Never hit send in anger: Navigating professionalism in the electronic age
Virtual technology is revolutionizing the administration of justice, but the digital age is also exacting a toll on the legal profession, warns Caroline Johnson, a former member of the Supreme Court’s Commission on Professionalism.
“With the increase in the use of social media, there has also been, unfortunately, a coarsening of society,” Johnson said. “Folks are losing their sense of the nobility of the practice of law.”
A guest speaker at the 2020 Masters Ethics Seminar sponsored by the Professional Ethics Committee, Johnson appeared via live webinar.
Jonson said lawyers are forgetting their professional and ethical responsibilities at a time when the Supreme Court is taking an increasingly dim view of ethical violations.
Transgressors face reprimands, fines, suspensions, or disbarment, Johnson said. A complaint against an attorney could lead to a formal proceeding before a grievance committee, Johnson said.
“It goes forward, unfortunately, much like a prosecution,” she said. “They essentially have a non-jury civil trial, and evidence is received, and witnesses are considered, and the referee makes a report to the Florida Supreme Court and recommends a sanction.”
These days, justices are more likely to reject a referee’s recommendation as too lenient, Johnson said.
“Quite frankly, the Florida Supreme Court has become less patient with attorneys,” Johnson said. “The court is constantly imposing tougher sanctions than the referee is suggesting.”
The most common complaint against attorneys is failure to communicate with clients, Johnson said.
But increasingly, attorneys are facing sanctions for the way they communicate on social media, she said.
“There have been cases where folks are getting in trouble for what they write in emails, and so forth, Facebook,” she said. “These are things that may not be apparent to the average attorney.”
If an opposing counsel sends an insulting communication, don’t respond in a like manner, Johnson said.
The Florida Bar Creed of Professionalism states, in part, “I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.”
Professionalism guidelines are aspirational, but violating them also risks violating Rule 4-8.4, which prohibits conduct that is “prejudicial to the administration of justice,” Johnson said.
Rule 4-8.4 states that prejudicial conduct includes “to knowingly, or through callous indifference, disparage, humiliate, or discriminate against, litigants, jurors, witnesses, court personnel, or other lawyers on any basis.”
Johnson said she avoids social media — and she recommends that other lawyers do so as well.
“Anytime you’re posting something, you’re taking the risk that it can be used against you,” she said.
Attorneys who use social media should maintain a professional tone, she said.
“I would argue to you the best practice is formality always,” she said. “You should use formal letters and emails, and you should not use text messages, unless your client or opposing counsel agree to that.”
If texting is agreed to, use it sparingly, Johnson said.
“Something like a settlement agreement, I don’t think you want to text that,” she said.
Draft emails on a Word document before committing them to an Outlook folder, and when an email is ready to transmit, never hit “send” in anger, Johnson said.
“When people are feeling frustrated, and the unprofessionalism monster begins to come out, it’s good to ignore it,” she said. “The problem with violating ethical rules is all of the damage you do to yourself.”