Monday, August 11, 2014

New York State Bar Association issues social media guidelines to help lawyers navigate ethical issues

The Social Media Committee of the Federal and Commercial Litigation  Section of the New York Bar Association has issued guidelines to help lawyers navigate the ethical issues raised by social media use to advertise services (see California ethics opinion warning social media "boasting" can be considered "solicitation), offer legal advice and gather information about prospective jurors among other concerns (see New York ethics opinion holding OK for lawyers to use social media to research jurors within limits).  For those interested in incorporating some real-life professional ethics issues into your classroom simulations and assignments, these guidelines provide an excellent source of ideas for some of the questions our students will face when they enter practice.  You can access the full report from the NYSBA Social Media Committee here. In the meantime, here is an excerpt from the introduction as well as some specific bullet point items the committee addressed.

 

Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association

Social media networks such as LinkedIn, Twitter and Facebook are becoming indispensable tools used by legal professionals and those with whom they communicate. Particularly, in conjunction with the expansion of mobile technologies in the legal profession, social media platforms have transformed the ways in which lawyers communicate. As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more technologically advanced, so too do the ethical issues facing lawyers. Accordingly, the Commercial and Federal Litigation Section of the New York State Bar Association developed these social media ethics guidelines (the “Guidelines”) to assist lawyers in understanding the ethical challenges of social media.

 

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Lawyers need to appreciate that social media communications that reach across multiple jurisdictions may implicate other states’ ethics rules. Lawyers should ensure compliance with the ethical requirements of each jurisdiction in which they practice, which may vary considerably. Lawyers must be conversant with the nuances of each social media network the lawyer or his or her client may use. This is a serious challenge that lawyers must appreciate and cannot take lightly.

 

Guideline No. 1.A - Applicability of Advertising Rules

A lawyer’s social media profile that is used only for personal purposes (i.e., to maintain contact with friends and family) is not subject to attorney advertising and solicitation rules. However, a social media profile that a lawyer primarily uses for the purpose of her and her law firm’s business is subject to such rules.

 

Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media.

Lawyers and law firms shall not advertise areas of practice under headings in social media platforms that include the terms “specialist,” unless the lawyer is certified by the appropriate accrediting body in the particular area.

 

Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content

When inviting others to view a lawyer’s social media network, account, or profile, a lawyer must be mindful of the traditional ethical restrictions relating to solicitation and the recommendations of lawyers. A lawyer is responsible for all content that the lawyer posts on her social media website or profile

. . . .

A lawyer has a duty to monitor her social media profile, as well as blogs, for comments and recommendations to ensure compliance with ethics rules.

 

Guideline No. 2.A: Provision of General Information

A lawyer may provide general answers to legal questions asked on social media. A lawyer, however, cannot provide specific legal advice on a social media network because a lawyer’s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.

 

Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications

Due to the “live” nature of real-time or interactive computer-accessed communications, which includes, among other things, instant messaging and communications transmitted through a chat room, a lawyer may not “solicit” business from the public through such means.

 

Guideline No. 3.A: Viewing a Public Portion of a Social Media Website

A lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer. However, the lawyer must be aware that certain social media networks may send an automatic message to the person whose account is being viewed which identifies the person viewing the account as well as other information about such person.

 

Guideline No. 3.B: Contacting an Unrepresented Party to View a Restricted Portion of a Social Media Website

A lawyer may request permission to view the restricted portion of an unrepresented person’s social media website or profile. However, the lawyer must use her full name and an accurate profile, and she may not create a different or false profile in order to mask her identity.

 

Guideline No. 3.C: Viewing A Represented Party’s Restricted Social Media Website

A lawyer shall not contact a represented person to seek to review the restricted portion of the person’s social media profile unless an express authorization has been furnished by such person.

 

Guideline No. 4.A: Removing Existing Social Media Information

A lawyer may advise a client as to what content may be maintained or made private on her social media account, as well as to what content may be “taken down” or removed, whether posted by the client or someone else, as long as there is no violation of common law or any statute, rule, or regulation relating to the preservation of information.

Unless an appropriate record of the social media information or data is preserved, a party or nonparty may not delete information from a social media profile that is subject to a duty to preserve.

 

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Guideline No. 5.A: Lawyers May Conduct Social Media Research

A lawyer may research a prospective or sitting juror’s public social media website, account, profile, and posts.

 

Guideline No. 5.B: A Juror’s Social Media Website, Profile, or Posts May Be Viewed As Long As There Is No Communication with the Juror

A lawyer may view the social media website, profile, or posts of a prospective juror or sitting juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror. 

 

Guideline No. 5.C: Deceit Shall Not Be Used to View a Juror’s Social Media Profile

A lawyer may not make misrepresentations or engage in deceit in order to be able to view the social media, account, profile, or posts of a prospective juror or sitting juror, nor may a lawyer direct others to do so.

 

Guideline No. 5.D: Juror Contact During Trial

After a juror has been sworn and until a trial is completed, a lawyer may view or monitor the social media profile or posts of a juror provided that there is no communication (whether initiated by the lawyer, agent or automatically generated by the social media network) with the juror. 

 

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You can continue reading the full report here.

Hat tip to the ABA Section on Litigation Newsletter.

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