Court: online anonymity doesn't shield lawyers from ethical obligations

Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water-cooler conversations have been affected by technology. Certainly these in-office discussions still occur, but much of the day-to-day discourse about current events has shifted to the online realm. Whether it's on Facebook, in online forums, or in the comments that follow news articles, there are plenty of opportunities to comment on and share opinions about recent events. Notably, many of these comments can be made anonymously - and as a result, some people are less restrained about their opinions than they would be if their personal identities were publicly attached to them. Of course, the perceived anonymity is often an illusion, since there are many different ways to go about determining who posted a particular comment, should the need arise to do so. That's a lesson that was learned the hard way by Salvadore R. Perricone, an assistant U.S. attorney for the Eastern District of Louisiana. Last month, the Supreme Court of Louisiana handed down an opinion, In re: Salvadore R. Perricone, No. 2018-B-1233 (online: http://www.lasc.org/ opinions/2018/18-1233.B.OPN. pdf), wherein the court considered whether Perricone violated his ethical obligations as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney, and others related to trials that his colleagues were prosecuting. The anonymous postings included the following comments: A statement that the defense attorney had "screwed his client!!!!"and was just "as arrogant as [the allegedly bribed official] . and the jury knows it." During a federal civil rights trial involving the shooting of an unarmed man he wrote: "Perhaps we would be safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties. GUILTY AS CHARGED." Regarding an indictment alleging conspiracy: "I read the indictment . there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!" When his comments were discovered and reported to a judge, an investigation was conducted and disciplinary charges were filed. After reviewing the findings and recommendations of the hearing committee and disciplinary board, the Supreme Court of Louisiana concluded that the appropriate sanction for Perricone's conduct was disbarment. The court explained that Perricone's actions were not innocuous: "When discovered, respondent's actions caused serious, actual harm in the River Birch and Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There was a potential for harm in the Jefferson and Gill-Pratt cases." According to the court, disbarment was necessary for a number of reasons, not the least of which was to send a message to other lawyers to tread carefully when posting online about pending matters: "Respondent's conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer's ethical obligations are not diminished by the mask of anonymity provided by the Internet." In other words, the lesson to be learned is one that I often repeat: the online is simply an extension of the offline world. You don't leave your ethics at the door when you enter the online realm. Think before you post - anonymously or otherwise - and refrain from commenting about any matters that you are personally involved in or about which you have inside knowledge. Your ethical obligations require it, and your law license depends on it. ----- Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com. Published: Tue, Jan 08, 2019