By Gage C. Smythe
On March 21, 2021, Twitter celebrated its 15th year online. Facebook was founded two years earlier and newcomers like TikTok and Snapchat came along about a decade later to change the dynamic for a new generation of posters. The social media landscape has seen plenty of growth and, like any new technology, that growth has created a host of new opportunities as well as unforeseen pitfalls for its users. Attorneys, judges and other professionals have found themselves increasingly at home on practically every social media platform, but in a January opinion, the Tennessee Supreme Court made it resoundingly clear that professional ethical obligations do not end where the Tweet or Facebook post begins.
The Court’s opinion in In re: Winston Bradshaw Sitton centers around an extreme case of one attorney’s Facebook posts. 2021 WL 228072, *1 (Tenn. 2021). In them, Mr. Sitton responded to a post about carrying a gun made by a “Facebook friend” in the midst of a breakup. Id. Unsolicited, Mr. Sitton commented on her post saying:
I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby’s daddy, you will kill your ex _ your son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.
If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.
Id. After his friend responded saying “I wish he would try,” Mr. Sutton commented further:
As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life _ revenge or premeditation of any sort will be used against you at trial.
Id. The initial post and ensuing comments were deleted, but the screenshots made their way to Tennessee’s Board of Professional Responsibility, which filed a petition for discipline alleging violations of Rule of Professional Conduct 8.4 (a)-(d) by giving counsel “about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.” Id.
After hearing testimony and reviewing the evidence, the TBPR hearing panel concluded that Mr. Sitton’s posts were “conduct that is prejudicial to the administration of justice,” despite his insistence that the comments were “sarcasm” or “dark humor.” Id. at *4. The TBPR hearing panel imposed a 60-day suspension of Mr. Sitton’s law license, however the Tennessee Supreme Court found the proposal inadequate and, after providing an opportunity to brief the issue, took the matter under advisement. Id. The Tennessee Supreme Court concluded that Mr. Sitton, in his capacity as a lawyer, “offered specific legal advice on how to orchestrate a killing in a way calculated to provide the perpetrator a fabricated defense to criminal charges,” and there was ample evidence to conclude he had violated RPC 8.4(a) and (d). Id. at *7-8.
As to the proposed sanction, the Tennessee Supreme Court went further than the TBPR hearing panel and considered whether the “very public setting” of Mr. Sitton’s comments on social media could rightly be considered an aggravating factor in determining the correct sanction. Id. at *12. The Court considered how the larger Facebook audience would interpret Mr. Sitton’s posts as illustrative of the conduct of lawyers as a profession, “[p]ublicly fostering such a distorted image of the role of lawyers” and doing “grave damage to the administration of justice in our State.” Id. At the same time, the Court acknowledged that there was nothing inherently wrong with lawyers participating in social media, noting that lawyers can engage in their communities, show their personalities and interests outside the law, and develop relationships on social media. Id. at *13.
Nevertheless, attorneys in any setting—including on social media platforms— remain bound by our Rules of Professional Conduct. See In re Vogel, 482 S.W.3d at 545 (All attorneys licensed to practice law in this state have a duty to “act at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.”) Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.
Id. The Court held that the use of social media need not always be an aggravating circumstance but “if the use of social media exacerbates the problems the ethics rule seeks to address, we hold that it may be considered an aggravating factor for purposes of lawyer discipline.” Id. In Mr. Sitton’s case, the Court ultimately imposed a one-year active suspension followed by three years of probation. Id. at *17.
At a time when interactions increasingly occur solely online, attorneys and other professionals should not shy away from the use of social media for both personal and professional development. Any user should understand that the increased reach of social media also brings with it corresponding responsibilities. While the case of Mr. Sitton was a clear example of conduct that violated professional ethics rules regardless of the forum, in a borderline case, dissemination through social media may just be the aggravating factor that pushes conduct beyond the pale. As always, the best practice is to act with care and good judgment regardless of the forum, recognizing that just because something is posted to the digital realm does not mean it will have no real-world consequences.