Last Wednesday, the ABA Journal reported that the New York State Bar Association's House of Delegates would be considering social media ethics guides for lawyers on Saturday during the State Bar's meeting. The story was picked up by several people, including noted blogger and social media expert, Kevin O'Keefe, in his post, "New York Social Media Ethics Guidelines a roadmap or a rabbit hole?" in which O'Keefe questions the necessity for a specific set of guidelines specifically addressing social media and opines that the general rules should suffice to cover these new technologies.
The guidelines being considered appear to be the most recent version of guidelines put together by the New York State Bar Association's Commercial and Federal Litigation Section, but these guidelines are not new (here's a version from 2014). Nor are they particularly surprising. They were developed based on the New York Rules of Professional Conduct and various ethics opinions which have interpreted those rules. While most of the ethics opinions cited in the guidelines are from New York, there are opinions cited from other states where no New York ethics opinions could be found and another jurisdiction's rule was similar.
As O'Keefe says in his post,
Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?
Blogging, social media, social networking and the like are learned through trial and error. A lawyers common sense, good judgment and a working understanding of existing ethics rules guide them.
Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.
Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.
But the fact is that attorneys have been inquiring about the rules that govern social media, as evidenced by opinions such as NYSBA Committee on Professional Ethics Opinion 1009, issued in May of 2014, discussing whether tweets in a specific circumstance require a disclaimer under the New York rules, or Formal Opinion 748 of the New York County Lawyers Association Professional Ethics Committee issued in March of 2015 addressing LinkedIn ethics with respect to skills, endorsements and recommendations.
"Should" lawyers be able to use common sense and apply the existing ethics rules to new technologies like social media the same way they have with previous technologies? Probably. Have most attorneys been able to do so? So far, it seems that way. Will the guidelines scare some attorneys away? Perhaps, but the fact is that the attorneys who are able to use "common sense" to apply the rules to social media, should be able to do the same with regard to the guidelines and still use social media effectively. Indeed, since the guidelines suggest that attorneys should have at least a basic knowledge of social media (since their clients may use it, even if they don't), the guidelines may have the opposite affect - once attorneys learn about these tools, they may be less afraid to use them.
Are specific guidelines necessary? Probably not. Will they be helpful to many attorneys? That remains to be seen; I haven't seen any reports about the action taken by the House of Delegates last weekend, and a link on the Home page of the NYSBA website that purports to lead to a recent report on Social Media Ethics Guidelines appears to lead to an unavailable page. But New York isn't the first or only state to issue similar guidelines about social media use for attorneys - take, for example, Pennsylvania.
In New York, even if adopted, the guidelines would be just that - guidelines - just as the ethics opinions are advisory and only issued based on the specific circumstance in the inquiry presented. Whether an attorney can or will be disciplined as a result of social media use (or misuse) remains to be seen, but the disciplinary authority often relies upon guidelines and ethics opinions such as these, so like it or not, New York attorneys need to take heed.