#abaopinion466

Recently, we hosted a Twitter chat on “Top 5 Insights on Lawyer Ethics and Social Media.” The discussion touched not only on lawyer ethics, but litigation issues surrounding social media as well. 

Enjoy the Q&A below with Patrice from the wireLawyer team and attorney Ignatius Grande of Hughes, Hubbard and Reed :

Q: Can you please share with us a few ways that you use social media to grow your law practice?

A: I enjoy using Twitter to learn about e-discovery and social media law developments, and to share interesting tidbits with my followers.

Q: Recently, we observed that a lot of senior attorneys do not have Twitter accounts. Many lawyers are still nervous about the implications. What are the biggest concerns that you hear?

A: There is definitely some misunderstanding of Twitter among senior attorneys and judges, but it can be a powerful tool. I believe that it’s mostly a lack of understanding regarding what Twitter is and how attorneys can use it. 

Q: What is your advice to them? 

A: My advice is to start as a passive user ingesting content from lists and you will quickly see the benefits. I am a big proponent of lists to gather Twitter content - mine include #socialmedialaw #ediscovery #reporters and #NYLitigation.

Q: What is Insight #1?

A: Lawyers need to be savvy about social media so that they can properly advise clients on their presence. Lawyers can be savvy on social media by truly understanding each platform at issue and the potential ramifications.

There have been sobering examples in recent years of clients spoilating/deleting social media evidence in cases. Cases include Lester V. Allied Concrete, Gatto v. United Airlines, Painter v. Atwood, and more to come.

Corporate clients are becoming more active on social media and have increasing regulatory and legal obligations.

Q: What is Insight #2?

A: Attorneys should take advantage of resources, which now include @NYSBAComFed Ethics Guidelines. I co-chair the New York State Bar Commercial and Federal Litigation Social Media Committee with Mark A. Berman, which drafted the Ethics Guidelines.

We tried to pull together ethics guidelines for attorneys which hit all of the major ethics opinion areas - attorney advertising, getting evidence via social media, researching jurors, and providing advice to clients. 

Q: What is Insight #3?

A: Attorneys that work with juries, need to be aware of many ways that social media can complicate the jury process. Juries rampant use of social media has caused many juror issues in recent years, some resulting in mistrials. Juries tweeting thoughts on cases, following case reporters, tweeting and becoming friends with each other are some examples of the issues.

In regards to whether attorneys can research jurors on social media - NY ethics opinion says jurors can’t receive notifications that they are being viewed. ABA issued Opinion 466 on jurors and social media. The ABA position is that jurors receiving notifications is okay - I prefer the NY position. 

Q: What is Insight #4?

A: Attorneys have obligations to make use of social media in litigation, but in an ethical manner. Attorneys must research the public content of other parties and understand what social media they should request in discovery.

Q: What is Insight #5?

A: Law firms and attorneys can and should have a social media presence, but must be smart about decisions they make. Social media policies need to be in place to provide guidance to individual attorneys. Confidentiality is important. The policies must also take into account state opinions. Florida in particular has stringent Twitter requirements.