By Joan C. Rogers
March 19 --The New York State Bar Association's litigation section March 18 issued a detailed set of guidelines explaining what is ethically permitted and forbidden for lawyers using social media networks in their practice.
The “Social Media Ethics Guidelines” provide 18 standards in rule-and-comment format in five broad areas. For example:
• Gathering evidence. Lawyers may try to locate impeachment material by looking at the public portion of an individual's social media accounts--even if that person is represented by counsel in the matter--but the lawyer cannot review any restricted portion of a represented person's social media site without an express authorization from the person's counsel.
• Advising clients about their social media accounts. Attorneys may advise clients to “take down” social media information or shift it to private areas, so long as the change would not violate any decisions, statutes or rules on spoliation of evidence. However, material subject to a duty to preserve may not be deleted unless an “appropriate record” of the information is maintained.
• Reviewing jurors' profiles and posts. Although a lawyer may view a juror's public social media information, there must be no communication with the juror, even if the contact is automatically generated by the social media network.
• Advertising. Lawyers' social media profiles must not list their practice areas under “specialist” headings, unless they are properly certified in those areas.
• Posting advice. A lawyer may give general answers to legal questions others ask on social media, but should avoid furnishing specific legal advice.
According to the introduction, the guidelines “are merely that, and are not 'best practices,'” and are intended “to assist lawyers in understanding the ethical challenges of social media.”
The Social Media Committee of the bar association's Commercial and Federal Litigation Section developed the guidelines. They are premised on the New York Rules of Professional Conduct, along with ethics opinions from New York and other states.
“Overall these guidelines are a very helpful tool for lawyers, especially coming from such a respected bar association,” Michael P. Downey said in an interview with Bloomberg BNA.
“This is the kind of resource lawyers need to implement the new comment to Rule 1.1 on competency in understanding relevant technologies,” said Downey, a partner in Armstrong Teasdale LLP, St. Louis.
The introduction to the guidelines emphasizes language the ABA added in August 2012 to the comment accompanying Model Rule 1.1, under which lawyers must keep abreast of “the benefits and risks associated with relevant technology.”
Lawyers must become conversant with the particulars of each social media network which they and their clients use, the introduction states. “This is a serious challenge that lawyers must appreciate and cannot take lightly,” it declares.
Citing New York State Ethics Op. 843, 26 Law. Man. Prof. Conduct 607 (2010), Guideline 3.A indicates that lawyers may look at the public portion of a person's social media accounts, even if the individual has counsel in the matter, and even for the purpose of uncovering impeachment material.
But lawyers need to be aware, the guideline says, that some networks automatically notify members about who looks at their profile or posts. This notification may result in unintentional communication with a represented party, the guideline's comment states.
Downey told Bloomberg BNA he fears this language may create false concern by hinting that it could be unethical for a lawyer to view a represented party's social media accounts if the person ends up finding out about it. Although lawyers should be aware their visit may be noticed, the contact almost certainly would not violate Rule 4.2 (direct contact with represented person) because it is not a communication about the subject matter of the representation, he said.
Guideline 3.C states that the restricted portion of a represented party's social media site may not be reviewed without an express authorization from that person. The comment advises lawyers to use caution before deciding to view a restricted social media profile in a network to which the lawyer has rightful access, such as the network of a professional group.
As the relevant ethics rules on these questions, the guidelines cite Rule 4.2 as well as those dealing with truthfulness in statements to others (Rule 4.1), communicating with unrepresented persons (Rule 4.3) and responsibility for conduct of nonlawyers whom the lawyer supervises (Rule 5.3).
Lawyers may ask unrepresented parties for permission to see the private portion of their websites or profiles, but in doing so they must use their full name, not pose as someone else, and they must be honest in answering any queries, according to Guideline 3.B. A lawyer may join a social media network to obtain information concerning a witness, the comment states.
Relying on New York City Ethics Op. 2010-2, 26 Law. Man. Prof. Conduct 607 (2010), the comment says that New York does not consider it deceptive for a lawyer using her real name and profile to send a “friend” request to obtain information from an unrepresented person's social media account.
