Social Media has transformed the legal profession. Today’s lawyers routinely communicate, advertise, investigate and obtain information via the numerous social media platforms available at the click of a button. The rapid change in the way lawyers do business has created a new set of ethical challenges. In order to navigate this growing field of ethical issues, many states have issued guidelines for the use of social media in the legal profession. Last year, the New York State Bar Association’s Commercial and Federal Litigation Section issued its first set of Social Medial Ethics Guidelines. Just recently, those Guidelines were updated to address areas that require additional guidance including new sections on the retention of social media by lawyers, tracking of client social media, communications by lawyers with judges, and lawyers’ use of LinkedIn.
One of the most significant updates is the new guideline regarding social media competency. Similar to the Rule of Professional Conduct regarding basic competencies, a lawyer has a duty to understand the benefits, risks and ethical implications of using social medial including its use as a mode of communication, advertisement and research. “If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site.” Competence under this new guideline may mean understanding the often lengthy “terms of service” or whether any of the platform’s features raise ethical concerns.
Another new guideline recognizes the increased use of social media by judges and other court officers. The guideline instructs that lawyers shall not communicate with a judicial officer over social media if the lawyer intends to influence the judicial officer in the performance of his or her ethical duties. While it does not bar all communications with a judicial officer via social media, it points out the need to be cognizant of the appearance such communications may have and to ensure no ex parte or other prohibited communications occur.
Additional changes instruct attorneys to retain any communications with clients via social media just as if they were memorialized in formal correspondence. They also caution attorneys to monitor their LinkedIn pages at reasonable intervals to ensure that others are not endorsing them as specialists, and to confirm the accuracy of any endorsements or recommendations and correct misleading information. Additionally, the updated Guidelines warn attorneys that any social media communications or communications made on an attorney’s website or blog should not disclose any client confidences or confidential information relating to the legal representation of the client.
Part of the beauty of social media is the ease of access to different and widespread audiences at once. However, lawyers need to appreciate that because social media can so easily reach across multiple jurisdictions, they may not be bound by just one state’s ethical rules. As the Guidelines caution “lawyers should ensure compliance with the ethical requirements of each jurisdiction in which they practice, which may vary considerably.”