Opinion Details How Lawyers May Use Social Media Ethically

By Joan C. Rogers

Oct. 9 — Lawyers not only may use social media in their law practice but also must know how to advise clients about legal issues in their use of social media, according to a Sept. 22 ethics opinion from the West Virginia bar's disciplinary board.

Although it mentions only one of the many pronouncements from other bar groups on this topic, the broad-ranging opinion provides an overview of what lawyers may, must and must not do under the West Virginia Rules of Professional Conduct regarding social networking.

The board cautioned “Attorneys should be mindful that conduct prohibited in other manners of communication is prohibited in the world of social media and social networking websites, as well.”

Lawyers must be especially wary of violating Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) in light of the ease of creating a false profile or posting inaccurate or embellished information, the opinion states.

Because use of social media is evolving rapidly, lawyers should comply with the spirit of the professional conduct rules when using social media and social networking websites and not treat this opinion as the final word on the subject, the board instructed.

One Dozen Ground Rules

To meet their duty of competence under Rule 1.1, the board said, lawyers need to understand how social networking websites function, and they must be able to advise their clients about issues that arise in their own use of social media.

The opinion provides guidance on a dozen issues this subject raises. The board found that lawyers are free to:

▸advise clients about the content of their social networking website, including removing or adding information;

▸connect with clients and former clients on a social networking website;

▸contact unrepresented persons through a social networking website, so long as no pretexts are used to gain access to private information;

▸view the public portion of a represented person's social media presence but not contact them through a social networking site;

▸use information from a social networking website in client matters;

▸accept client reviews if they are monitored for accuracy;

▸comment on or respond to reviews or endorsements;

▸endorse other lawyers on social networking websites;

▸review jurors' Internet presence;

▸connect with judges on a social networking website if the purpose is not to influence the judge in official duties;

▸advertise on social networking sites in compliance with advertising and solicitation rules; and

▸form an attorney-client relationship via a social networking website.

Advising Clients

Lawyers may use information they obtain ethically from social networking websites against their clients' adversaries, the board said.

In addition, it said, lawyers must keep up on and advise clients about what the clients are doing on social media, because opposing counsel may be monitoring them and could use such information against the clients' interests.

The opinion identifies several rules that attorneys must follow in advising clients about the content of their websites: Rule 3.3 (candor toward tribunals); Rule 3.4(a) (unlawfully destroying or obstructing access to evidence, or assisting others to do so); and Rule 4.1 (truthfulness in statements to others).

Lawyers may advise clients to change the privacy settings of their social media pages but may not instruct them to destroy or conceal any relevant content, the board advised.

Moreover, it said, lawyers may instruct their clients to delete potentially damaging information if that advice doesn't lead to violation of the law or spoliation of evidence. But the deleted information must be preserved, the board said, in case it becomes relevant to the client's case or is deemed discoverable.

Lawyers must not advise clients to post false or misleading information, it said. If a lawyer finds out the clients have done this, the lawyer may not present it as truthful evidence in the client's case.

Contact With Others

The opinion also provides advice about contacting various categories of people through social media.

Clients and former clients. Lawyers may communicate with clients and former clients through social media, but should be professional in doing so and must not violate their duty of confidentiality. Lawyers who use social media to communicate with clients about their legal matters should retain records of any legal advice.

Represented persons. Under Rule 4.2, lawyers may access the public portions of a represented person's social media pages, but they may not contact or “friend” a represented person. Moreover, it would violate Rules 4.1 and 8.4(c) to get a third person to make a friend request as a pretext to gain access to the represented person's private social media information.

Unrepresented persons. Lawyers may contact an unrepresented person in connection with a client matter through a social networking website, but they may not use a pretextual basis for viewing information that would be private or unavailable to the general public. Lawyers contacting an unrepresented person must use their actual name and state their purpose; not doing so would false imply they are disinterested, which implication would be contrary to Rule 4.3.

Jurors. Lawyers may review the public sections of a juror's social networking websites, but they may not try to access the private portions or get anyone else to do so, as that would violate the prohibition against ex parte communication in Rule 3.5 (impartiality in tribunal).

Judges. Lawyers may connect with judges on social networking sites unless their purpose is to influence the judge in performing her official duties, which would violate Rule 3.5. Lawyers must not make false statements about judges on social media in violation of Rule 8.2.

Lawyers should be mindful of the restrictions on trial publicity in Rule 3.6, the board advised. It said an attorney's social networking website is subject to Rule 3.6, notwithstanding what privacy settings the lawyer uses, as any comments shared are disseminated to those with whom the lawyer is connected via the social networking site.

Reviews and Endorsements

Lawyers generally are not responsible for what's posted on their social networking sites by clients, ex-clients, professional colleagues or others, the board acknowledged. Nevertheless, it said, lawyers should monitor their sites and must verify the accuracy of any information posted there, and remove or correct any inaccurate endorsements.

The board said lawyers must be careful not to disclose confidential information in violation of Rule 1.6 when responding to reviews on social networking sites. The self-defense exception in Rule 1.6(b)(5) does not allow lawyers to disclose confidential information in response to a review or endorsement on social media, it advised.

Lawyers generally may endorse other attorneys on social networking websites but must be honest and only provide endorsements that are accurate and not misleading, the board advised.

The better practice, it said, is simply to refrain from commenting about other judges or attorneys via social media.

Advertising and Solicitation

It's permissible under Rule 7.2 for lawyers to advertise on social media or social networking websites, but they must not make false or misleading communications about themselves or their services in violation of Rule 7.1, the board said.

Lawyers also must comply with the prohibition in Rule 7.3 against real-time electronic contact, which “arguably includes contact via social media and social networking websites in the forms of live chats and comments to individual's posts,” the opinion states.

Under Rule 7.4, the board said, lawyers may communicate that they do or don't practice in particular fields of law, but they may not state or imply that they are specialists because “West Virginia does not recognize specialization in the practice of law.”

Finally, the opinion advises lawyers to consult Rule 1.18, and Comment [2] in particular, about the dangers of forming an unintended attorney-client relationship on a social media site.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Full text at http://src.bna.com/xB.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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