The lawyers' right to tweet

An article in the February 25th edition of the ABA Journal presents an issue at the very core of this blog.

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The statement which is of particular interest is George Washington University Law School Professor Jonathan Turley’s response to the firing:

He stated:

"There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen."

The issue that we must struggle with is whether lawyers, as “officers of the court” are ever really considered to be private citizens. It is clear that, as lawyers, were are held to the state bar’s Rules of Professional Conduct 24 hours a day, 7 days a week. Our bar cards are not retired for the evening when we leave the office. Indeed, there is no question that lawyers are held to a higher standard than laypeople. Therefore, while the firing of a layperson might otherwise be an infringement of the First Amendment right to Free Speech, a separate analysis must be conducted with regard to lawyers.

When a lawyer speaks, even if not done on company time, he or she is representing not only the company that they work for, but also the law. Here, there is not only an issue that Cox was an attorney, but also that he was employed by the Indiana Attorney General’s Office. Therefore, not only was his statement made as an officer of the court, but also, as a State employee.

In this situation, I believe the waters are further muddied by the State+officer of the court combination. While it could be argued that as officers of the court we have a greater right than the layperson, due to the fact that we know the law, where the State becomes involved, the issue is framed in a significantly different manner.

It comes down to the issue of professionalism: How can the general public feel safe that such a man represents the State in court? How can they ensure that their tax dollars are adequately being spent? What sort of message does the tweet send to the general public about he sort of attorneys that represent the state?

**A screenshot of the actual tweet that caused Cox to be fired.