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Get ready, New York lawyers. The Empire State is updating its social media guidelines. The new set of guidelines, prepared by the Commercial and Federal Litigation Section, seeks to update its policy given the increasing importance of social media in lawyers' practice, advertising, and free time.
The new guidelines are almost twice as long as the New York State Bar's previous social media policy. The biggest change? Lawyers can no longer stick their head in the sand -- understanding social media is a now a must for all New York attorneys.
Social Media Knowledge as Competent Representation
The New York State Bar's first social media guideline, and the biggest change from its previous policy, is that lawyers have "a duty to understand the benefits and risks and ethical implications associated with social media." That goes for the use of social media in communication, advertising, and as a research or investigation tool.
Does that mean you suddenly have to become a Twitter power user or learn the ins and outs of Facebook? No, but it wouldn't hurt. (FindLaw's Social Media for Attorneys Miniguide can help you out if you're looking to step up your social media game.) Comments to the new requirement state that lawyers need to be, at minimum, "conversant" with the basics of "each social media network that a lawyer or his or her client may use."
"Conversant" is a light standard, but I'm not sure if the New York Bar appreciates just how many social media networks clients might be using -- familiarity with each and every one could be asking a bit much.
The Bottom Line: Take Social Media Seriously
At the core of the new guidelines is the idea that lawyers need to take social media seriously. First, they must be familiar with it and understand the risks and benefits involved with social media use. Second, they cannot treat the Internet like some other world, where typical ethical requirements do not apply.
Lawyers need to retain social media communications just as they would paper communications. For example, social media advertising must include disclaimers just as traditional advertising would -- including a disclaimer in your tweets if you're advertising on Twitter. Finally, lawyers must ensure the accuracy of third party legal endorsements online. Among other things, this means making sure your LinkedIn endorsements are not misleading.
The new guidelines, however, are simply guidelines at this point. They haven't been adopted by the Bar and are only instructional, according to the New York Law Journal.