Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which disbarred a former Assistant U.S. Attorney for making numerous anonymous improper and inflammatory comments on the internet related to pending criminal cases. The disciplinary case is: Supreme Court of Louisiana v. In Re: Salvador R. Perricone, NO. 2018-B-1233 (12/5/18) and the link to the case is here: https://www.ladb.org/DR/Default.aspx?DocID=9113&TAB=SC
According to the opinion, the underlying facts in the case were mostly undisputed. The lawyer began employment as an Assistant United States Attorney with the U.S. Attorney’s Office for the Eastern District of Louisiana in 1991. At all times relevant to these proceedings, the lawyer was a Senior Litigation Counsel and the USAO’s training officer.
During the time period of the allegations in the Complaint, The New Orleans Times-Picayune newspaper maintained an Internet website called nola.com which permitted readers to post comments to news stories using pseudonyms and anonymous identities.
Beginning in November 2007 through March 14, 2012, the lawyer posted numerous comments on various subjects on nola.com, including statements about pending criminal cases to which he and other prosecutors were assigned. “Of the more than 2,600 comments respondent posted, between one hundred and two hundred – less than one percent – related to matters being prosecuted by (the U.S. Attorney’s Office). None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: ‘campstblue’, ‘legacyusa’, ‘dramatis personae’, “Henry L. Mencken1951’, and ‘fed up.’”
The anonymous comments included, inter alia, statements such as:
“Heebe’s (the defendant) goose is cooked.”
“I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”
“Looks like Fazzio got a lemon. That book you refer to Mr. Rioux is about all of his losses. The guy is a clown and Fazzio is going down.”
The allegations were reported to the presiding judge who found the lawyer’s conduct improper and reversed the criminal convictions against the defendants and ordered a new trial. The judge also found that the lawyer “viewed posting of highly-opinionated comments as a ‘public service.” A disciplinary complaint was opened against the lawyer and, after disciplinary proceedings were completed, the Louisiana Disciplinary Board recommended that the lawyer be found guilty of the Bar Rule violations and disbarred.
The Louisiana Supreme Court opinion rejected post-traumatic stress as mitigation and stated that “the focus of the inquiry in the instant case is on the second factor – namely, whether respondent’s PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent’s mental condition may have caused his misconduct.” After reviewing aggravating and mitigating factors and case law, the opinion further stated:
“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.
In summary, considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment.”
Bottom line: This is another disciplinary case involving a criminal prosecutor improperly using the internet, this time it is a federal prosecutor who made biased and inflammatory comments. The Louisiana Supreme Court (and other courts) have made it very clear that it will not tolerate lawyers, especially those in a position of “public trust”, who anonymously (or otherwise) make biased, improper, and inflammatory comments on the internet.
Be careful out there.
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