Last week, in part 1 of this series, I discussed the 2015 Social Media Ethics Guidelines (www.nysba.org/FEDSocialMediaGuidelines), which had just been issued by the Commercial and Federal Litigation Section of the New York State Bar Association.
I explained that the 2015 edition updates the inaugural guidelines, which were released March 2014, and include two new sections on Attorney Competence and Using Social Media to Communicate with a Judicial Officer. Additionally, new subsections have been added which address: 1) Lawyer’s Responsibility to Monitor or Remove Social Media Content by Others on a Lawyer’s Social Media Page; 2) Attorney Endorsements; 3) Retention of Social Media Communications with Clients; and 4) Maintaining Client Confidences and Confidential Information.
I also noted that while this comprehensive set of guidelines was drafted by a very knowledgeable group of lawyers, some of whom I know personally, and offers insightful and practical advice regarding the issues presented when lawyers interact online, I wasn’t convinced that separate guidelines were warranted for social media interaction. It’s always been my position that social media should be treated no differently than any other type of communication since online conduct is simply an extension of offline conduct.
That being said, this particular document provides useful advice for New York lawyers seeking to interact online — with two caveats. I addressed the first one last week and shared why I thought that the newly added Guideline 2D, which addresses the responsibility of lawyers to monitor and remove problematic attorney endorsements found on social media, placed an undue burden on lawyers to monitor the vast and ever-changing assortment of online lawyer profiles and social media sites.
The other section with which I disagree is the committee’s recommendation in Guideline 4B relating to an attorney’s ethical obligations when seeking to connect with an unrepresented party on social media in order to obtain evidence. In this section the committee cites NYCBA, Formal Op. 2010-2 (2010) and concludes that “In New York, there is no ‘deception’ when a lawyer utilizes her ‘real name and profile’ to send a ‘friend’ request to obtain information from an unrepresented person’s social media account … In New York, the lawyer is not required to disclose the reasons for making the ‘friend’ request.”
I would argue that the issue is not that black and white in New York. The New York State Bar Association Committee on Professional Ethics addressed this issue tangentially in Opinion 843 in 2010. In it, the committee concluded that lawyers may view publicly available information on social media relating to parties (there was no indication as to whether the parties referred to were represented by counsel).
Importantly, the committee opined the following conclusion regarding the viewing of public social media pages: “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).”
In other words, the committee implied that “friending” a party to a lawsuit could be unethical. For that reason, I believe that it is currently unclear whether it would be ethical for New York lawyers or their agents to “friend” a party to litigation without providing more information, such as the underlying reason for the interest in connecting, which is what all other jurisdictions that have addressed this issue thus far have concluded. So, I would suggest that it would be prudent for lawyers to err on the side of caution and provide all relevant information to unrepresented parties when attempting to view information on their social media profiles that is behind a privacy wall.
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at firstname.lastname@example.org.