{"id":18,"date":"2014-06-18T15:55:00","date_gmt":"2014-06-18T15:55:00","guid":{"rendered":"https:\/\/www.sherin.com\/professional-liability\/2014\/06\/18\/social-media-ethical-guidelines-what-lawyers-need-to-know\/"},"modified":"2023-11-08T18:47:45","modified_gmt":"2023-11-08T18:47:45","slug":"social-media-ethical-guidelines-what-lawyers-need-to-know","status":"publish","type":"post","link":"https:\/\/www.sherin.com\/law-firm-defense\/2014\/06\/18\/social-media-ethical-guidelines-what-lawyers-need-to-know\/","title":{"rendered":"Social Media Ethical Guidelines: What Lawyers Need to Know"},"content":{"rendered":"

Don\u2019t let your online activities land you on the bar discipline docket.<\/p>\n

The New York State Bar Association\u2019s Commercial and Federal Litigation Section has published a set of Social Media Ethics Guidelines<\/a> that provide useful guidance for all lawyers (not just New Yorkers) on the use of social media. \u00a0While the Guidelines set forth a broad outline for dealing with social media, lawyers will still need to think hard about their particular situations. \u00a0Below are some of the guidelines that lawyers and law firms should keep in mind.\"kirchofer<\/p>\n

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On-Line Advice<\/span>:\u00a0 What should you do if a Facebook friend posts a legal question?\u00a0 Answer it?\u00a0 Have you created an attorney-client relationship?\u00a0 Do you owe a duty to all of your friend\u2019s Facebook friends who will see that advice and possibly rely on it?\u00a0 The New York Guidelines suggest that you should keep any reply broad and general.\u00a0 \u201cA lawyer may provide general answers to legal questions asked on social media. \u00a0A lawyer, however, cannot provide specific legal advice on a social media network because a lawyer\u2019s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.\u201d\u00a0 (Guideline 2.A).\u00a0 Great social media advice, but the Guidelines do not say when a \u201cgeneral answer\u201d becomes \u201cspecific advice.\u201d \u00a0A good rule of thumb would be \u2013 if the request is specific and includes specific information about your friend\u2019s situation \u2013 do not answer the question on Facebook.<\/p>\n

Advertising<\/span>: The Guidelines also say that if you use your social media profile primarily for your law business \u2013 think LinkedIn \u2013 it is subject to the rules governing attorney advertising and solicitation.\u00a0 (Guideline 1.A).\u00a0 When using Twitter to market your practice, the Commentary to the Guidelines says that you may \u201cutilize commonly recognized abbreviations for information that is required in attorney advertisements.\u201d\u00a0 The Guidelines thus suggest that you will need to devote some of your 140 characters to complying with advertising rules, but they don\u2019t say exactly what content would make for a compliant Tweet.<\/p>\n

New York\u2019s Rule of Professional Conduct 7.1(f)<\/a> requires all lawyer advertising to say \u201cattorney advertising.\u201d \u00a0Presumably, then, attorneys can say \u201cAtt\u2019y Ad\u201d or something similar in their Tweets.\u00a0 The Massachusetts Rules of Professional Conduct<\/a> do not require \u201cAttorney advertising\u201d but do require that any advertising \u201cinclude the name of the lawyer, group of lawyers, or firm responsible for its content.\u201d\u00a0 Mass. R. Prof. C. 7.2(d).\u00a0 Thus, Massachusetts lawyers may have a few extra characters in their advertising Tweets than New York lawyers, though they should Tweet under their own names \u2013 not a clever screen name.<\/p>\n

That said, the Massachusetts rules could still raise compliance issues for lawyers who use social media \u2013 particularly concerning Rule 7.3 which governs solicitation of professional employment.\u00a0 For example, the Office of Bar Counsel has previously advised<\/a> that \u201cbulletin boards, which display information in cyberspace and allow people to post and respond to messages, \u2026 do not involve real-time, live interaction between lawyers and prospective clients\u201d and are thus in-bounds for lawyers to advertise and solicit clients.\u00a0 On the other hand, \u201csolicitation through \u2026 interactive computer-accessed chat rooms is prohibited as in-person solicitation\u201d where the chat rooms \u201coffer conversation that is live, interactive and conducted in real-time or near real-time.\u201d\u00a0 On this rationale, a lawyer who finds herself in a \u201creal-time\u201d Twitter or Facebook conversation could unwittingly breach Rule 7.3(d) (prohibiting \u201cin person\u201d solicitation).<\/p>\n

Among the other useful tips from the New York Guidelines:<\/p>\n