The new age of digital communication has opened up all kinds of possibilities. Many of them involve questions of security and trust. Not only does digital information lack the context that we have come to rely on in making judgments about reliability, but the nature and content (“user name”) of digital media itself can deceive the user into thinking that they are anonymous and their speech consequence free. It seems all should have learned this by now but some Federal prosecutors in New Orleans did not. As the Fifth Circuit put it:
First, the government argues that anonymity diminishes the cloak of authority that would otherwise surround the prosecutor’s pronouncements. Because the online community does not know that a prosecutor is speaking, it cannot be adversely influenced by his inflammatory opinions. Second, the extent of the publicity surrounding the anonymous comments is uncertain because no one knows how many people read online comments to the newspaper of record. Third, these comments amounted to no more than voices in a chorus of public opinion on the Danziger Bridge trial and were no more likely to exert an influence than those of any other chorister. These arguments are not insubstantial, but they are outweighed by the insidious nature of prosecutorial anonymity, the growing influence of online communications to mold public opinion in our society, and the danger of mob reactions.
Anonymity provokes irresponsibility in the speaker. A prosecutor may attempt to comment anonymously in a pending case, whether in a bar, on a talk radio show, or online. It is hard to cloak one’s experiences, however, and listeners can easily infer, as a number of readers within the New Orleans USAO evidently did, that someone with “insider knowledge” is making thecomments. The speaker thus trades on his air of self-importance and his special knowledge, while imparting a biased and dramatic flair to his anonymous commentary.
At pages 33-34. Perhaps, the most troubling aspect is not that a Federal criminal prosecutor was posting anonymous comments trading on inside information but that we still don’t know exactly how many were. The Court found the government’s zeal to get the bottom of the matter somewhat lacking. Which seems to be consistent with the “everybody’s doing it” spirit which seems to pervaded the US Attorney’s office in New Orleans from top to bottom.
Someone once said the organization is always more primitive than the individual. Institutional ethics presents many intractable challenges because they shape the perceptions of the individuals who belong to the institution in ways that favor the institution. “Circling the wagons” is an emotional response that cannot be unlearned, no matter how sophisticated the wagon drivers are. Digital media are highly adept at reinforcing these same sorts of biases. You may think that you are searching Google but Google (and all the rest) are really searching you. To figure out how to cater to your biases, to elicit an emotional reaction, to get you to pull the trigger on some decision to part with something dear to you. The Fifth Circuit’s warning about the danger of mob reactions is well taken, as a certain dentist might agree. The prosecutor’s delusion that they were acting in the public interest is frightening: they were actually juggling a form of dynamite whose explosive power we are only now starting to glimpse.
Legal ethics has traditionally focused on the indivdual. Discipline is meted out to individual lawyers who violate rules largely written to guide individual, not insitutional behavior. An insitutional failure of the type presented here just isn’t contemplated by the rules. We have talked about discipline of law firms for many years, at least since Ted Schneyer’s 1991 Cornell law review article but only two United States jurisdictions, New York and New Jersey, have rules providing for law firm discipline. The concept of “ethical infrastructure” remains largely an academic discusion. When was the last time you saw a continuing education class devoted to creating a law firm’s ethical infrastructure? We are still treating the profession as if we were all solo practitioners?
United States v. Bowen, et al., isn’t an outlier but a symptom of the biggest problem in legal ethics today: complacency.