Watch Your Tweets and Wash Your Hands
Digital hygiene for the COVID-19 pandemic.
Written by John G. Browning
During this pandemic, anxiety over the physical and economic well-being of our country can feel overwhelming. Add in the stress of sheltering in place and working from home (for those who are still working), and it’s understandable why people seem more active on social media than ever, reaching out seeking to reduce that “social distance” if only in a virtual sense. And as with any major newsworthy subject, social media brings out the best and worst in us—sharing stories of hope and resilience that comfort us, along with conspiracy theories and partisan attacks that divide us. Yet it’s vital for lawyers to remember that venting on social media carries unique risks including disciplinary action, loss of employment, and damages to professional and personal reputations.1
Lawyers facing the consequences for sharing controversial comments online is hardly a new phenomenon. In 2016, Florida prosecutor Kenneth Lewis posted comments on Facebook after the Pulse nightclub mass shooting in Orlando, Florida, seemingly blaming the victims as he referred to such nightspots as “utter cesspools of debauchery” and calling for the city of Orlando to be “leveled.” Lewis was fired shortly thereafter.2 In September 2017, Travis County attorney Robert Ranco criticized U.S. Secretary of Education Betsy DeVos’ Title IX policies, tweeting that he was “ok if #BetsyDevos was sexually assaulted.” The firestorm ignited by Ranco’s comments led to Ranco’s resignation from the Austin civil rights firm where he was a partner.3
The following month, CBS vice president and senior counsel Hayley Geftman-Gold posted comments in a Facebook exchange that were decidedly unsympathetic to victims of the tragic Las Vegas, Nevada, mass shooting during a country music concert on October 1, 2017. Using a slur for Republicans, Geftman-Gold posted, “I’m actually not even sympathetic [because] country music fans often are Republican gun toters.”4 She was quickly fired, as CBS distanced itself from her, stating, “Her views as expressed on social media are deeply unacceptable to all of us at CBS. Our hearts go out to the victims in Las Vegas and their families.”5
But losing a prestigious in-house job and being at the epicenter of a high-profile controversy was just the beginning for Geftman-Gold. A group called Citizens for Judicial Reform initiated an online petition calling for the New York State Bar Association to take professional disciplinary action against her over the “reprehensible and despicable remarks,” questioning whether she was capable of remaining professional in response to a national tragedy. Within days, the petition had over 12,000 signatures.6
With a more casual “WFH” environment, easy access to online platforms, and the constant worry about COVID-19’s impact on our health and our economy combining to form a perfect storm, it’s hardly surprising that lawyers and law firms also have had to contend with fallout from controversial pandemic-related social media posts. California lawyer Scott McMillan, 56, has faced widespread criticism and even death threats for a “glib” tweet about the pandemic’s impact on the economy. McMillan tweeted, “The fundamental problem is whether we are going to tank the entire economy to save 2.5% of the population which is (1) generally expensive to maintain, and (2) not productive.”7 The tweet triggered a viral backlash, leading McMillan to take it down and express regrets. “Had I been a little bit more thoughtful of the situation people were going through,” McMillan acknowledged, “I wouldn’t have said it.”8
Louisville, Kentucky, lawyer James Troutman, 53, is facing not just online critics, but criminal charges for his pandemic-related Facebook posts. In one post critical of Kentucky Gov. Andy Beshear’s handling of the crisis, Troutman said someone should ask the governor about “his thoughts on William Goebel” (a reference to Kentucky’s 34th governor, who was shot in 1900 the day before he took office).9 In another Facebook post that referenced a rally to protest business closings and whether authorities would be “shooting” (recording) the license plates of protesters, Troutman allegedly stated, “With any luck the gov will be the one at whom the shooting will be directed.” As a result, Troutman was arrested and charged with “terroristic threatening,” a misdemeanor that carries a maximum punishment of a year in jail.10
And it’s not just our own comments as lawyers engaging on social media that we need to be mindful of; under Texas Disciplinary Rule of Professional Conduct 5.03, attorneys must also make “reasonable efforts to ensure” that the conduct of nonlawyers whom they supervise “is compatible with the professional obligations of the lawyer.” Lawyers at Dallas-based Thompson & Knight certainly had this in mind in early May when they learned that the firm’s document services manager, Kevin Bain, had made disturbing comments on Facebook related to his anger at retail businesses requiring shoppers to wear face masks during the pandemic. Referring to a local grocery store’s policy, Bain posted that any business insisting that he wear a mask “will get told to kiss my Corona ass and will lose my business forever.” Following a series of threatening comments, Bain went on to say, “They have reached the limit. I have more power than they do . . . they just don’t know it yet.”11
Thompson & Knight reacted swiftly to their employee’s social media outburst, firing Bain for the “threatening and offensive” post. The firm also released a statement, saying, “This post is a complete violation of the values of our firm, including our commitment to the health and safety of the communities we serve. We have terminated this individual’s employment and notified the proper authorities about the post as a precaution.”12
While lawyers have the same First Amendment rights as any other citizen, their rights are not without risks—such as the risk of losing clients or one’s job, as well as risking damage to one’s reputation. Additionally, for a lawyer, the right to freedom of speech also comes with ethical limitations such as the duty to protect our clients’ confidential information. There’s also the risk of creating a “positional” conflict of interest. In November 2016, the District of Columbia Bar Legal Ethics Committee became the first in the country to address the risk of creating such conflicts when blogging, posting, or tweeting about legal developments or even news. When a lawyer advances one position online but is called upon to argue the opposite on a client’s behalf, a “positional” conflict exists. For example, a lawyer whose firm represents the National Rifle Association or a firearms manufacturer might be seen as having taken a position contrary to his or her client if he or she sent a tweet deploring the proliferation of guns.
With internet sources having displaced personal recommendations as the leading method for obtaining legal services, a lawyer’s online persona is more important than ever. What’s posted or tweeted online has a permanence and a potential to reach wide audiences that lawyers (and many others) frequently underestimate. In this era of endless hand washing, wipes, and sanitizers, remember to practice good digital hygiene too. Make sure you understand the functionality of any social media site you use, including its privacy protocols. Bottom line—if you wouldn’t express it in a phone call, a letter, or a pleading filed with the court, then don’t share it with the world on social media.TBJ
JOHN G. BROWNING
is a partner in Spencer Fane in Plano, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at SMU Dedman School of Law.