But several other states require the lawyer to disclose her role or purpose in making this contact, the comment adds, citing New Hampshire Ethics Op. 2012-13/5, 29 Law. Man. Prof. Conduct 437 (2012), San Diego County Ethics Op. 2011-2, 27 Law. Man. Prof. Conduct 438 (2011), and Philadelphia Ethics Op. 2009-2 (2009).
Oregon lawyers have been advised to clarify their identity if the person being contacted asks for additional information or appears to misunderstand the lawyer's role, the comment says, citing Oregon Ethics Op. 2013-189, 29 Law. Man. Prof. Conduct 189 (2013).
Guideline 3.D says that a lawyer may not deploy investigators, assistants or other agents to look at social media accounts that would be off limits to the lawyer herself. This prohibition could also apply to the lawyer's client, the comment says.
The document suggests that if a client provides his counsel with the restricted portion of a represented party's website, the lawyer may review it provided she didn't instigate or aid the client in overreaching with respect to the represented party (Guideline 4.D, applying Rule 4.2).
Citing New York City Ethics Op. 2002-3, 18 Law. Man. Prof. Conduct 553 (2002), the comment explains that New York allows one party to communicate directly with another party but prohibits lawyers from exploiting that connection as a means for the lawyer herself to communicate directly with the nonclient. Therefore, the comment says, lawyers must use caution when talking with a client about “friending” a represented person to obtain private information from the person's social media site.
The comment also discusses New Hampshire Ethics Op. 2012-13/5, 29 Law. Man. Prof. Conduct 437 (2012), which advised that the propriety of using information a client acquired from a restricted social media account depends on the extent to which the lawyer directs the client, and ABA Formal Ethics Op. 11-461, 27 Law. Man. Prof. Conduct 605 (2011), which advised that the Model Rules allows lawyers to help their clients prepare for talks with a represented opponent.
Drawing on New York County Ethics Op. 745, 29 Law. Man. Prof. Conduct 438 (2013), the guidelines say lawyers may advise clients to “take down” social media information or shift it to private areas, so long as the change would not violate any decisions, statutes or rules on spoliation of evidence. Material that is subject to a duty to preserve may not be deleted unless an “appropriate record” of the information is maintained (Guideline 4.A).
Downey expressed concern that the phrase “appropriate record” may give lawyers false confidence about preserving material removed from a client's social media pages. With the way spoliation is being treated in cases involving electronic evidence, the question of preserving social media material is not easy, he said.
Opposing counsel may want much more than simple PDFs of the material itself, such as metadata about when the material was created or deleted, and who visited the site, Downey said. “Lawyers facing this situation need to realize that acting on their personal subjective belief about what's an 'appropriate record' could be a big mistake,” he said.
Guideline 4.B says that lawyers may suggest additional content for a client's social media profiles and posts, but must not help or instruct the client to publish false or misleading information relevant to a claim.
A lawyer may not proffer or use statements in litigation after learning from a client's social media postings that the statements are false, according to Guideline 4.C.
On these issues relating to clients' social media information, the guidelines invoke the rules on frivolous claims (Rule 3.1), candor toward tribunals (Rule 3.3) and fairness to opposing party and counsel (Rule 3.4), along with the standards concerning misconduct (Rule 8.4) and contacts with represented and unrepresented persons.
In Guideline 5.A the litigation section said that lawyers may research public social media profiles and posts of a prospective juror or sitting juror. The duty of competence may even require that investigation, the comment says, citing New York City Formal Ethics Op. 2012-2, 28 Law. Man. Prof. Conduct 381 (2012).
While a lawyer may view a juror's social media information, there must be no communication with the juror, even if the contact is automatically generated by the social media network, according to Guideline 5.B. A footnote cites New York City Op. 2012-2 as well as Oregon Ethics Op. 2013-189, 29 Law. Man. Prof. Conduct 189 (2013).
New York bar groups' ethics opinions have stated that even inadvertent contact caused by an automatic notice may be considered a technical ethics violation, the comment says, citing New York City Op. 2012-2 and New York County Ethics Op. 743, 27 Law. Man. Prof. Conduct 473 (2011). The comment to Guideline 3.A makes the same point.
