The New York State Bar Association recently revised its Social Media Ethical Guidelines, which, in a nutshell, include:
– A lawyer has a duty to understand the benefits, risks, and ethical implications associated with social media, including its use for communication, advertising, research and investigation.
– A lawyer’s social media profiles and postings are governed by the Rules of Professional Conduct – including those rules prohibiting a lawyer from making “false or misleading” communications.
– A lawyer cannot falsely claim certification as a specialist on social media platforms if that is not the case.
– A lawyer is responsible for all content that the lawyer posts on the lawyer’s own social media profile. However, a lawyer may also have a duty to periodically monitor the lawyer’s sites for comments, endorsements, and recommendations to ensure that such third-party posts do not violate ethics rules. “If a person who is not an agent of the lawyer unilaterally posts content to the lawyer’s social media, profile or blog that violates the ethics rules, the lawyer must remove or hide such content if such removal is within the lawyer’s control and, if not within the lawyer’s control, he or she may wish to ask that person to remove it.”
– A lawyer’s posts on issues and legal developments should not be inconsistent with those advanced on behalf of his or her clients and the clients of his or her firm.
– A lawyer must avoid inadvertently undertaking to represent a person by providing legal advice on social media. Instead, the lawyer should only provide “general answers to legal questions”.
– If a lawyer uses social media to communicate with a client, the lawyer should retain records of such communications.
– A lawyer may view public information on any person’s social media – including a juror or potential juror.
– A lawyer may send a truthful “friend” request to an unrepresented person. However, the lawyer may not send such a request to a represented person without the consent of that person’s lawyer. The lawyer also may not do so through an agent, such as a paralegal or investigator.
– A lawyer may provide advice to a client as to “taking down” information posted on the client’s social media site. “However, the lawyer must be cognizant of preservation obligations applicable to the client and/or matter, such as a statute, rule, regulation, or common law duty relating to the preservation of information, including legal hold obligations. Unless an appropriate record of the social media content is preserved, a party or nonparty may not delete information from a social media account that is subject to a duty to preserve.”
– A lawyer may not advise a client to post false information on social media.
– “A lawyer may review a represented person’s non-public social media information provided to the lawyer by her client, as long as the lawyer did not cause or assist the client to: (i) inappropriately obtain non-public information from the represented person; (ii) invite the represented person to take action without the advice of his or her lawyer; or (iii) otherwise overreach with respect to the represented person.”
– If a lawyer learns of juror misconduct while reviewing social media, (or otherwise), the lawyer must promptly bring it to the court’s attention.
– “A lawyer 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 official duties.” This would not, however, prevent a lawyer from sending a “friend request” to a judge.
See Social Media Ethics Guidelines, New York State Bar Association (May 31, 2019).