If My Blog Actually Got Comments, This Would Be A Cautionary Tale

As reported by Above the Law and the Legal Profession Blog, a Colorado lawyer received a 60-day suspension, stayed if he successfully completes a two-year probationary period, for posing as a judge and a former deputy district attorney in blog comments submitted to a moderator.

The stipulated decision (and I suppose I should include a warning that there is uncensored profanity in the decision) was brief, and notes a violation of Colorado Rule 8.4(c), which, like its ABA counterpart, prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation.” It is unclear from the decision how this lawyer’s conduct was discovered—he associated each of the comments with email addresses, but those were “concocted.”

This case reminds me of a 1997 Wisconsin case, In re Goetz. Attorney Paul Goetz was publicly reprimand for, among other things, using fictitious (though realistic) names in inflammatory letters, highly critical of the incumbent district attorney (against whom Goetz) would later run and win. (He was also reprimanded for a conflict of interest, “subsequent use of his public office to deter inquiry into that misrepresentation” and for failure to cooperate with the investigation.) Goetz challenged the constitutionality of the Office of Lawyer Regulation’s predecessor, the Board of Attorneys Professional Responsibility, charging him for using fake names regarding one of the letters he submitted to a newspaper for publication. Goetz argued that the letter was “core political speech” entitled to First Amendment protection, and moreover, he was entitled to use a fake name.

The referee and the Court rejected that argument, and agreed with the Board that it might have been different had Goetz used “Anonymous” or another obviously fabricated name, or if he had asked that his own name not be published. But, Goetz testified that the newspaper might not publish an anonymous letter, and may have declined to protect his identity had he given it; the referee and Court found Goetz’s actions deceptive. “Attorney Goetz misrepresented his identity as a lawyer attacking the professional integrity of the chief law enforcement official of the county, thereby reflecting adversely on Attorney Goetz's professional position.” He was not reprimanded for the content of the letter.

So, what’s the takeaway here? Goetz was decided in 1997 and while things change (and the Rules and discipline decisions take awhile to catch up), I don’t think this topic has evolved all that much. As I wrote in my very first legal ethics article ever, (7 years ago, but 20 years after Goetz), “writing a snarky letter (or several) to a local newspaper, thus far, is safe.” I think we can assume that writing a snarky blog comment (particularly on a snarky blog) is also safe. But if you’re going to use a fake name, use an obviously fake one, and don’t try to imitate a real person, particularly in a forum that has resources to figure out who you really are.