During trial, a lawyer may view or monitor jurors' social media profiles and posts, provided there is no contact with the juror, automatic or otherwise, the section said in Guideline 5.D. Even unintended contact could result in a mistrial, the comment notes.
In Guideline 5.C the section said lawyers must not use deceit or misrepresentation to gain access to a juror's social media information, nor direct others to do so.
Guideline 5.E indicates that a lawyer who learns of juror misconduct through social media research or otherwise must promptly notify the court.
The relevant rules on using social media to research jurors are Rule 3.5 (maintaining jurors' impartiality) and the rules on misconduct and communications with represented and unrepresented persons, according to the guidelines.
A lawyer's social media profiles and posts are not subject to advertising rules if used solely for contact with friends and family, but advertising rules apply when social media is used primarily for business purposes, according to Guideline 1.A.
Downey said this statement, while accurate, leaves a huge gray area for lawyers trying to stay within ethical boundaries. He suggested that to stay on the safe side, a lawyer should treat her social media material as advertising whenever it names her firm or aims to create buzz about the lawyer's practice or build up the lawyer's legal reputation. Lawyers who want to have a social media page that isn't advertising should avoid using their law firm e-mail addresses and commenting about legal matters, he recommended.
The comment to Guideline 1.A states that in satisfying Twitter's 140-character limit, lawyers may use common abbreviations for information required in attorney advertising.
Lawyers' social media profiles must not list their practice areas under “specialist” headings, unless they are certified in those areas, according to Guideline 1.B. Lawyers may consider including information about their experience under some other heading, the comment suggests.
Guideline 1.C indicates that lawyers are responsible for all content they post on their social media profiles.
But they aren't accountable for information posted by anyone else, unless they prompted the posting or used that person to circumvent advertising rules. The “safe harbor” in that guideline will be helpful, Downey said.
Guideline 1.C also states that lawyers must monitor their social media profiles and blogs to ensure compliance with ethics rules. If someone posts noncompliant content on a lawyer's social media sites, the lawyer must delete the material if removal is within the lawyer's control. If not, the lawyer must ask the person who made the post to remove it.
Downey said he believes the obligation to remove noncompliant social media material applies only if the lawyer knows or has reason to know the information is improper.
The comments to the guidelines on advertising cite a number of ethics opinions, including California Formal Ethics Op. 2012-186, 29 Law. Man. Prof. Conduct 40 (2012), New York State Ethics Op. 972, 29 Law. Man. Prof. Conduct 515 (2013) and an online Florida Bar staff advisory opinion.
The comments also mention an online publication from the Virginia State Bar, “Quick Facts About Legal Ethics and Social Networking.”
In Guideline 2.A the section advises that a lawyer may give general answers to legal questions asked on social media, but cannot furnish specific legal advice because the exchange could create an attorney-client relationship and may disclose privileged attorney-client information.
Lawyers may not solicit business from the public through real-time or interactive communications such as instant messaging and chat room discussions, Guideline 2.B states. If someone talking with a lawyer in such a setting broaches the possibility of hiring the lawyer, she may respond but must do so privately. E-mail and websites are not considered real-time or interactive communications for the purpose of ethics restrictions on solicitation, according to the guideline.
The comment accompanying that guideline cites New York State Ethics Op. 899 (2011) and ethics opinions from Illinois, Michigan, Utah, Virginia and West Virginia, along with a Philadelphia opinion that reached a different conclusion about chat rooms.
Downey told Bloomberg BNA he hopes bar associations' ethics committees will gain a better understanding that many electronic communications in use today do not implicate the concerns that underlie the rule against in-person solicitation of potential clients. Most people feel free to ignore texts, Internet chat room posts and similar typed electronic contacts even if ethics committees assert that the communications occur in “real time,” he said.
While acknowledging that the guideline authors may have felt constrained by opinions that deal with older technologies (such as chat rooms), Downey said he believes it would have been preferable if the authors had instead indicated that the prohibition on real-time and in-person solicitations should apply only to technologies--such as telephones and Skype--that actually allow people to see or speak to each other in real time, and not to technologies that merely provide for the exchange of typed messages.
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Full text of the guidelines at http://www.nysba.org/workarea/DownloadAsset.aspx?id=47547.
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