New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

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