New York State Bar Association issues updated opinion on lawyers’ social media use

The New York State Bar Association (NYSBA) issued a new opinion on lawyers’ use of social media last week to “assist lawyers in understanding the ethical challenges of social media.” The opinion provides new insight on the following:

• The extent to which lawyers’ ‘hybrid’ social media accounts are subject to ethical rules on advertising and solicitation;
• The types of situations where lawyers are permitted to preserve social media messages used to communicate with their clients;
• Whether it is a violation of lawyers’ ethical obligations to access a juror’s public profiles on social media that notify the individual when their social media account has been accessed; and
• The responsibility of lawyers to notify the judiciary of suspected juror misconduct discovered through social media accounts.

Additionally, the new opinion includes two new guidelines:

Guideline No. 1: A lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool, and a means to research and investigate matters.

Guideline No. 7: A lawyer shall not communicate with a judicial officer over social media if the lawyer intends to influence the judicial officer in the performance of his or her official duties.

Guideline No. 2 was revised to clarify that “hybrid” social media accounts “used for business and personal purposes” are also subject to ethical rules related to advertising and solicitation. That means that Rule 7.1(d) applies to these hybrid social media accounts, including a lawyers’ ‘tweets’ and Guideline No. 2 notes that it “may be impractical or not possible” to use a disclaimer on a tweet (since the tweet is limited to 140 characters) but these types of “structural limitation[s] [do] not provide justification for not complying” with ethical rules. With the use of social media embedded in our society, more and more concerns may arise when it comes to legal ethics and the interaction with clients, jurors, witnesses and other attorneys.