Last week, the New York State Bar Association came out with a comprehensive set of “social media ethics guidelines.” The creators take pains to point out that what they’ve created is more like the Pirate’s Code than something having the force of law.
Which is fair, considering the NYSBA isn’t a mandatory bar association and it has no licensing or disciplinary power over attorneys.
Nonetheless, given the prominence of the organization and the depth into which social media has been delved, these Guidelines are sure to get much attention, and even deference. So let’s look at how good a job the NYSBA did on the portions of the Guidelines relating to social media and the advertising rules.
Guideline No. 1.A Applicability of Advertising Rules
The NYSBA says that for social media profiles used for “hybrid” purposes – both personal and business – it would be “prudent” to assume the attorney advertising rules apply. That’s fair, if a bit conservative. Social media profiles that have a mixed purpose (as properly used ones would) aren’t commercial speech; there wouldn’t be a need to put an advertising disclaimer on a twitter bio, for instance. The question would really turn – as the California Bar noted – on the substance of individual social media updates.
As putting advertising messages in social media updates is spectacularly clumsy and ineffective, there’s a very simple way to avoid the question of the ethics rules entirely:
Don’t include advertising messages in your social media updates.
Guideline No. 1.B: Prohibited Use of “Specialists” on Social Media
The NYSBA says that lawyers can’t include any information under a heading that reads “Specialist” (and, presumably, the derivative “specialties”). Some social media platforms may have default headings like this, and the NYSBA view is consistent with New York’s advertising rules (and those of many other states) that prohibit the use of terms like “specialist,” “specialty,” “expert,” and “expertise.”
That doesn’t make it right. None of these “forbidden words” regulations are likely to survive constitutional scrutiny. The problem is statements that mislead consumers into thinking some legitimate organization has certified an attorney as a specialist. Without reference to third-party certification, these statements simply indicate the attorney’s area of focus and attention. And there’s no legitimate state interest in preventing an attorney from innocuously stating, for example, that they “specialize” in elder law, or have “expertise” in federal energy regulation.
Guideline No. 1.C: Lawyer Solicitation to View Social Media and a Lawyer’s Responsibility to Monitor Social Media Content
This one starts out OK, noting that attorneys aren’t responsible for social media postings made by others – say, reviews on Avvo or comments on a lawyer’s blog. It’s nice of the NYSBA to recognize this, since the law – 47 U.S.C. 230(c)(1), to be precise – explicitly states that people aren’t responsible for third-party postings.
But then the Guidelines get into more troubling territory. First comes the assertion that attorneys are responsible for such comments when the attorney “prompts such person to
post the information or otherwise uses such person to circumvent the ethics rules concerning advertising.”
The latter part is fine; as New York attorney Eric Turkewitz famously noted, “outsourcing marketing = outsourcing ethics.” There’s no question an attorney would be responsible for content created at the lawyer’s behest by a third party.
But “prompted?” That’s far too overreaching. Attorneys SHOULD be prompting their clients to leave online feedback for them. And unless the attorneys are putting words in their client’s mouths, they are not responsible – under the attorney advertising rules or otherwise – for what those clients write. 1
Doubling down, the NYSBA then goes on to state that attorneys have an obligation to monitor third party information posted to their social media profiles, and take down anything that may run afoul of the advertising rules. If the attorney can’t remove it, they’re supposed to ask the person who posted it to remove it. And failing that, they should consider whether a “curative post” needs to be made.
While there’s no question that moderation is a good idea, there’s also no question that attorneys shouldn’t have the force of law hanging over the diligence of that moderation. I’d rather see a state for once recognize that this regulatory interpretation is completely preempted by federal law rather than chilling attorney use of social media.
2. FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA
Guideline No. 2.A: Provision of General Information
The Guidelines note that it’s OK to provide general information over social media, but not to provide specific legal advice, given concerns about creating an attorney-client relationship and disclosing privileged information.
That’s sound advice, for the most part. However, it’s not a concern in places – like Avvo Answers or Quora – where the person asking the question is anonymous. It’s also important to recognize that social media in many ways is simply facilitating the types of general legal discussions that attorneys have always had with friends, colleagues and acquaintance offline. General information to orient the asker is given first, with more specifics – if necessary – provided in a more formal setting. There’s nothing unique about social media in this respect.
Guideline No. 2.B: Public Solicitation is Prohibited Through “Live” Communications
I liked this part of the Guidelines, as it bolsters the idea that only “live” communications – whether in-person, telephonic, or electronic – are subject to limitation as solicitation. Soliciting business through social media may be ugly and counter-productive, but it shouldn’t lead to an ethics violation.
The remaining Guidelines relate to how to handle social media questions that come up while representing clients and in litigation. They seem complete, thoughtful and well-balanced. And while it’s beyond the scope of this post, I’ll make this observation: for lawyers who represent consumers – particularly in litigation – facility with social media is rapidly becoming a job requirement.