New York social media ethics guidelines

Earlier this week I received a courtesy copy of the New York State Bar Association’s Social Media Ethics Guidelines.

The Guidelines were adopted by the New York State Bar Association Commercial and Federal Litigation Section. The rules will be considered by the New York State Bar Association’s house of delegates this weekend.

Though nice to receive a copy of the guidelines, I couldn’t help but wonder if this was simply down the rabbit hole for New York’s lawyers.

Were the rules needed or were existing ethics rules sufficient? Did the lawyers on the committee (almost 40 strong here) all have a practical grasp of social media? Would we get into the impractical and bizarre, i.e.) discussing disclaimers on tweets, as the committee did here?

Though the section did not do too bad in their draft, I still question laying a set of special guidelines on top of what we already have. If we did it for the fax machine and cell phones, I missed it.

Can we expect new guidelines to be drafted everytime we have something new? Social media was not even a term of art seven or eight years ago. What will we need to address in five years?

Mandating knowledge and lawyer competency of social media seems a little foolhardy. Yet that’s what the committee did. From comments to guideline one on attorneys’ social media competence:

Lawyers… need to be conversant with, at a minimum, the basics of each social media network that a lawyer or his or her client may use. This is a serious challenge that lawyers need to appreciate and cannot take lightly.

Though perhaps well intentioned, this is a stretch to say the least.

Take the audience of lawyers taking in a social media panel I was on at the Texas State Bar Annual Meeting Friday afternoon. If I told them they would be required to be conversant with all of the social media we were discussing or be subject to ethics violations, they would have started laughing at me.

And from the very limited use and knowledge of social media I saw from the group, they would have had every reason to laugh.

The committee also sees lawyers drawing a clear line between the professional and personal use of social networks. That’s not that easy and requiring that you retain a copy of every social networking and social media communication in your professional use is quite a burden.

These social media ethics guidelines will become the heart of every CLE powerpoint presentation on social media and ethics for New York Lawyers for the next next five years. The guidelines are going to seed and spread fear of social media.

Rather than providing an onramp to social media for lawyers as intended, won’t these guidelines scare the heck out of lawyers? Lawyers don’t understand social media to start with and now we layer on ethics guidelines, the relevance of which to particular situations could only be determined by a lawyer with practical knowledge of social media?

Blogging, social media, social networking and the like are learned through trial and error. A lawyer’s common sense, good judgment and a working understanding of existing ethics rules guide them.

Lawyers have been doing exactly this for the last twenty plus years, beginning with online bulletin board systems, message boards, newsgroups, listservs and virtual communities. Lawyers participated and did not drum up ethics sanctions along the way.

Now it’s blogs, LinkedIn, Facebook, Twitter, YouTube and more. And still lawyers are not going down in ethics’ flames.

Maybe I am totally missing something here. I know and have met some of the New York lawyers who were part of the group drafting the guidelines. Good people and fairly knowledgeable on social media.

But why do we need all these guidelines? Where do we benefit? Haven’t New York lawyers networking online for the past 25 years done fine without such guidelines? Where will New York lawyers and New Yorkers be harmed without them going forward?

Image courtesy of Flickr by Tom Simpson