SMH means “Shaking My Head”:  in this instance, in disbelief.  The ABA Journal recently wrote about a lawyer in Louisiana who was disbarred as the result of her engagement in a social media campaign to contact 2 judges “she accused of being unwilling to consider the evidence in two custody cases involving allegations of child sexual abuse.”  Joyce Nanine McCool was disbarred in a 4-3 decision by the Louisiana Supreme Court, notwithstanding recommendations by both a hearing board and a disciplinary board that she receive a suspension of a year and a day.  The majority opinion found that McCool, by asserting that her social media campaign was protected by the First Amendment, displayed an “utter lack of remorse” and a “defiant attitude…We disagree and take strong exception to respondent’s artful attempt to use the First Amendment as a shield against her clearly and convincingly proven ethical misconduct.”  The Court also found that she had made many “false, misleading and inflammatory statements” about the two judges, and that she “solicited others to make ex parte contact with the judges-and with the state supreme court-to express feeling about the cases, which were sealed domestic proceedings.”

What does this mean for employers and their attorneys?  Attorneys are held to a higher standard as a result of the Ethical Rules that govern them.  There have been a number of cases over the past several years where attorneys have used social media to improperly express their opinions on active cases, and, as with Ms. McCool, attempted to influence the outcome of pending cases.  There are also instances of employers (and non-employers), who are parties to a lawsuit, who attempt to influence the outcome of a case through social media.  This can be done in many ways, including posting comments numerous times on news stories and issuing press releases or other stories that become searchable on the Internet.  One of the most serious instances of social media misconduct occurred in the US Attorney’s office, interestingly, also in Louisiana, where the US Attorney and several Assistant US Attorneys were forced to resign as the result of “anonymous posting” about a pending criminal investigation.  NOLA.com recently published an article with a link to the full Department of Justice investigation into this matter.

Practice pointer.  Today, many individuals as well as employers turn to social media to influence others.  When used properly, social media can be a very powerful tool.  When used improperly, social media can have extremely severe negative consequences.  Lawyers and Employers must proceed with caution when using social media in an attempt to influence ongoing or potential litigation