On May 11, 2017, the Commercial and Federal Litigation Section of the New York State Bar Association issued its third iteration of Social Media Ethics Guidelines. As the authors of the Guidelines aptly recognize: “As use of social media by lawyers and clients continues to grow and as social media networks proliferate and become more sophisticated, so too do the ethics issues facing lawyers.” This recent update adds principles regarding professional competence and attorney use of social media, and addresses ethical considerations regarding maintaining client confidences, handling potential conflicts of interests related to social media, following clients’ social media, and communicating with judges via social media.
Issued in 2014 and updated in June 2015, the Guidelines aim to provide “guiding principles” as opposed to “best practices” for the modern lawyer’s evolving use of social media. The authors acknowledge the guidelines’ inherent inability to define universal principles in the face of varying ethics codes, which “may differ due to different social mores, the priorities of different demographic populations, and the historical approaches to ethics rules and opinions in different localities.” The Guidelines are based upon the New York Rules of Professional Conduct and New York bar associates’ interpretation of those rules. The Guidelines do, however, cite ethics opinions where there is a difference of opinion or New York has not addressed a particular situation.
Overall, there are seven social media guidelines, with sub-parts, addressing the following categories:
- Attorney competence;
- Attorney advertising;
- Furnishing of legal advice through social media;
- Review and use of evidence from social media;
- Communicating with clients;
- Researching jurors and reporting juror misconduct; and
- Using social media to communicate with a judicial officer.
The Guidelines include an Appendix that explains and defines various social media platforms and common terminology. For example, common platforms like Facebook, Instagram, and LinkedIn are defined, but others like Periscope, Reddit, Tumblr, and Venmo are included as well. The Appendix defines social networking terminologies such as “1st Degree,” “2nd Degree,” and “3rd Degree” Connections on LinkedIn, or what it means “to follow” a social media user, or to “Direct Message” a user on Twitter.
The first guideline regarding social media competence is arguably the most important: “A lawyer has a duty to understand the benefits, risks and ethical implications associated with social media, including its use for communication, advertising and research and investigation.” The Guideline acknowledges that, at the time it was published, 27 states include a duty of technical competence in their ethical codes – including New York, Pennsylvania, and Delaware. The codification of this duty is consistent with the American Bar Association’s amendment to the Model Rule regarding competent representation. New Jersey has not yet amended its Rules of Professional Competence or otherwise provided commentary to include technical competence within attorney competence, yet practitioners would be wise to “follow” the ABA and a majority of states and remain abreast of the “benefits, risks and ethical implications associated with social media,” as set forth in Guideline No. 1.