Comprehensive Ethics Opinion on Lawyers’ Use of Social Media issued in West Virginia

Date 10/27/2015.

On September 22, 2015, the West Virginia Office of Disciplinary Counsel Legal Ethics issued a comprehensive opinion to provide the guidance for lawyers on the use of social media for both business and personal matters.  West Virginia Office of Disciplinary Counsel Legal Ethics Opinion 2015-02 Lawyer Disciplinary Board – L.E.O. 2015-02

The Disciplinary Board provided guidance on whether attorneys may do the following:

  1. Advise clients about modifying the content of the client’s social media networking website. Attorneys may advise clients about including, adding or removing social media content. However, attorneys must make sure that deleting information does not constitute spoliation or is otherwise illegal. They “must take all appropriate steps to preserve the aforementioned information in the event that it is deemed discoverable or becomes relevant to clients’ cases”. If attorneys know that the client posted false information, they may not present it as truthful in client’s case. Attorneys must be mindful of the consequences of their actions when advising their clients. Relevant rules: WVRPC 3.3 (candor to the tribunal), 3.4 (fairness to opposing party and counsels), 4.1 (truthfulness in statements to others) shall be reviewed when advising about the content of their clients’ social networking website.
  2. Connect with clients or former clients on social media.  Attorneys may connect. However, they should maintain a professional relationship with their clients. Duty of confidentiality should also be honored when posting.
  3. Contact a represented person through a social media. Attorneys may not contact the represented person pursuant to WVRPC 4.2 (communication with persons represented by counsel). Notwithstanding the above, attorneys may access the public portion of the person’s social media page, “as any information the represented person shares publicly is akin to any public statement the person makes”.
  4. Contact an unrepresented person through a social media, or view information that would otherwise be private/unavailable to the public. Attorneys may contact the unrepresented person but may not use pretextual basis for viewing private information pursuant toWVRPC 4.3 (dealing with unrepresented person). Using the assistance of a third party to contact an unrepresented person through social media would be considered pretextual and would violate WCRPC 4.1 and 8.4(c).
  5. Use information gathered on social media website in client-related matters. Attorneys may use this information, provided that it was obtained in compliance with the WVRPC. Occasionally, information posted on social media may be used against a client’s or against an opposing party’s interests, or in discovery.
  6. Accept clients’ reviews on social media. Attorneys may accept reviews but shall monitor them for accuracy. “Clients, former clients and professional colleagues are among the users who may engage in endorsing an individual’s skills as listed on their profile…Although attorneys are not responsible for the content others post on the attorneys’ social networking website, attorneys: (1) should monitor their social networking website; (2) must verify the accuracy of any information posted on their social networking website; and (3) must remove or correct any inaccurate endorsements”. Attorneys shall be mindful not to violate WVRPC7.1 (communications concerning a lawyer’s service).
  7. Comment on endorsements. Attorneys may comment or respond to reviews and endorsements, provided that they do not disclose confidential information (WVRPC 1.6, confidentiality of information), nor violate WVRPC 3.6 (trial publicity).
  8. Endorse other attorneys on social media. Attorneys may endorse colleagues. However, they shall be mindful to “refrain from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation”. See WVRPC 8.4(c) (misconduct).
  9. Review a jurors’ Internet presence. Attorneys may review jurors’ presence. However, “attorneys are prohibited from attempting to access the private section of a juror’s social media page, as doing so would violate Rule 3.5” WVRPC (impartiality and decorum in the tribunal). Attorneys may not use the assistance of a third party to contact jurors in order to access the private section of their social networking website, as this would constitute an ex parte communication in violation of WVRPC3.5. Attorneys should also be mindful of WVRPC 3.6 (trial publicity).
  10. Connect with judges on social media. Attorneys may connect with judges provided that their purpose is not to influence the judge (WVRPC 3.5, impartiality and decorum in the tribunal). Attorneys should also be mindful of WVRPC 8.2 (judicial and legal officials).
  11. Advertise on social media. Attorneys may advertise on social media provided that it is in compliance with the WVRPC 7.2 (advertising), 7.1 (communications concerning a lawyer’s service), and 7.3 (solicitation of clients). Finally, “West Virginia does not recognize specialization in the practice of law. Accordingly, … attorneys may not state or imply that they are certified as specialists in a particular field of law”. However, they may advertise that they practice in a particular field of law, WVRPC 7.4 (communication of fields of practice and specialization).
  12. Form prospective attorney-client relationship on a social media. Attorneys may form an attorney client relationship via social media “if an individual’s electronic communication with an attorney is determined to be a consultation.” WVRPC 1.18, duties to prospective client, applies.

Mentioned Authorities:

– McMillen v Hummingbird Speedway, Inc., No. 113-2010 CD (PaCt.Com.Ol. Jefferson County 2010)

– Romano v. Steelcase Inc (2010 NY Slip Op 20388)

 Relevant rules: West Virginia Rules of Professional Conduct: 1.1, competence; 1.6, confidentiality of information; 1.18, duties to prospective client; 3.3, candor toward the tribunal; 3.4, fairness to opposing party and counsels; 3.5, impartiality and decorum in the tribunal; 3.6, trial publicity;; 4.2, communication with persons represented by counsel; 4.3, dealing with unrepresented person; 7.1, communications concerning a lawyer’s service; 7.2, advertising; 7.3, solicitation of clients; 7.4, communication of fields of practice and specialization; 8.2, judicial and legal officials; 8.4, misconduct.

For more information, Nathan M. Crystal

Full opinion  here

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