Page 21 - Mar2019_BarJournal

COLuMN BarJournal

JULY/AUGUST 2015

TakEawayS frOM a

COMPrEHEnSIvE SET Of

SOCIal MEdIa ETHICS gUIdElInES

Sachin Java ETHICS PErSPECTIvE

he growth of social media use by such profiles should restrict the use of “specialist” content may be maintained or made nonpublic
lawyers and clients has given rise as described in the ethical rules. with regard to the client’s social media account.
to a unique set of ethical issues. Under the ethical rules related to In doing so, however, the lawyer must be
Disciplinary bodies across the communications and advertising, any cognizant of preservation obligations applicable
T nation have developed guidance testimonial that is false, misleading or non- to the client and/or matter, including applicable
to tackle some of these concerns. Of note, the verifiable is prohibited. As such, the attorney laws and regulations. Advice can also be
New York State Bar Association has developed has a responsibility to monitor and remove such proffered in regard to posting new content on
the most comprehensive analysis of these matters social media content. If removal is restricted, social media, as long as the proposed content
through their Social Media Ethics Guidelines with caution, a lawyer may clear up the false is not known to be false by the lawyer.
(NY Guidelines). It is only a matter of time before or misleading characteristic of the review by Overall, care must be taken to ensure client
disciplinary bodies in other states, including responding to the testimony. confidences are not compromised when
Ohio, develop such recommendations regarding When posting on social media, prudence must utilizing social media.
social media. As a precursor, familiarity with the also be taken not to create potential conflicts with
guidelines can assist practices across the nation current clients when communicating and stating Researching Jurors, Reporting Juror
to resolve some of these ethical dilemmas. This positions on issues and legal developments. Misconduct
article presents some of the salient aspects of the Researching jurors’ public posts does not
NY Guidelines, last updated on May 11, 2017. Furnishing of Legal Advice Through Social present an issue, but care should be taken
Media that the lawyer does not communicate with the
Attorney Competence General responses to legal questions on social juror (including communications automatically
Described further in the sections below, social media may not be a problem. However, an generated by the social media network or
media is currently being utilized by attorneys attorney should tread carefully when answering through the lawyer’s agent). Moreover, when
and their clients for several purposes. Thus at such questions, as specific legal advice has the the trial is ongoing, juror’s public posts may be
minimum, to fulfill the competency requirements potential to create an unintended attorney- utilized to report juror misconduct.
of the ethical rules, an attorney needs to be client relationship. If an attorney utilizes social
conversant with the basics of each social media media to communicate with a client relating to Conclusion
network that a lawyer uses in connection with legal representation, the attorney should retain Ethical issues faced by attorneys continue to
the practice of law, or that his or her client may records of those communications. grow as social media networks proliferate and
use if it is relevant to the purpose or purposes become more sophisticated. The principals
for which the lawyer was retained. Review and Use of Evidence from Social Media outlined in the NY Guidelines provide a good
While utilizing information obtained from the general overview to generate “best practices”
Attorney Advertising public portion of a person’s profile may not for attorneys in relation to social media.
The NY Guidelines conclude that a lawyer’s present an issue, acquisition and use of content
social media profile that is used only for personal from private or restricted sections presents its
purposes is not subject to attorney advertising own set of ethical concerns. The NY Guidelines Sachin is an Associate at Gallagher Sharp LLP. A
and solicitation rules. However, a social media indicate that express consent from counsel must particular focus of his practice involves professional
profile, posting, or blog a lawyer primarily be sought prior to contacting or viewing the liability litigation, including defending attorneys
uses for the purpose of the retention of the restricted social media of a represented party. Use in legal malpractice actions. Along with fellow
lawyer or his law firm is subject to such rules. of an agent to obtain social media information Gallagher Sharp attorneys, Shane A. Lawson, Esq.,
Hybrid accounts (such as Twitter account with also gives rise to ethical concerns and must be and Paige M. Rabatin, Esq., he hosts “Debriefed:
law-focused posts along with some sports/ dealt with according to the ethical rules. The Lawyers Podcast.” He currently serves on
politics) may also need to comply with attorney the Ethics Committee and has been a CMBA
advertising and solicitation rules if the primary Communicating with Clients member since 2011. Sachin can be reached at
purpose is retention of the attorney. Of note, any The attorney may advise a client as to what (216)522-1164 or SJava@GallagherSharp.com.
MarCH 2019 CLeveLand MeTroPoLITan Bar JoUrnaL | 21