Hardly a day goes by without another bar opinion or court decision dealing with ethical issues in the use of technology, particularly social media. Lawyers need help in assimilating and digesting this deluge of information. Of course, that is why we created www.technethics.com, where we strive to post major pronouncements dealing with ethics and technology.
One recent post is particularly noteworthy to me because it deals with a document that 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) (Updated at June 9, 2015).
The Guidelines are divided into five sections:
- Attorney Advertising,
- Furnishing Legal Advice Through Social Media,
- Review and Use of Evidence Through Social Media,
- Ethically Communicating with Clients,
- Researching Social Media Profiles and Posts of Jurors and Reporting Juror Misconduct.
Each of the sections has specific guidelines with commentary and citations to relevant authorities, both in New York and other jurisdictions. Several of the guidelines were particularly interesting to me.
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 website, the lawyer must remove it or ask the poster to remove the offending material.
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.
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. See also my article Using Social Media to Investigate Jurors. With regard to unrepresented people, the Guidelines allow lawyers to request permission to review restricted portions of their websites, 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 media websites of represented persons. Guidelines 3C and 3D.
Lawyers have a general ethical obligation to competently represent their clients (ABA Model Rule 1.1) along with a duty to communicate to clients material information. ABA Model Rule 1.4. The Guidelines provide that lawyers may counsel clients about removing material from their social media websites 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 when 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 from websites 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 statements on the lawyer’s websites. 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.
Lawyers may conduct social media 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. As said, 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) (details of the publication here). A podcast on Using Media to investigate Jurors here.
Full text of the Guidelines here.