On March 18, 2014, the Commercial and Federal Litigation Section of the New York State Bar Association (NYSBA) issued Social Media Ethics Guidelines “to assist lawyers in understanding the ethical challenges of social media.” These guidelines are derived from the New York Rules of Professional Conduct (NYRPC) and related ethics opinions, and focus on five specific topics: (1) attorney advertising via social media; (2) providing legal advice through social media; (3) acquiring and using evidence through social media; (4) communicating with clients regarding their social-media presence and activities; and (5) using social media to learn about prospective and sitting jurors. While other state bar associations have issued social-media guidelines (e.g., Minnesota and Washington), all attorneys should take notice of the NYSBA social-media guidelines because they are the most recent guidelines issued by any state bar association and thus may create a road map for other states to follow.
Attorney Advertising via Social Media
The NYSBA has prepared three guidelines relating to attorney advertising through social media:
- Guideline No. 1.A instructs that if an attorney uses a social-media profile primarily for business purposes, anything the attorney posts (or tweets) is subject to the NYRPC regarding attorney advertising. The comment to Guideline No.1.A explains that where an attorney’s social-media profile is used for personal and business purposes, the attorney should assume that attorney advertising and solicitation rules apply.
- Guideline No. 1.B provides that lawyers and law firms should not advertise practice areas on social-media platforms in groups or under headings that use the word “specialist” absent certification from an appropriate accrediting body in the particular area.
- Guideline No. 1.C indicates that lawyers should keep in mind the traditional ethical rules relating to client solicitation when inviting people to view the lawyer’s social-media profile. This guideline also provides that while lawyers are responsible for all content they post to their social-media profiles, they are only responsible for posts done by others when the lawyer caused such posts to be made. Lastly, this guideline suggests that lawyers have a duty to monitor their social-media profiles and blogs and to remove any third-party comments or recommendations posted thereto that violate state ethics rules.
Legal Advice Through Social Media
The NYSBA has prepared two guidelines relating to provision of legal advice through social media:
- Guideline No. 2.A states that a lawyer may provide general answers to legal questions on social media but should not provide specific legal advice.
- Guideline No. 2.B notes that a lawyer should not solicit clients through real-time, “live” computer-accessed communications, including instant messaging and Internet chat rooms. This guideline does not apply to emails and solicitations posted on websites, as they are not considered “real-time.” Notwithstanding these restrictions, the guideline suggests that lawyers may respond to unsolicited requests for legal assistance made during real-time communications but that any response should be transmitted in a confidential matter, through nonpublic means.
Acquisition and Use of Evidence from Social Media
The NYSBA has prepared four guidelines relating to using social media to gather evidence and then later relying on and using that evidence:
- Guideline No. 3.A provides that a lawyer may view the public portion of a person’s social-media profile or any public posts made by that person, even if he or she is represented by an attorney. However, this guideline and the related comment caution that lawyers should tread carefully when using social-media websites that send automatic messages to people whose social-media profiles are viewed, as these automatic messages have qualified as ethical violations when the notified party was a juror being investigated or monitored by the attorney.
- Guideline No. 3.B provides that a lawyer may ask a third party to view the restricted portion of his or her social-media profile provided that the third party is not represented by counsel and the requesting attorney discloses his or her full name, uses an accurate social-media profile, and truthfully answers all questions posed by the third party.
- Guideline No. 3.C provides, somewhat unclearly, that a lawyer may not ask a represented person to grant the lawyer access to the restricted portion of that person’s social-media profile without express authorization from that person.
- Guideline No. 3.D provides that a lawyer should not seek to skirt these guidelines or ethical rules about contacting represented parties by using an agent to view the restricted portion of a represented person’s social-media profile.
Advising Clients on Their Social-Media Presence and Posts
The NYSBA has prepared four guidelines relating to furnishing advice to clients about their social-media use:
- Guideline No. 4.A states that a lawyer may advise a client regarding what content may be maintained, may be made private, and may be removed from the client’s social-media account, but the guideline cautions that a party or nonparty may not delete information from a social-media profile that is subject to a duty to preserve. This guideline relates to an attorney’s duty to make sure that potentially relevant information is not destroyed when litigation may be reasonably anticipated.
- Guideline No. 4.B essentially provides that a lawyer cannot knowingly advise a client to post anything false or misleading on a social-media website or to the client’s social-media profile.
- Guideline No. 4.C indicates that if a lawyer learns through a client’s social-media postings that the client has made a false statement or taken a false position, the lawyer cannot use those false statements or assert those false positions in a lawsuit.
- Guideline No. 4.D states that a lawyer may review the restricted portion of a represented party’s social-media profile when provided to the lawyer by the client unless the lawyer (1) caused or assisted the client to obtain the information in an inappropriate manner; (2) convinced the represented party to act without first seeking advice of counsel; or, broadly and vaguely, (3) overreached in some other manner.
Investigating Potential Jurors and Jurors Through Social Media
The NYSBA has prepared five guidelines relating to a lawyer’s use of social media to glean information about potential jurors and jurors:
- Guideline No. 5.A provides that a lawyer may use public social-media accounts, profiles, and posts to learn about prospective and sitting jurors.
- Guideline No. 5.B provides that a lawyer may not contact prospective or sitting jurors through the jurors’ social-media websites, profiles, or posts, even if the contact is not intentional and merely an automatically generated message from the social-media network regarding the viewing of a social-media profile.
- Guideline No. 5.C states that a lawyer may not personally, or through agents, make misrepresentations or engage in deceit to gain access to the social-media profile, account, or posts of a prospective or sitting juror.
- Guideline No. 5.D provides that a lawyer may view or monitor the social-media profile or posts of any sitting juror, provided there is no contact with the juror, including through automatically generated messages from the social-media network regarding the viewing of a social-media profile.
- Guideline No. 5.E instructs that when a lawyer learns through social media that a juror may have engaged or did engage in misconduct, the lawyer must promptly bring that issue to the court’s attention.
Adam Reich is an associate with Paul Hastings LLP in Los Angeles, California.