Or, alternatively, Life’s A Beach and So Is Mike Huckabee

I’m sure none of you have stayed up late wondering, hey, what’s up with the former Arkansas governor and dad to the now-ex-POTUS spox? Well, apparently, he’s now a Florida Man, and he bought up beachfront property that’s at the center of a big dispute over public beach access. A lawyer involved on the other side of the dispute, Daniel Uhlfelder, tweeted editorial cartoons that were critical of Huckabee and responding to a tweeted suggestion for Huckabee’s Secret Service name with, “beach thief.”

And how did Huckabee respond? Did he ignore it? Did he remind himself that he’s been a public figure for decades and he should be very used to criticism? Did he remember his religious teaching to turn the other cheek?

Of course not. He filed a complaint with the Florida Bar, alleging that he was defamed and accused of a crime of moral turpitude. (Because, you know, “beach thief.”)

The press and the Internet generally have reacted predictably, with a collective “you’ve got to be kidding me.” (Didn’t we already discuss this? That when you complain about something mean that someone said about you on Twitter it makes everything worse?)

I can never predict with certainty what a disciplinary authority is going to do (even in Wisconsin). But. Yes, attorneys are held to a high standard, and some of the Rules are 24/7 (not just while the attorney is working), but at the same time, we’re still allowed to be human and the First Amendment still applies to attorney conduct.

I’m reminded of In re Williams, in which an attorney who wrote intemperate letters to the editor regarding a matter of public concern and in which he was involved as a lawyer. He faced an Office of Lawyer complaint alleging that he engaged in improper trial publicity under SCR 20:3.6 as well as violated the Attorney’s Oath prohibition on offensive personality (yes, lawyers are expected to refrain from offensive personality; no, linking to your own article doesn’t qualify). The referee found the latter but not the former, and the lawyer appealed.

The Supreme Court ended up dismissing the complaint on grounds that the letters just didn’t meet the standards for a violation:

We agree with the referee that some of the statements in the letters written by Attorney Williams were acidic, argumentative, arrogant and condescending.   While we do not condone either the tone or the content of the letters, we do not find that the letters constituted “offensive personality” in violation of the attorney's oath.   […]

Although Attorney Williams perhaps used more oratorical flourish than was prudent, the record supports the referee's finding that his conduct was motivated by the desire to protect his client.   Under the circumstances we cannot conclude, as a matter of law, that the letters constituted “offensive personality” in violation of the attorney's oath.

I didn’t really see much that Uhlfelder did that was “acidic, argumentative, arrogant, and condescending”—I’ve heard far worse on the phone on an average Tuesday. I note that Williams was not dismissed on First Amendment grounds (the Court didn’t reach the Constitution, as the argument was not developed in the briefs), but I would hope that retweets and pointing and laughing at a politician’s expense would be protected by both First Amendment and normal human interaction concerns. (If not, a whole lot of us will be in trouble.)

Also, as an aside, even a dismissed complaint can be a big deal for the responding lawyer—they still have to respond to it (which costs time, money, and aggravation) and get it to the point where it can be dismissed. In the meantime, there can be negative publicity as the complaint is prosecuted (though it looks like Uhlfelder is reaping some benefits— he had around 400 Twitter followers before this started, and more than 60,000 less than a day later, and he is using his boosted signal to advocate for free speech as well as for his client’s beach access cause).

Grievances shouldn’t be used as a bludgeon, or to silence critics. I’ll be keeping an eye on this one.