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A General Approach to Using Social Media

Earlier this year, the New York State Bar Association issued Social Media Ethics Guidelines. The Guidelines are intended to apply to lawyers practicing in New York. They recognize that there is no single set of rules or practices that can apply across the country, since not only do different jurisdictions have different rules of conduct and ethics opinions, but different jurisdictions also have different social mores. What makes the Guidelines interesting to an Illinois lawyer is their overall approach to the relation of social media to ethical conduct.

The NYSBA set out five Guidelines:
1. Attorney Advertising – applying the advertising Rules to statements made on the social media.
2. Furnishing of Legal Advice Through Social Media – applying the general rules and opinions regarding giving legal advice on websites and other Internet vehicles.
3. Review and Use of Evidence from Social Media – a more complex issue concerning what information posted by an individual is public and ethically subject to review and use by a lawyer and what is private and not reviewable. There are also issues on contacting a person who is represented by counsel.
4. Ethically Communicating with Clients – dealing with the extent a lawyer can ethically advise his or her client to remove, add or revise content on the client’s social media website.
5. Researching Social Media Profiles of Prospective and Sitting Jurors – covering the extent to which a lawyer can research the postings of prospective and sitting jurors.

The Guidelines also remind lawyers that the ABA Model Rules and a growing number of ethics opinions require a lawyer to keep abreast of changes in technology, including use of the Internet and social media.

In general, the Guidelines do not contain anything new. Its subjects have been addressed in numerous publications and websites, including many of these columns. However, the Guidelines put the discussions all in one place, which raises the question – is there a general approach a lawyer can take when making use of social media? I believe there is.

A major complication in using social media is the appearance of privacy. There is you, your keyboard and a screen. You post something on your Facebook wall, you answer a question someone asked on LinkedIn, you Google the name of a party or witness in a case you are handling. It all seems very private.

I suggest that the Guidelines suggest a different approach. Imagine that instead of sitting at a keyboard you are standing at a podium in a crowded conference room. Everything that you say and that is said to you is public. It is unlikely that you would give legal advice to a question from the audience. You would be sensitive to issues of confidentiality, conflicts, and the attorney-client relationship when you are in a room full of people. The same should apply when you dealing with social media.

Or consider that an adverse party in a lawsuit is giving a public lecture. There is no reason you cannot sit in the room and take notes on what he or she is saying. However, you should be sensitive about asking questions without the consent of the party’s counsel.

There are numerous other examples. The common theme is to treat your dealings on social media as a public appearance. If you do so, you may avoid some embarrassing, and perhaps costly, mistakes.