So It’s Come To This: No, It Is Not Misconduct For A Lawyer To Say Mean Things On The Internet

(*Some exceptions apply and are discussed below.)

This is something I shouldn’t have to write about at all, but I guess this is where we are. I’ve gotten some reports of lawyers being threatened with disciplinary complaints for posting about the killing of conservative activist Charlie Kirk on social media. I will not link to or screen-shot the posts here; we’ve all seen them, and the content isn’t really what’s driving the threatened complaints (it’s the politics of the posters and those making the threats). We will see in coming weeks whether these threats actually come to fruition (as it’s easy for JoeNameBunchanumbers to send a DM or leave a nasty message on a law firm voicemail), but in the meantime, I will reiterate:

No, it is not professional misconduct for a lawyer to say mean things about nearly anyone (or nice things about nearly anyone, for that matter) on the Internet.

But as much as some folks would like to weaponize any unsympathetic expression here, lawyers still have the right to post things that other people disagree with. Sure, anyone can complain to regulatory authorities for any reason, or no reason at all; these types of complaints should be met with nothing more than a swift dismissal.

The exceptions here do concern situations in which a lawyer is professionally involved. Someone representing or who has represented him/his estate, his businesses, or his family (whether in a lawsuit that existed before he died, a new lawsuit, in probate, in a property sale, whatever) shouldn’t be posting information related to that representation without informed consent or an exception to the rules. Anyone involved in the criminal prosecution or other litigation needs to be mindful of the trial publicity rules, to ensure fair proceedings. These rules apply to all client matters, though, not just high-profile or controversial ones.

“But what about the rules against harassment and offensive personality? Don’t those apply here? Don’t lawyers have an ethical obligation to be civil?”

Ahh, “civility.” Sometimes, that applies to decorum when dealing with clients, other counsel, and the courts, which, yes, lawyers do generally need to behave themselves in those contexts. But often, “civility” is equated with the trappings of politeness—even delivery tone, no profanity, a smile (wearing a suit and having a crisp new haircut helps too). As I have said before, the guy who fired me from my first lawyer job when I was 8 months pregnant was wearing a tie, said “please” and “thank you,” and didn’t swear at me. People would say that was civil.  

Anyway. In Wisconsin, attorneys take an oath to “abstain from all offensive personality.” Violations of this oath are enforceable in discipline. And while “offensive personality” can be pretty fuzzy, constitutional challenges to the rule have failed. The Court has clarified that this “offensive personality” has to have some nexus to work—“offensive personality” concerns “an attorney's conduct in the course of the practice of the profession or in circumstances that led to a criminal conviction.”

The same is true for violations of SCR 20:8.4(i), which is our version of Model Rule 8.4(g). Our version reads:

It is professional misconduct for a lawyer to:

(i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer's professional activities. Legitimate advocacy respecting the foregoing factors does not violate par. (i).

So there are a couple of things here. First, we would need to look at whether an allegedly offensive post on a personal page is “in connection with the lawyer’s professional activities.” That may be fact-intensive, but in most cases, it is probably not connected. I don’t think listing your employer on your Facebook pages makes the dinner you posted a picture of a tax-deductible business expense.  But more importantly, saying unflattering things about a deceased public figure (or even celebrating their death) almost certainly does not implicate “harassment” of that person, let alone on the basis of one of the characteristics enumerated above. And note, “political affiliation” and “political opinions” are not characteristics enumerated above.  

 I am not saying that social media behavior, about Charlie Kirk or otherwise, could never, ever lead to discipline under these rules, but at risk of repeating myself: lawyers are allowed to be crude, insensitive, tacky, mocking, etc. in their personal lives.  Posting a Newsweek article from 2023 is not misconduct, even if it offends some people.

Now, this isn’t commentary about the wisdom of commenting, whether it’s ragebaiting/trolling, or more measured; nor is it a commentary about the wisdom of abstaining from doing so.  Even though a lawyer’s expression of opinions in this fashion should not land them in hot water with the OLR, the market may react differently. Individual employers and clients can mostly do what they want. (Government employers may be a little more constrained, but that is beyond the scope of this entry.)

In Wisconsin, a private employer could fire someone for being critical of Charlie Kirk (or Melissa Hortman, the Democratic Minnesota legislator who was assassinated in June, or pretty much anyone else), or being supportive of Charlie Kirk (or Melissa Hortman, or pretty much anyone else), or even for posting on social media at all. These aren’t protected activities in an at-will employment context. Clients can make decisions based on whatever criteria they deem appropriate. But these are business decisions, not disciplinary ones.