Guidelines for legal ethics were recently developed by the Commercial and Federal Litigation Section of the New York State Bar Association. While they are not requirements, they are recommendations for lawyers to apply when using social media as part of their practice.
According to the guidelines, an attorney is incapable of being competent without a working knowledge of the advantages and risks that are affiliated with using social media. Attorneys are urged to retain copies of client communications on social media, and should take responsibility for changing any incorrect information that is posted by others on the lawyers’ online biographies. In addition, the guidelines give attorneys the right to perform online research on public segments of social media profiles.
It is imperative that attorneys are aware of the benefits, disadvantages, and risks of using social media. Otherwise, they may find themselves embroiled in predicaments with their clients and disciplinary committees. Furthermore, lawyers must realize that social media communications that extend over several jurisdictions could involve ethics rules of other states. Attorneys must comply with the ethical requirements of each state in which they practice, and recognize that there may be significant differences between the rules of each state.
Pitfalls of Promoting and Practicing Online
Social media has become an effective means by which attorneys can conduct an investigation and acquire information regarding a witness, party, or juror without using formal discovery. However, prior to reading someone’s social media account, posts, or profile, attorneys must be cognizant of the fact that ethics rules and opinions determine whether an attorney can view such social media, and if so, the ways in which they can read such media.
When using social media, communications are frequently directed at not only the intended recipient, but to a number of people. For this reason, attorneys must ensure that they are complying with attorney advertising rules as well as other ethical regulations. Another possibility is that attorneys may inadvertently reveal privileged or confidential information to individuals other than the intended recipient. Attorneys must also be aware of the potential for a social media communication to establish an attorney-client relationship that was unintended.
An attorney’s social media profile that is used solely for personal purposes need not comply with rules concerning attorney advertising and solicitation. However, an attorney’s social media profile, blog, or post that is used to retain clients must be in compliance with such rules. When advertising their areas of practice using social media, attorneys should not use the term, “specialist,” unless the attorney has been certified by the proper accrediting organization.
Attorneys must also make certain that any third-party legal endorsements that are posted to their social media profile are accurate. In order to ensure such accuracy, the attorney must monitor the posts and make any needed corrections to posts made by clients or other third parties. While attorneys may view the social media profiles of jurors or potential jurors, they are prohibited from connecting with them. Nor should they engage in any communication with jurors on social media.
These are only some of the new guidelines that are recommended for attorneys who use social media. Lawyers are encouraged to adhere to the guidelines so as to avoid any potential conflicts that may arise with clients or disciplinary committees.
Authored by Roxanne Minott, LegalMatch Legal Writer and Attorney at Law
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