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By Samson Habte
June 17 — The breakneck pace at which courts and ethics committees have issued opinions dealing with lawyers' Internet use prompted the New York State Bar Association to revise guidelines it released last year to “assist lawyers in understanding the ethical challenges of social media.”
(For a description of the initial guidelines, see 30 Law. Man. Prof. Conduct 215.)
The updated report, released June 9 by the Social Media Committee of the state bar's Commercial and Federal Litigation Section, includes new guidance on a host of issues that have drawn increased attention from courts and ethics panels in recent years.
• a “hybrid” social media account or blog (e.g., a Twitter feed or blog used for both business and personal purposes) may be subject to ethics rules governing advertising and solicitation if “used for the primary purpose” of getting business for a lawyer or firm;
• a lawyer who uses social media to communicate with clients about legal representation “should retain records of those communications, just as she would if the communications were memorialized on paper”;
• “passive review” of a juror's social media profile may violate the rule forbidding ex parte contact with jurors if the site automatically notifies an account holder when her page is viewed;
• New York's rule on maintaining the impartiality of a tribunal imposes stricter notification duties than other jurisdictions when “a lawyer learns of ‘juror misconduct' due to social media research.” (See box.)
Ignatius A. Grande, a co-chair of the committee and senior discovery attorney at Hughes Hubbard & Reed LLP in New York, told Bloomberg BNA the changes were needed because the ethics issues surrounding attorneys' Internet use are “constantly changing.”
That assertion was bolstered by United States v. Parse, 2015 BL 179640, No. 13-1388 (2d Cir. June 8, 2015), a decision—handed down one day before the committee issued the revised guidelines—that addressed one topic the committee chose to revisit: the scope of a lawyer's duty to notify courts about juror misconduct. (See box.)
The original guidelines, issued in March 2014, addressed five issues: (1) advertising; (2) furnishing legal advice through social media; (3) reviewing and using social media evidence; (4) communicating with clients; and (5) researching jurors and reporting juror misconduct.
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.
The comment to Guideline No. 1 states that lawyers “cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media,” and that they “need to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use.”
A second new provision, Guideline No. 7, instructs lawyers not to communicate with judges over social media if “the lawyer intends to influence the judicial officer in the performance of his or her official duties.”
The comment notes that there are few New York ethics opinions addressing communication with judges via social media and that outside authority on the issue is not consistent.
“However,” it adds, “lawyers should not be surprised that any such communication is fraught with peril as the ‘intent' of such communication by a lawyer will be judged under a subjective standard, including whether retweeting a judge’s own tweets would be improper.”
The committee also made revisions to three of the five existing guidelines. Of those, the section on attorney advertising—now renumbered as Guideline No. 2—underwent the heaviest renovation.
The changes include a black-letter reference and additional commentary on the extent to which a lawyer's communications on “hybrid” social media accounts “used for business and personal purposes” are subject to ethics rules governing advertising and solicitation.
Committee member Scott L. Malouf, a lawyer and social media consultant in Rochester, N.Y., told Bloomberg BNA the guidance on hybrid accounts was needed because younger lawyers, in particular, are increasingly likely to use personal social media accounts for business purposes. Malouf said young lawyers tell him social media discussions often yield new clients.
The comment to Guideline No. 2.A states that although authority is divided on whether advertising rules apply to communications on hybrid accounts, it “would be prudent … to assume that they do.”
If the rules do apply, lawyers must comply with a host of record-keeping and disclaimer requirements.
For example, New York Rule of Professional Conduct 7.1(e) provides that the words “Attorney Advertising” must appear on communications lawyers make for the primary purpose of securing clients, and Rule 7.1(d) dictates that statements or testimonials about the quality of a lawyer's services be accompanied by the disclaimer “Prior results do not guarantee a similar outcome.”
The comment to Guideline No. 2.A acknowledges that it “may be impractical or not possible” to use these disclaimers on a service such as Twitter, where users are limited to 140-character messages. But such “structural limitation does not provide a justification for not complying” with the rules, the drafters added.
“Thus, consideration should be given to only posting tweets that would not be categorized as attorney advertising,” the comment states.
Alternatively, lawyers could look to Malouf's Twitter profile, which includes a biographical introduction that demonstrates how abbreviations and economical word usage can help a lawyer comply with advertising and solicitation rules on that platform.
His profile includes this disclaimer: “Attorney helping attnys & entities use social to win cases, stay compliant & do biz. This is NOT legal advice, confidential or an endorsement. Attny Advertising.”
Other revisions address splits in authority on social media-related ethics questions, particularly where bar authorities in New York diverge from views endorsed by the ABA and ethics committees in other states.
