, that’s going to be an issue no matter what you call yourself—many of the Rules governing truth (for instance, candor to the tribunal, 8.4(c)) apply regardless of whether the lawyer is representing a client, or whether it’s the lawyer in the hot seat.
*Cheseboro is Wisconsin-connected though is not licensed here. Still, it would defy all laws of nature, physics, and everything else for me to be representing him in any capacity, so I don’t think I’m providing any clues as to who else I may or may not represent through commenting, and my default policy need not apply.
