The New York State Bar Association recently put out guidelines to assist lawyers navigate the social media landscape. While the guidelines aren’t binding outside of New York (and as “guidelines” they’re not really binding in New York for that matter) they do provide some worthwhile suggestions for any lawyers crazy enough to, I don’t know, maintain a blog.
The table of contents for the Guidelines provide an overview of the risks that lawyers face when they use social media. There are five primary areas – advertising, furnishing legal advice, reviewing and using evidence gathered from social media, communicating with clients and non-clients via social media and using social media to research jurors or prospective jurors.
For purposes of advertising, the New York guidelines draw a distinction between a social media profile that’s used strictly for personal use and one that’s used for business. The former isn’t subject to rules about advertising and solicitation, the latter is. Your best bet may be to keep a pretty rigid line here just to be safe. And under the New York guidelines, better be careful about using the term “specialist’ in a profile. Most states have specific rules for when lawyers are in fact “specialists.” If you don’t qualify as one, better not use that term in a profile. And the guidelines say you may have a duty to remove posts other people post about you. So even if a third party unilaterally refers to you as a specialist, you may need to ask them to remove it.
On the subject of providing legal advice, it is okay under the New York guidelines to speak generally about a legal topic and even provide general answers to general legal questions. But be careful if that advice gets too specific, or too personal. And the guidelines frown on “real time” solicitation of business like via instant messaging or even participation in a chat room.
Lawyers are allowed to conduct research by viewing publicly available portions of anyone’s social media profile. The Guidelines note, though that the person who is the subject of the research may see who was doing the research. Be careful if that discloses a confidential relationship. And don’t sneak into protected portions of a profile by deception or by encouraging someone with access to check it out for you. If you actually use social media to make contact with another person, it matters if they are represented by counsel. If not, you need to disclose your actual identity. If the person is represented you need to get express consent before you can contact them.
A lawyer can counsel a client to remove content from a site so long as doing so does not constitute spoliation of evidence. Once a duty to preserve kicks in, the content can’t be removed. You can also advise a client to post new material as long as that information isn’t false or misleading. And you can view another person’s protected material that your client provides so long as you didn’t encourage the client to obtain the material improperly.
And lawyers can use publicly available social media to research prospective jurors or sitting jurors, so long as there is no communication with the juror. A lawyer may even view publicly available social media of jurors during the trial, but if the lawyer discovers any misconduct, she must promptly bring it to the court’s attention.
The guidelines are clearly written and filled with common sense. Well worth a look.