New York Bar Updates Social Media Ethics Guidelines for Lawyers

As we discussed here in 2014, the New York State Bar Association issued Social Media Ethics Guidelines last year to help lawyers comply with the rules of professional conduct when using media such as Twitter, Facebook, LinkedIn, and the like. On June 9, 2015, the association updated and revised those guidelines. See Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association (revised Jun. 9, 2015). Here are a few of the important revisions:

  • Guideline 1 on “social media competence” now provides that “[a] lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool, and a means to research and investigate matters.” A comment to the guideline asserts that a lawyer “cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media,” and needs “to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use.” This suggestion is consistent with the ABA’s 2012 amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, which provides that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” See ABA, Commission on Ethics 20/20 Resolution 105A (August 2012).1
  • New Guideline 7 provides that a lawyer should not communicate with a judge on social media if “the lawyer intends to influence the judicial officer in the performance of his or her official duties.”
  • Guideline 2 notes that mixed use (or “hybrid”) personal/business social media accounts may be subject to disciplinary rules regulating advertising and solicitation. The guideline acknowledges that the authorities are split on the issue, but cautions that it “would be prudent . . . to assume” that the disciplinary rules do apply to such accounts—particularly if the “primary purpose” of the account is to generate legal business.
  • Finally, the guidelines advise that a lawyer should retain copies of social-media communications “just as she would if the communications were memorialized on paper.”

 

  1.  Since 2012, at least 14 states have officially adopted Comment 8 as part of their rules of professional conduct. On March 26, 2015, Massachusetts became the most recent state to join the list. See Order of the Supreme Judicial Court, Commonwealth of Massachusetts (Mar. 26, 2015).