During the 25 years or so that I have written this ethics column, the titular topic may be the most challenging among those I have addressed. If one is falsely accused of some despicable act, with no details and no opportunity to confront the unnamed accuser, do the rules of professional responsibility suggest how a lawyer should reply? Let's be more specific.
What if an anonymous and amorphous accusation of racist behavior, without details of specific words used or other details, is recklessly repeated without an opportunity for the accused person to confront the accuser or rebut unspecified facts? How should the ethical lawyer respond? Most lawyers, and most reasonable people, would expect that such a serious false accusation, or repeating such a false accusation, should surely be actionable in some manner.
Those who weaponize the accusation of racism for improper motives continue to make it harder for those who seek to eradicate racism where it truly exists.
Those who believe in the approach of an "eye for an eye" may seek retribution. Adherents of Stoicism might counsel a "grin and bear it" approach. Christians may counsel a "turn the other cheek" response. Others may rely on karma.
Delaware Cases
Relatedly, a Delaware Supreme Court decision found that a defamation claim based on a member of the legal profession falsely accusing a lawyer of being a racist was barred by the First Amendment guarantees of free speech and observed that "it is clear to us that Americans disagree about a long and growing list of things that to some are racist and to others are not." Cousins v. Goodier, Del. Supr., No. 272, 2021, Slip op. at 28 (Aug. 16, 2022).
Delaware's High Court referred to the evolving definition of racism and cited to the recently updated definition of the word in a leading dictionary that now includes systemic racism, id. at n. 103, while also noting that the term "racist" has been used so variously as to have been "drain[ed]...of its former, decidedly opprobrious meaning" and to now "fit comfortably within the immunity for name-calling." Id. at n.104 (quoting Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988)).
When an accusation is made by an unidentified person, options may be limited. In 2005, the Delaware Supreme Court reasoned in Doe v. Cahill that only in certain circumstances can one force the disclosure of the identity of an anonymous online accuser.
An activist affiliated with Harvard Law School has described Christianity as a religion guilty of systemic racism, just as many have described our criminal justice system. So what do those charges mean for Christians or those who play key roles in the criminal justice system?
ABA Opinion
The American Bar Association (ABA) Model Rules of Professional Conduct do not provide clear direction on the titular issue. In 2021, the ABA issued a formal opinion on the related topic of whether, and how, to respond to online criticism. See Standing Committee on Ethics and Professional Responsibility, Formal Opinion 496 "Responding to Online Criticism," American Bar Association (Jan. 13, 2021).
This opinion speaks directly to lawyers faced with online attacks. The opinion focuses on the Model Rules of Professional Conduct that advise lawyers how to respond to their client, former clients, opposing counsel, and opposing counsel's clients. The ABA recommends that in these scenarios, the lawyer either not respond to the negative posts, respond by asking the person who is posting to allow for a private discussion offline, or respond by stating that professional obligations do not permit the attorney to respond. The committee noted that any response to the negative review or comment may be counterproductive.
In sum, there is no panacea for dealing with false accusations, especially anonymous ones. One goal is not to react in a manner that would run afoul of the aphorism that two wrongs don't make a right. Although revenge might best be served cold, a Chinese saying provides that a person who seeks revenge should dig two graves: one for the person against whom revenge is sought and one for the person seeking revenge. Life is not fair.
Originally published by The Bencher .
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