In 1991, Sal Perricone started working as an Assistant United States Attorney. Last week, he was disbarred.
Long story short, for many years, Perricone used various pseudonyms to post comments to stories on NOLA.com. Some were about LSU football. The Geaux Tigers comments didn’t get him into trouble.
No, Perricone ran afoul of the rules by posting comments about cases being prosecuted by his office. The disbarment order quotes several of his online comments. I’m not going to detail the comments here. To get a sense, read the disbarment order.
It’d be easy to read the decision and conclude that Perricone’s conduct was so bizarre that it’s unlikely to be conduct that lawyers need to be warned to avoid.
But there’s a lesson in the decision. Be careful what you post to social media! And the Louisiana Supreme Court took great pains to drive home that lesson to lawyers.
First, a few rules to remember:
- Rule 3.6. Trial Publicity: the first paragraph prohibits a lawyer who is participating in a matter from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and that will have a substantial likelihood of materially prejudicing a judicial proceeding in the matter.”
- Rule 3.8. Special Responsibilities of a Prosecutor: paragraph (f) prohibits a prosecutor from “making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused.”
- Rule 8.4(d): the rule prohibits conduct that is prejudicial to the administration of justice.
Here’s Louisiana Supreme Court’s warning for us all:
“In this age of social media, it is important for all attorneys to bear in mind that
‘[t]he vigorous advocacy we demand of the legal profession is accepted because it
takes place under the neutral, dispassionate control of the judicial system.’ Gentile
v. State Bar of Nevada, 501 U.S. 1030, 1058 (1991). As the Court in Gentile wisely
explained, ‘[a] profession which takes just pride in these traditions may consider
them disserved if lawyers use their skills and insight to make untested allegations in the press instead of in the courtroom.’ Id.
“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.”
Remember: Rule 3.6, the rule on trial publicity, is NOT limited to prosecutors.
Yet another example of The Hammer Doctrine: don’t post that.
Or, for you younger readers, posting information related to the representation of a client to social media should make you think of the Cardi B Doctrine:
red light, red light, stop!