Tuesday, April 26, 2011

E-Courtesy And The First Amendment

The South Carolina Supreme Court issued and published a private letter of caution "to address what we see as a growing problem among the bar, namely the manner in which attorneys treat one another in oral and written communication. We are concerned with the increasing complaints of incivility in the bar.

The offending communication:

The formal charges in this matter arose out of a disciplinary complaint regarding an e-mail message Respondent sent to opposing counsel (Attorney Doe) in a pending domestic matter.  Respondent represented the mother and Attorney Doe represented the father in an emotional and heated domestic dispute.  It was within this context that Respondent sent Attorney Doe the following e-mail (the "Drug Dealer" e-mail):

I have a client who is a drug dealer on . . . Street down town [sic].  He informed me that your daughter, [redacted] was detained for buying cocaine and heroine [sic].  She is, or was, a teenager, right?  This happened at night in a known high crime/drug area, where alos [sic] many shootings take place.  Lucky for her and the two other teens, they weren't charged.  Does this make you and [redacted] bad parents?  This incident is far worse than the allegations your client is making.  I just thought it was ironic.  You claim that this case is so serious and complicated.  There is nothing more complicated and serious than having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night on or near . . . Street.  Think about it.  Am I right? 

Attorney Doe's spouse, also an attorney, filed the complaint in this matter after Attorney Doe disclosed the "Drug Dealer" e-mail to him.  At the hearing, Respondent admitted that Attorney Doe's daughter had no connection to the domestic action. 

At the hearing, Respondent asserted that the e-mail was in response to daily obnoxious, condescending, and harassing e-mails, faxes, and hand-delivered letters from Attorney Doe.  These communications allegedly commented on the fact that Respondent is not a parent and therefore could not advise Respondent's client appropriately. In support of this contention, Respondent submitted five e-mail exchanges between Respondent and Attorney Doe, four of which were dated after the "Drug Dealer" e-mail.  In further support of Respondent's assertions, Respondent claimed to possess ten banker's boxes full of e-mails and other documents that constituted daily bullying from Attorney Doe; however, these documents were not produced.  Due to a lack of evidence supporting Respondent's assertions, the Panel found Respondent's testimony to be entirely lacking in credibility.  Ultimately, the Panel found Respondent was subject to discipline for sending the "Drug Dealer" e-mail to Attorney Doe. 

The court rejected the attorney's First Amendment claims:

A court analyzing whether a disciplinary rule violates the First Amendment must balance "the State's interest in the regulation of a specialized profession against a lawyer's First Amendment interest in the kind of speech that was at issue."  Gentile v. State Bar of Nevada, 501 U.S. 1030, 1073, 111 S. Ct. 2720, 2744 (1991).  "In those instances where a lawyer's unbridled speech amounts to misconduct which threatens a significant state interest, a state may restrict the lawyer's exercise of personal rights guaranteed by the Constitutions."  In re Johnson, 729 P.2d 1175, 1178 (Kan. 1986) (citing N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 340–41 (1963)).  "A layman may, perhaps, pursue his theories of free speech . . . until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law.  A member of the bar can, and will, be stopped at the point where he infringes our Canon of Ethics."  In re Woodward, 300 S.W.2d 385, 393–94 (Mo. 1957).

The interests protected by the civility oath are the administration of justice and integrity of the lawyer-client relationship.  The State has an interest in ensuring a system of regulation that prohibits lawyers from attacking each other personally in the manner in which Respondent attacked Attorney Doe.  Such conduct not only compromises the integrity of the judicial process, it also undermines a lawyer's ability to objectively represent his or her client.  There is no substantial amount of protected free speech penalized by the civility oath in light of the oath's plainly legitimate sweep of supporting the administration of justice and the lawyer-client relationship.  Thus, we find the civility oath is not unconstitutionally overbroad.

Justice Pleicones would impose no sanction. (Mike Frisch)

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