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Attorney discusses the dangers of social media in the legal field

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Although social media may encourage a more casual environment, one attorney cautioned other legal professionals to act as polished as one would in the courtroom when it comes to work.

Rachael Cipoletti, chief lawyer with the West Virginia Office of Disciplinary Counsel, recently spoke to attorneys attending the West Virginia Bar Association's 127th annual meeting about the dangers and benefits of social media.

Cipoletti cited a 2012 legal technology survey report by the American Bar Association that stated 88 percent of lawyers said their firms have a presence on LinkedIn and 55 percent are on Facebook.

"Someone who interacts with your business has a Facebook account," Cipoletti told attorneys. ‘If someone has a Facebook or Twitter account and doesn't know what they're doing, it could affect your business."

And ignorance of these platforms is no excuse, Cipoletti said, citing the ABA's recently adopted rule. This rule states in part that attorneys should keep informed about changes in law, including relevant technology.

"Griffin v. Maryland was a clear holding that the lawyer said, ‘I don't know anything about Facebook' and the judge said, ‘That's your fault and you should.' It's a matter of competence for attorneys to learn it," Cipoletti said.

Lawyers also should be careful before retorting to a less than flattering consumer review. Cipoletti cited a Georgia case where a client fired his attorney and posted a review.

Cipoletti explained the attorney saw the post and responded back, calling the client a liar and putting confidential information in the response.

"The lawyer was reprimanded by the board but the Supreme Court sent it back. We're waiting to see what happens next," she said.

Lawyers also should be careful not to tell clients to delete Facebook posts relevant to the case upon receiving a discovery request.

In the case of Isaiah Lester v. Allied Concrete Co., the plaintiff was asserting wrongful death of his wife. Cipoletti explained the attorney told the paralegal to get the client to clean up his Facebook page, especially after the client posted a photo of himself wearing a t-shirt that said "I heart hot moms."  

The client ended up deleting his Facebook page and the lawyer answered on the discovery request that the client did not have a Facebook page.

"The lawyer was sanctioned over $500,000 for deleting and destroying evidence and it was referred to the Virginia State Bar for a separate investigation. That lawyer now has agreed to a suspension of five years."

Cipoletti said lawyers can tell clients to act more professionally on social media but should never tell the client to delete evidence.

"You can't tell them to alter evidence, especially after a subpoena has been issued," Cipoletti said.

She said lawyers can use social networks to investigate but they can't lie about their identity.

When it comes to who attorneys can friend, it may get tricky. Cipoletti said attorneys can friend a witness but they can't create a fake profile to get info. They also can't get an investigator to create a fake profile to get info, either.  

What about friending a juror? Cipoletti said if lawyers think the juror is engaging in misconduct, they should report it, but a lawyer cannot make direct or indirect communication to a juror when trial is in session.

"You can monitor a juror's social network posts during voir dire," Cipoletti said. "If they are tweeting during trial, you can discuss whether the juror is engaging in misconduct, especially if there is a gag rule."

Friending a judge also may get tricky. Cipoletti said the ABA indicates a judge can use social media but of course, can't create an appearance of impropriety.

"We live in a small state and there are less than 7,000 lawyers in this state. It's a small bar, small bench. Someone knows someone. If you're friends with the judge in reality, I'm not sure what the difference is with having friends virtually. A case in Florida indicates you cannot be friends with the judge on Facebook because it creates an appearance of impropriety."

She said law firms and attorneys should be careful about how they portray themselves or their skills on social media.  

"You can't call yourself a specialist," Cipoletti said. "You need to be careful because there are specialty things that come up and we don't recognize specialties in the state of West Virginia. And we don't recognize it on LinkedIn either."

Cipoletti said if attorneys remember nothing else about social media, then it's to remember to think twice about funny posts. Cipoletti talked about a case in Florida where a defendant's family brought him clothes to wear, including a pair of leopard-print underwear.

The public defender took a picture of the underwear, created a private Facebook post on her personal page, asking if people thought that was appropriate court attire. One of her friends later turned the picture into the judge. The judge declared a mistrial and the public defender was fired.

"If you remember nothing else, don't post a picture of your client's underwear, no matter how funny it seems at the time," Cipoletti said. "It will get you in trouble and you will lose your job."