The New York State Bar Association has issued Social Media Ethics Guidelines to help lawyers comply with the rules of professional conduct when using media such as Twitter, Facebook, LinkedIn and the like. The problem: “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.” Here are quotes of some of the more helpful guidelines:
- 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.
- 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.
- 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 is not responsible for information that another person, who is not an agent of the lawyer, posts on a lawyer’s website, unless the lawyer prompts such person to post the information or otherwise uses such person to circumvent the ethics rules concerning advertising. 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. If a person who is not an agent of the lawyer unilaterally posts content to the lawyer’s social media website or profile that does not comply with ethics rules, the lawyer must remove such content if such removal is within the lawyer’s control and, if not within the lawyer’s control, she must ask that person to remove it.
- 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.
- 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.
- 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. If the person asks for additional information from the lawyer in response to the request that seeks permission to view her social media profile, the lawyer must accurately provide the information requested by the person or withdraw her request.
- 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. As it relates to viewing a person’s social media account, a lawyer shall not order or direct an agent to engage in specific conduct, or with knowledge of the specific conduct by such person, ratify it, where such conduct if engaged in by the lawyer would violate any ethics rules.
- 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.
- A lawyer may research a prospective or sitting juror’s public social media website, account, profile, and posts. 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.
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