Lawyer Suspended Over Personal Facebook Posts

• Pages: 7-7
• Date: 01 April 2023
• Author: Derek Wallen
• Subject Matter: Civil Law

n attorney was suspended

after 46 individuals com-

plained to his state’s oce

of attorney discipline over

his Facebook posts. In In

the Matter of David Paul Traywick, the

South Carolina Supreme Court found

that these “expressly incendiary” posts

violated the South Carolina Lawyer’s

Oath, which requires attorneys to “main-

tain the dignity of the legal system.”

According to ABA Litigation Section

leaders, the case underscores the perils

of lawyers using social media and the

increasing importance of mental health

remedies in disciplinary actions.

The attorney in Traywick maintained

a public Facebook page that identif‌ied

him as a lawyer and referenced his law

f‌irm. Beginning in June2020, the South

Carolina Oce of Disciplinary Counsel

(ODC) received numerous complaints

about the attorney’s Facebook posts.

The ODC identif‌ied 12 statements that

it believed violated the Lawyer’s Oath.

Upon review of an agreement for dis-

cipline between the attorney and the

ODC, the state supreme court focused

on two of the statements.

In one, the attorney mocked people

with tattoos, including “these college

educated, liberal suburbanites” whom he

called “boring mother f*ers.” (Partially

edited.) The post singled out women,

closing with, “Especially these females,

Jesus Christ!”

The other statement occurred on

June3, 2020, at the height of pro-

tests following the murder of George

Floyd. Referring to Mr. Floyd, the attor-

ney posted, “Here’s how much that

sh*tstain’s life actually mattered: Stock

futures up. Markets moved higher

Monday and Tuesday. F* you. Unfriend

me.” (Partially edited.)

Although “mindful” of the attorney’s

First Amendment rights, the court

found that the posts were “not expres-

sive; [rather] they are expressly incen-

diary.” The court found signif‌icant that

the attorney’s Facebook page was pub-

Lawyer Suspended Over Personal

Facebook Posts

lic, meaning that anyone could read the

posts. As the court observed, “the state-

ments were intended to incite, and had

the eect of inciting, gender and race-

based conf‌lict beyond the scope” of

private interactions the attorney might

have with Facebook “friends.” The court

also noted that during the disciplinary

proceedings, the attorney chose not to

raise a First Amendment defense and

admitted that the statements violated

the Lawyer’s Oath.

The court was “particularly con-

cerned” about the statements concern-

ing Mr. Floyd, which the court found

were “intended to incite intensif‌ied

racial conf‌lict not only in Respondent’s

Facebook community, but also in the

broader community of Charleston and

beyond.” The statements about Mr.

Floyd were deemed grounds for disci-

pline under Rules7(a)(5) and 7(a)(6)

of South Carolina’s Rules for Lawyer

Disciplinary Enforcement, which codify

the Lawyer’s Oath and prohibit conduct

“tending to bring the legal profession

into disrepute.” The court ordered the

six-month suspension and directed the

lawyer to undergo diversity training and

assessments by a licensed mental health

professional. It also ordered him to com-

ply with all recommended treatments

and provide regular treatment reports

and adavits of compliance.

Litigation Section leaders are not sur-

prised that this conduct led to disciplin-

ary action. “Lawyers should be looked

up to as beacons of fairness and impar-

tiality,” states John M. Barkett, Miami,

FL, cochair of the Section’s Ethics &

Professionalism Committee. “Rants such

as were described in the opinion are

demeaning to the profession. Lawyers

who demean the profession should be

disciplined,” he opines.

Other Section leaders observed that

the timing of the attorney’s posts, at

the outset of the COVID-19 pandemic

and during the George Floyd protests,

highlights the importance of managing

mental health in times of high stress.

“The timing of it to me is interesting,”

notes Dr. Diana Uchiyama, Chicago, IL,

cochair of the Section’s Mental Health

& Wellness Task Force. “Why then?

Why suddenly? We were in the throes

of a pandemic. Mental health problems

skyrocketed,” she observes.

Dr. Uchiyama performs mental

health and substance use assessments

for the Illinois Lawyer’s Assistance

Program and works with the Illinois

Disciplinary Commission on diver-

sion programs for people with mental

health and substance use issues. She

explains that various factors surround-

ing individual attorneys inform proper

assessment and treatment. “As a law-

yer-clinician, I would want to know: Is

there a history of mental health prob-

lems? Of substance use problems? Of

additional stressors that might be com-

pounding these issues?” The case also

highlights a potential danger of social

media. “It’s easy to get provoked, and

it’s easy to make these heated declara-

tory statements,” Uchiyama says.

But regardless of the medium, “a

good lawyer can express opinions in

a neutral manner,” Barkett notes. “We

should know how to express a view in a

public forum that contributes to healthy

debate and doesn’t demean the lawyer

or the profession as a whole or embar-

rass other people,” he concludes.

By Derek Wallen, Litigation News Contributing Editor

SPRING 20 23 • VOL. 48 NO. 3

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD