Thursday, June 18, 2015


Yesterday I reported that the New York State Bar Association was going to discuss whether to adopt new rules on social media later this week.  It turns out that the official agenda for the meeting of the NYSBA states the discussion will be "informational" only.   Apparently there will be no vote on the issue at this point. 

Thanks to Art Garwin, the Director of the ABA Center for Professional Responsibility for letting me know.


  1. A clarification, as I understand it: the document being presented this week is a set of Social Media Ethics Guidelines published by the Commercial and Federal Litigation Section of the New York State Bar Association. The New York Rules of Professional Conduct, however, are promulgated by the Supreme Court, Appellate Division. Sections of the NYSBA have no authority to promulgate rules of professional conduct: this is meant to be nothing more than a set of “guiding principles.”

    For example: the Supreme Court, Appellate Division, has not adopted Comment 8 to ABA Model Rules 1.2, which provides that "a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” (In fact, the Appellate Division has not adopted any of the comments.)

    However, the Social Media Ethics Guidelines state as Guideline No. 1: "A lawyer has a duty to understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool and a means to research and investigate matters.” This is a much stronger statement than Comment 8, but strictly speaking, it has no weight as a rule of professional conduct. It remains to be seen whether the Court applies these Guidelines in future disciplinary actions.