New legal ethics guidelines developed by the Commercial and Federal Litigation Section of the New York State Bar Association impose a duty of technology competence on New York lawyers. Although they are advisory in nature, the guidelines state that all New York lawyers must develop appropriate social media skills.

For example, Guideline No. 1 recognizes that “[a] lawyer cannot [provide competent legal representation] absent a working knowledge of the benefits and risks associated with the use of social media.“

As explained in the Guidelines, New York lawyers, at a minimum, must be conversant with the basics of each social media network that a lawyer or his or her client may use. Guideline No. 1 expressly states that lawyer competence may require understanding the lengthy “terms of service” of a social media platform and whether the platform’s features raise ethical issues.  

Under Guideline No. 2, a lawyer’s profile on a social media website that includes statements about an attorney’s skills, areas of practice, endorsements, or testimonials from clients or colleagues is considered “attorney advertising.” As a result, the attorney must include disclaimers in the profile, such as: “Prior results do not guarantee a similar outcome.” Although the guidelines recognize that including disclaimers within the confines of a particular social media platform, such as Twitter’s 140 character limit, may not be possible, the ethical mandate must be followed because “[a]n attorney’s ethical obligations apply to all forms of covered communications, including social media.”

Guideline No. 3 indicates a lawyer may provide general answers to legal questions asked on social media, but cannot provide specific legal advice on a social media network unless the lawyer is communicating with a client. If an attorney utilizes social media to communicate with a client relating to legal representation, the attorney should retain records of those communications, just as she would if the communications were memorialized on paper.

Under Guideline No. 4, a lawyer is permitted to view the public portion of a person’s social media website, profile or posts for the purpose of obtaining information about the person for use in litigation, whether that person is represented by an attorney or not. “Public” refers to information available to anyone viewing a social media network without the need for permission from the person whose account is being viewed. In order to view an individual’s restricted portion of a website, however, the lawyer must request permission, using his or her full name in the request, and may not create a different or false profile in order to mask the lawyer’s identity. Importantly, the lawyer may not use a legal assistant, secretary, other agent or the lawyer’s obtain access to the restricted portion of an individual’s website or profile.

Under Guideline No. 5, a lawyer may advise a client to remove content from a social media website, whether posted by the client or someone else, as long as there is no violation of law relating to the preservation of information. Also, a lawyer may advise a client about posting new content on a social media website or profile, as long as the proposed content is not known to be false by the lawyer. A lawyer may also respond to online reviews as long as the responses are accurate and truthful and do not contain confidential information or client confidences. 

Guideline 6 permits a lawyer to review a juror’s or potential juror’s Internet presence, including the social media profile of a prospective juror or sitting juror or postings by the juror or potential juror in advance of and during a trial, provided that there is no communication with the juror. However, the lawyer may not make misrepresentations or engage in deceit in order to be able to view the social media profile of a prospective juror or sitting juror, nor may a lawyer direct others to do so.

Finally, the New York ethical guidelines address a topic infrequently tackled by ethics committees throughout the country: a lawyer’s communication with judicial officers over social media. Guideline No. 7 provides that a lawyer may not communicate with a judicial officer over social media if the lawyer intends to influence the judicial officer in the performance of his or her official duties.

As the new ethical guidelines indicate, lawyers must appreciate that social media communications that reach across multiple jurisdictions may implicate other states’ ethics rules.  Lawyers must ensure compliance with the various ethical requirements of each jurisdiction in which they practice.

New Social Media Ethics Guidelines developed by the Commercial and Federal Litigation Section of the New York State Bar Association can be accessed here – 2015 Social Media Ethics Guidelines of the New York State Bar Association

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