Rudy Giuliani, as discussed here, was just suspended from the practice of law on the basis of out of courts statements that the New York bar disagrees with, while representing a client they hate (Donald Trump), using a standard that has never been applied to a lawyer before.
Yet what was just done to South Carolina lawyer David Paul Traywick by the state Supreme Court was even worse, and more ominous. The Court ordered his suspension from the practice of law based on social media posts that were pure opinion, and that had no connection to the practice of law at all. Traywick lost his license for six months. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by “re-education” authorities.
The Court felt justified punishing him after the South Carolina Office of Disciplinary Counsel received complaints from 46 people about Traywick’s Facebook posts. The posts were accessible to the public, and his profile identified himself as a lawyer while mentioning his law firm his law firm.
The Court found twelve posts by Traywick “troubling.”I will interject here that an individual’s statement on social media are none of a court’s business, indeed none of its damn business, unless they are libelous or criminal, or evidence in a case before it. None of the posts fit into those categories. Two of the posts nonetheless triggered the suspension:
- On April 5, 2020, Traywick posted what the Court calls “an offensive comment regarding tattoos,” apparently so offensive the the opinion won’t even enlighten us to what it was. After whatever it was he was saying about tattoos, which could have only been an opinion, he challenged his readers, “Prove me wrong. Pro tip: you can’t.” In a subsequent post in response to a comment, he wrote, “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!”
- On June 3, 2020, at the peak of the George Floyd Freakout, they lawyer posted, also on Facebook, “Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.“
By no stretch of the imagination or the Rules of Professional Conduct do those statements justify suspending a lawyer’s right to practice law. It is protected speech under the First Amendment. It does not involve the practice of law. The comments are profane, but profanity is not grounds for discipline out of a legal context. They are vulgar, but the same hold with those. They may offend readers, but nobody is forcing readers to follow this jerk. The lawyer appears, based on his comments, to be an asshole, but being an asshole is not a disqualification for practicing law. It is often an asset, some might say. He may have been lying, but not in any way that could be linked to his trustworthiness as a lawyer, and lies are also protected speech unless they constitute fraud or perjury.
Yet the Court wrote,
“We find these two comments warrant a six-month suspension. These comments are not expressive; they are expressly incendiary. Both are statements by a lawyer on his social media account identifying him as such and listing the name of his law firm. The statements were intended to incite, and had the effect of inciting, gender and race-based conflict beyond the scope of the conversation Respondent would otherwise have with his Facebook “friends.” The fact Respondent is a lawyer exacerbated this effect. We are particularly concerned with the statement regarding Mr. Floyd. We find this statement was intended to incite intensified racial conflict not only in Respondent’s Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.”
Of course, this is all about George Floyd, and a citizen daring to express dissent from the state-mandated narrative that the victim of police brutality must be respected, lionized and mourned. The tattoo comment seems to have been included to obscure the Court’s obvious focus. That incomprehensible comment was “intended” to incite what “gender-based” conflict, the Great Tattoo Uprising of 2021? That’s risible on its face. As for the Floyd comment, I could read worse things written, by lawyers, on Facebook, about Donald Trump virtually every single day of the last five years. I find such language about the President of the United States, no matter who he is, unethical and irresponsible, but I would never base a disciplinary complaint on such a comment because 1) I’m not an idiot, 2) it’s not a professional violation, 3) I don’t believe in censorship, and 4) no social media post has ever incited a riot, though social media has been used to organize riots.
What rules did Traywick allegedly violate? Unless his Floyd post could be shown to be made with the intent of starting a riot, which it cannot, it violates none of the South Carolina Rules of Professional Conduct. Instead, the Court cites provisions of Rule 7 of the Judiciary Branch Rule 413, “Grounds for Discipline, specifically.
(5) engage in conduct tending to pollute the administration of justice or to bring the courts or the legal profession into disrepute or conduct demonstrating an unfitness to practice law; and
(6) violate the oath of office taken to practice law in this state and contained in Rule 402, SCACR.
The first is so vague and subjective that it cannot stand up to constitutional scrutiny. It could be used to require lawyers to only utter popular sentiments, and to only represent popular causes and clients. Fitness to practice law has always been interpreted as meaning honesty, competence, and trustworthiness; social media outbursts are irrelevant, or were until now, in South Carolina.
Here is the state’s Lawyer’s Oath:
I do solemnly swear (or affirm) that:
I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been appointed, and that I will, to the best of my ability, discharge those duties and will preserve, protect, and defend the Constitution of this State and of the United States;
I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them;
To my clients, I pledge faithfulness, competence, diligence, good judgment, and prompt communication;
To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;
I will not pursue or maintain any suit or proceeding which appears to me to be unjust nor maintain any defenses except those I believe to be honestly debatable under the law of the land, but this obligation shall not prevent me from defending a person charged with a crime;
I will employ for the purpose of maintaining the causes confided to me only such means as are consistent with trust and honor and the principles of professionalism, and will never seek to mislead an opposing party, the judge, or jury by a false statement of fact or law;
I will respect and preserve inviolate the confidences of my clients, and will accept no compensation in connection with a client’s business except from the client or with the client’s knowledge and approval;
I will maintain the dignity of the legal system and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
I will assist the defenseless or oppressed by ensuring that justice is available to all citizens and will not delay any person’s cause for profit or malice;
[So help me God.]
You tell me: how do those Facebook posts violate the Oath “in letter and spirit”? They don’t.
Proving that he’s a disgraceful lawyer—this would be a more valid reason to suspend him than anything he wrote on Facebook—the victim of this viewpoint censorship proved he doesn’t care about his profession or the Bill of Rights to challenge the decision. He just wanted to get his license back as soon as possible: He loved Big Brother. So he didn’t raise any First Amendment defense, and stipulated to everything in exchange for his suspension only lasting six months. Americans like David Paul Traywick, who don’t have the courage and the civic responsibility to fight government censorship and forced viewpoint conformity pose the greatest threat to democracy. He’s not just an asshole; he’s a bad citizen and a bad lawyer, and thanks to him and a dangerous precedent, free speech and expression is more endangered than it was before.