Technology and legal ethics expert, and Law Firm Suites’ Financial District Client, Nathan Crystal summarizes the NYSBA guidelines on the ethical use of social media by lawyers.
For many clients, email has become a thing of the past, with clients preferring to communicate through social media channels liked Facebook or LinkedIn. Enterprising attorneys have realized that there is value in marketing their services through these channels, and it seems that bar regulators have struggled to keep pace with the technology.
It seems that hardly a day goes by without another bar opinion or court decision dealing with ethical use of social media by lawyers..
One recent post is particularly noteworthy to me because it seeks to digest a large number of authorities and to provide guidelines to lawyers in the use of social media. I am referring to the Social Media Ethics Guidelines of the New York State Bar Association (Commercial and Federal Litigation Section) (March 18, 2014).
The Guidelines are divided into five sections, summarized below:
1. Guidelines Regarding Social Media and Attorney Advertising
Guideline 1C provides that lawyers are responsible for monitoring their social media profiles and blogs for compliance with ethical requirements. If a third person posts ethically improper conduct on the lawyer’s site, the lawyer must remove it or ask the poster to remove the offending material.
2. Restrictions on Providing Legal Advice through Social Media
Guideline 2C appears to prohibit lawyers from giving specific legal advice through social media because such advice may create an attorney-client relationship or disclose confidential information. Apparently, the Guidelines envision a social media contact leading to personal or private communication between the lawyer and the prospective or actual client.
3. Review and Use of Evidence Through Social Media
With regard to evidence gathering, the Guidelines allow lawyers to review the public profile or posts of a person, even if that person is represented by counsel. However, the commentary goes on to note that if the represented person receives an automated notification of the lawyer’s review, the lawyer has committed an ethical violation by “communicating” with the person. Guidelines 3°.
The ABA recently reached a difference decision on this issue in Formal Opinion 466. With regard to unrepresented people, the Guidelines allow lawyers to request permission to review restricted portions of their sites, but lawyers must make full disclosure of their identity and may not engage in deceit. Guideline 3B. Lawyers may not directly or through agents attempt to obtain access to restricted social medial sites of represented persons. Guidelines 3C and 3D.
4. Communicating with Clients Ethically
Lawyers have general ethical obligations to competently represent their clients, ABA Model Rule 1.1, along with a duty to communicate to clients material information. Rule 1.4. The Guidelines provide that lawyers may counsel clients about removing material from social media sites so long as the advice does not violate statutory or common law.
The Guidelines seem to authorize lawyers to advise clients to remove material from their social medial sites even with litigation is foreseeable so long as copies of the removed material are preserved. Guidelines 4A. Query whether a lawyer could counsel a client to remove material for the site or move material from public to private viewing after litigation has been filed and when a litigation hold has been issued?
The Guidelines prohibit lawyers from assisting clients in presenting through social medial false statements or in proffering such statement on the lawyer’s sites. Guidelines 4B and 4C. Lawyers may review social material obtained by a client from a represented person, for example, when one spouse obtains information from the private portion of the other spouse’s social media sites, subject to some restrictions. Guideline 4D.
5. Researching Social Media Profiles and Posts of Jurors and Reporting Juror Misconduct
Lawyers may conduct social medial research into prospective or sitting jurors. Guideline 5A. A lawyer may view the social media sites of jurors provided there is no communication, whether direct or automatic with the juror and provided the lawyer does not engage in deceit. Guidelines 5B and 5C.
ABA Formal Opinion 466 reached a different result. If a lawyer learns of juror misconduct by review of social media or otherwise, the lawyer must report the matter to the court. Guideline 5E. For an analysis of ABA Opinion 466 and the issue of disclosure of juror misconduct, see Nathan M. Crystal, Using Social Media to Investigate Jurors, S.C. Law. 10 (July 2014).
Nathan Crystal is a scholar and a practicing attorney with the firm Crystal & Giannoni-Crystal LLC. He is also the founder of Technethics (www.technethics.com), a Web-based information source, community, and meeting point that assists lawyers and law firms in complying with their ethical obligations on technology. Mr. Crystal has advised individuals and entities, including major law firms, on matters of contract law and professional ethics and has lectured throughout the world on these subjects. He frequently serves as expert witness or consultant in multimillion dollar cases. Mr. Crystal maintains his firm’s New York City office in Law Firm Suites’ Financial District location.
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