Social Media Ethics: Keeping Up with Changing Obligations - October 2015

Hughes Hubbard & Reed

Description

NYCLA opinion states that “[w]‌ ile we do not believe h that attorneys are ethically obligated to review, monitor and revise their LinkedIn sites on a daily or even weekly basis, there is a duty to review social networking sites and confirm their accuracy periodically, at reasonable intervals.”11 This requirement is another example that attorneys can no longer glide by with an ignorance of what social media is; once they set up profiles, they may need to actually monitor them in some way and keep track of what people might be posting on their sites. Some may well evaluate whether participation in too many forms of social media is worth the effort. Duty of Competence in Technological Matters Times have changed in the practice of law, and many governing bodies are now indicating that attorneys should have some expectation or duty of competence as it relates to technology. In 2012, the American Bar Association’s (ABA) House of Delegates voted to amend Comment 8 to Model Rule 1.1, which pertains to competence, to revise the section that requires lawyers to “keep abreast of changes in the law and its practice” to include keeping up with “the benefits and risks associated with relevant technology.” In January 2015, New York State adopted a version of the ABA Comment that similarly imposes a duty to keep abreast “of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”12 In addition, some ethics committees have directly tied this duty of competence to the social media world. In September 2014, the Pennsylvania Bar Association interpreted Rule 1.1 of the Model Rules of Professional Conduct to require that lawyers have “a basic knowledge of how social media websites work,” as well as the ability to advise clients about the legal ramifications of using these sites.13 In June 2015, the updated Social Media Ethics Guidelines from the Commercial and Federal Litigation Section of the New York State Bar Association suggest that an attorney possess an understanding, at a minimum, of the most basic functions of how each system works, what information (particularly client confidences) might be exposed, to whom and how, and the ethical impact of the usage.14 The practice of law and the manner in which professionals and nonprofessionals alike function and communicate have changed dramatically in recent years.

Understanding how social media and technology works and will impact one’s practice is becoming more of a necessity, both practically and as a matter of professional responsibility. Some large companies are now insisting on strict guidelines for communication protocols and protection of sensitive data, and a market for cyber insurance has even developed. Ethics rules and opinions have not yet opted to require specific measures such as encryption, but some ethics committees and bar associations are beginning to consider such measures. Good bankruptcy lawyers devote time to staying up to date with developments relevant to their chosen field, which now includes developments in the new and changing technologies that they use to interact with colleagues, adversaries and clients.

abi Editor’s Note: Stay connected with ABI on Facebook (facebook.abi.org), Twitter (twitter.abi.org) and LinkedIn (linkedin.abi.org). Reprinted with permission from the ABI Journal, Vol. XXXIV, No. 10, October 2015. The American Bankruptcy Institute is a multi-disciplinary, nonpartisan organization devoted to bankruptcy issues. ABI has more than 12,000 members, representing all facets of the insolvency field.

For more information, visit abi.org. 11 Id. 12 New York Rules of Professional Conduct, Rule 1.1, Comment 8. 13 Pennsylvania Bar Association, Formal Opinion 2014-300 (September 2014). 14 Social Media Ethics Guidelines, New York State Bar Association, Commercial and Federal Litigation Section (May 2015). 66 Canal Center Plaza, Suite 600 • Alexandria, VA 22314 • (703) 739-0800 • Fax (703) 739-1060 • www.abi.org .