The introduction to the guidelines states that lawyers “need to appreciate that social media communications that reach across multiple jurisdictions may implicate other states' ethics rules,” and that outside opinions are also instructive when “a New York ethics opinion has not addressed a certain situation.”
But the guidelines do make it clear that, on some issues, New York authorities fundamentally disagree with the ABA and are unlikely to reverse course.
One of those disagreements involves the ban on communicating with jurors outside the courtroom—and, more specifically, whether a lawyer violates that rule by viewing a juror's profile on a social media site that alerts account-holders to the identities of persons who land on their pages.
In 2014, the ABA determined that such “passive review” does not amount to contact or communication with jurors. See ABA Formal Ethics Op. 466, 30 Law. Man. Prof. Conduct 292 (2014).
Shortly thereafter, Grande and two other committee members—former U.S. Magistrate Judge Ronald J. Hedges and Mark A. Berman of Ganfer & Shore, New York—took issue with that conclusion in a jointly-authored letter.
Quoting Guideline No. 6.B, the co-authors said they believe that “[a] lawyer may view the social media … 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.”
That is the better rule, the authors argued, because a visit of this sort might “infect the juror's thought processes” and the proceeding. The article goes on to cite a 2013 incident in which a judge considered declaring a mistrial after a juror complained “that an attorney had cyberstalked him on LinkedIn.”
In his interview with Bloomberg BNA, Grande said the addition of a new guideline on competence further solidifies the argument that a prohibited communication takes place if an automatic, subscriber-notification procedure alerts a juror to a lawyer's visit.
“Part of this ties in to the duty of competence,” Grande said. “It's easy enough to log out or to make oneself anonymous,” he added, and, he said, a lawyer with a basic level of technological competence should grasp that.
To contact the reporter on this story: Samson Habte in Washington at email@example.com
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Full text of the revised guidelines at http://www.nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_Ethics_Guidelines.html.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
Some revisions in the New York state bar's updated guidelines on lawyers' social media use focus on questions that divide ethics committees in New York and panels in other jurisdictions.
The changes to Guideline No. 6.E (“Juror Misconduct”) are an example. The committee did not alter the black letter of that guideline, which states that a lawyer who “learns of possible juror misconduct, whether as a result of reviewing a sitting juror’s social media profile or posts, or otherwise, … must promptly bring it to the court’s attention.”
It did, however, modify a comment to advise that “the extent of the duty to report juror misconduct varies among jurisdictions.”
The comment notes that although New York authorities interpret that obligation as applying broadly to “potential juror misconduct,” the ABA has opined that it applies “only to criminal or fraudulent conduct.” See ABA Formal Ethics Op. 466, 30 Law. Man. Prof. Conduct 292 (2014).
One day before the state bar committee released its revisions, the U.S. Court of Appeals for the Second Circuit issued United States v. Parse, 2015 BL 179640, No. 13-1388 (2d Cir. June 8, 2015), a case that raised the question of whether a defense attorney's failure to immediately notify a court of juror misconduct waives a criminal defendant's right to an impartial jury.
The Parse ruling granted a new trial to a financial broker who was convicted in what authorities called “the largest tax fraud prosecution in U.S. history.” The ruling was based on what a trial judge described as “breathtaking” lies told by juror Catherine Conrad, who made “a conscious decision” to hide “her true identity, which would have prevented her from serving on the jury.”
Defense counsel conducted Google searches prior to voir dire and discovered that Conrad shared the name of a lawyer who was suspended from practice and had a checkered criminal history. “But because Conrad stated during voir dire that her highest level of education was a B.A. in English Literature, [defense counsel] concluded that Conrad could not be the suspended lawyer,” the trial judge said.
Suspicions were revived during closing arguments, when Conrad submitted a question to the judge that used legal jargon. But the defense team did not bring their concerns to the court at the time.
Instead, they moved for a new trial after an assistant U.S. attorney disclosed a letter, sent one day after the verdict, in which Conrad praised the prosecution team for its efforts and stated that she “held out for two days on the conspiracy charge” because she “wanted to convict 100%.”
The trial judge denied the motion after concluding that the defense team remained silent for strategic reasons: to preserve a challenge in the event their client were convicted, and to ignore Conrad's misconduct if he were acquitted.
On appeal, the defendant and groups representing criminal defense lawyers urged the Second Circuit to “adopt a general rule that lawyers need not bring concerns about possible juror misconduct … to the attention of the trial court unless counsel actually know that such misconduct has occurred.”
But the Second Circuit said it did not believe “such a sweeping and absolute rule is appropriate.” Instead, it found that reversal was warranted because refusing to grant a new trial under these circumstances “would seriously affect the fairness, integrity, and public reputation of judicial proceedings.”
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