Social Media & Legal Ethics

It’s been a while since I’ve blogged, and even longer since I’ve subjected readers to the mantra upon which this blog was built:  competence includes tech competence.

With that in mind, an update!

A few weeks ago, the Commercial and Federal Litigation Section of the New York State Bar Association released its updated Social Media and Legal Ethics Guidelines.  First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media.  While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Here’s an outline distilled from the table of contents:

  1. Attorney Competence
  2. Attorney Advertising and Communications Concerning a Lawyer’s Services
  3. Furnishing of Legal Advice through Social Media
  4. Review and Us of Evidence from Social Media
  5. Communicating with Clients
  6. Researching Jurors and Reporting Juror Misconduct
  7. Using Social Media to Communicate with a Judicial Officer

There’s also an Appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases.

(no, I’m not sure that “social media’s more commonly used words & phrases” is proper grammar.  But I tend to write like I speak, and if I said it out loud, you’d know exactly what I meant.)

Anyhow, the Guidelines are a great resource.  I recommend bookmarking the link.

Finally, thank you Dave Carpenter for the h/t that the Guidelines had been updated!

Social Media

Monday Morning Answers

Happy fiscal new year!

Friday’s questions are here. The answers follow today’s Honor Roll.

Honor Roll

  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Merrill BentWoolmington, Campbell, Bent & Stasny
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew DelaneyMartin & Delaney Law Group
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Deb Kirchwey, Esq.
  • Aileen LachsMickenburg, Dunn, Lachs & Smith
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Caryn WaxmanBarber & Waxman
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 


Question 1

The rule prohibits communicating with a represented __________:

  • A.   Party
  • B.   Person

This is Rule 4.2.  It applies to “persons and matters,” which is broader than “parties and cases.”

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

FalseComments [2] & [4] to Rule 1.1

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

  • A.   Contingent fees.  Rule 1.5(d)
  • B.   Flat fees
  • C.   Conflicts with former clients
  • D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

  • A.   must not disclose the case
  • B.   may disclose the case
  • C.   may disclose the case if Client consents
  • D.   must disclose the case. 

This is Rule 3.3(a)(2).  Failure to disclose violates the duty of candor to the tribunal.

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Cassius Clay (Muhammad Ali).  The case was Clay v. United States.  The National Constiutiion Center has the story here.

The most famous photo of Ali ever taken is of him standing over Sonny Liston, who appeared to have thrown their 1965 bout. It was taken by Neil Leifer and was shot in colour. Spare a thought then for John Rooney, sat right beside Leifer, who captured this less-acclaimed version. Growing up, I remember buying this one and loving it all the same.