State Bar Association issues new social media guidelines

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The Commercial and Federal Litigation Section of the New York State Bar Association has updated its social media ethics guidelines for lawyers.

The original version of the guidelines was issued in 2014 and last updated in 2015.

The 47-page document covers attorney competence in social media, furnishing legal advice through social media, using evidence from social media, and communicating with clients through social media.

The new edition includes guidance on attorney advertising, responding to online reviews, advice about researching jurors through social media and reporting juror misconduct on social media.

New content includes the retention of social media by lawyers, the tracking of client social media use, communications by lawyers with judges, and lawyers’ use of social media platforms, such as LinkedIn, to communicate with selected audiences, or with the public in general.

The guidelines not only provide direction on an attorney’s personal and professional social media accounts, but explain that attorneys are responsible for content posted by others, such as comments, recommendations and endorsements.

“Whether you are a litigator, transactional attorney, in-house counsel or attorney who uses social media to communicate, blog, or solicit business, you should know the risks and benefits of social media use,” Mark Berman, chair of the Commercial and Federal Litigation Section, said in a news release.

The new version also includes an appendix of key social media terms and descriptions of popular social media platforms.

“The original intent of our committee in issuing these Guidelines was to make it easier for attorneys to comply with the various ethics opinions, which have been issued over the past 10 years addressing social media,” said Ignatius Grande, co-chair of the state Bar Association’s Social Media Committee.

Nicole Black, an attorney who writes the Legal Loop column for The Daily Record, explained that social media became an important issue in the legal community in about 2010.

“It started to affect litigation and that’s when lawyers started to try to understand it and it was on their radar more, and then they realized there was a lot of marketing potential as well, which is where a lot of the issues crop up,” said Black, legal technology evangelist at MyCase.

Lawyers gradually began using social media in more ways — to mine social media for evidence, research jurors, or advertise. More judges got online and new issues developed creating potential ethics dilemmas, which led to new advisory opinions from the state Bar Association and the New York State Advisory Committee.

“There have been enough new opinions issued in enough different situations that have occurred in the last two years because more and more lawyers are using it, as is more of the general population,” said Black.