Social media guidelines for attorneys (Part I)

Nicole Black, The Daily Record Newswire

My good friend Scott Malouf, a Rochester attorney who also aids other lawyers in using social media as evidence, recently advised me that the Commercial and Federal Litigation Section of the New York State Bar Association had just released its 2015 Social Media Ethics Guidelines (www.nysba.org/FEDSocialMediaGuidelines/).

The 2015 edition updates the inaugural guidelines, which were released March 2014, and includes 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.

This comprehensive set of guidelines was drafted by a very knowledgeable group of lawyers, some of whom I know personally. It offers insightful and practical advice regarding the issues presented when lawyers interact online.

That being said, I’ve consistently written in past articles that I don’t believe that social media should be treated any differently from any other type of communication since online conduct is simply an extension of offline conduct. Given my position on this, I don’t necessarily agree that a separate set of guidelines specifically addressing social media is necessary.

But, if there is going to be a set of guidelines adopted by the NYSBA in the near future, this comprehensive document is certainly the one to consider adopting. It provides an extensive overview of New York ethics decisions on a vast assortment of social media-related issues, including attorney advertising and solicitation, mining social media for evidence, and researching jurors using social media.

For the most part, I agree with the advice provided. There are, however, two conclusions/recommendations with which I take issue. In this article I’ll address the first and will address the second next week.
First, there’s the newly added Guideline 2D, which addresses the responsibility of lawyers to monitor and remove problematic attorney endorsement found on social media. In part, this section provides: “A lawyer must ensure the accuracy of third-party legal endorsements, recommendations or online reviews posted to the lawyer’s social media profile. To that end, a lawyer must periodically monitor and review such posts for accuracy and must correct misleading or incorrect information posted by clients or other third-parties.”

And in footnote 25, the following directive is added: “Lawyers should also be cognizant of such websites as Yelp, Google and Avvo, where third parties may post public comments about lawyers.”

In my opinion, this section imposes a nearly impossible burden on lawyers to be aware of and to monitor social media sites and online profiles which they may not have had a part in creating, and over which they may not have any control. Not only are lawyers purportedly responsible for monitoring the content of the profiles they and sites they created, but according to this section they also must be cognizant of other sites where profiles have been created on their behalf and must monitor not only their profiles, but also comments made elsewhere on those sites that relate to the attorney’s services.

The time required to monitor this information and regularly conduct searches on these sites will be substantial. And even more time will be required to stay abreast of the vast numbers of online attorney directories and business review sites, which number in the thousands, with new ones popping up every day.

I would argue that this particular section places an undue burden on lawyers, most of whom are busy trying to keep their heads above water and their law practices out of the red in the midst today’s competitive legal landscape. I believe they should only be responsible for monitoring content on profiles that they’ve claimed, not those over which they arguably might have control should they choose to take the step of claiming their profiles.

Another recommendation in the guidelines that I take issue with relates to mining social media for evidence, so tune in next week for more on that.

And, in closing, I would like to emphasize that although I’m providing constructive criticism about a few aspects of the guidelines, the document as a whole is an impressive piece of work and provides valuable insight and guidance for New York lawyers on how to ethically use social media in their practices.

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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 niki@mycase.com.

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