In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines. See W.V. L.E.O. No. 2015-02 (Sep. 18, 2015). The term “social media” includes “forms of electronic communication” through which users “create online communities to share information, ideas, personal messages, and other content.” Id. at 1. Considering the ethical issues attendant to a lawyer using sites such as “Facebook, Twitter, LinkedIn” and the like, the Board advised as follows:
- Maintaining Competency. To be “competent,” a lawyer should have an understanding of how social media and social networking sites function. Further, lawyers should be “equipt to advise their clients” about how these sites may affect client matters.
- Taking Down Posts. A lawyer may advise a client “to change the privacy settings” of social media pages so as “to restrict or expand whom may see the information shared on such pages.” Although a lawyer may not advise a client to “destroy, alter or conceal any relevant content” on a social media site, a lawyer may advise a client “to delete information from the client’s social media pages that may be damaging”—so long as the lawyer’s “conduct does not constitute spoliation” or otherwise illegal conduct. To this end, a lawyer “must take the appropriate steps to preserve the aforementioned information in the event that it is deemed discoverable or becomes relevant” to the client’s matter.
- Avoiding Contact with Represented Persons. A lawyer “may not contact a represented person through social media or through a social networking website,” nor may a lawyer send a “friend request” to a represented person.
- Contacting Unrepresented Persons. A lawyer may not contact an unrepresented person on social media using a pretext or false name. Nor may a lawyer imply that the lawyer is disinterested. Furthermore, a lawyer should avoid giving legal advice to unrepresented persons.
- Monitoring Third-Party Reviews and Endorsements. Although a lawyer is “not responsible for the content others post” on the lawyer’s social networking websites, lawyers: “(1) should monitor their social networking websites; (2) must verify the accuracy of any information posted on their social networking websites; and (3) must remove or correct any inaccurate endorsements.” The Board noted that these “obligations exist regardless of whether the information is posted by the attorney, a client, a former client or a professional colleague.”
- Protecting Confidentiality. A lawyer must “be mindful not to disclose confidential client information” when posting on social media.
- Being Honest in Endorsing Other Lawyers. A lawyer may endorse a colleague on social media. However, any such endorsement “must be
honest and only provide endorsements that are accurate and not misleading.”
- Researching Jurors. A lawyer may “review the public sections of a juror’s social networking websites.” However, a lawyer is “prohibited from attempting to access the private sections of a juror’s social media page.”
- Friending Judges. A lawyer may “connect with judges on social media or social networking websites.” However, such a connection must not be made if the purpose of the contact is “to influence the judge in performing his or her official duties.”
- Avoiding Inadvertent Lawyer-Client Relationships. A lawyer must be mindful that “a prospective attorney-client relationship may be formed via social media or on a social networking website if an individual’s electronic communication” rises to the level of a “consultation.” Under the comments to ABA Model Rules of Professional Conduct Rule 1.18, a “consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.”
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