New York: Attorney Blogs and Advice to Clients on Social Media Posts

On June 5, the New York State Bar Association Committee on Professional Ethics tackled the issue of lawyer blogs and advertising in Opinion 967. The Committee opined that a lawyer’s blog is not subject to the Bar’s advertising rules when the primary purpose of the blog is not retention of the attorney. However, lawyers should beware because as the opinions explains: “The inquiry is from a ‘columnist who is also an attorney licensed in New York.’ The inquirer has become an employee of a corporation that promotes work-life balance. In that capacity the inquirer will write a blog that will be titled “The [Inquirer’s Name] Esq. Blog.” The blog will not address legal topics but will include posts about work-life balance.”

Per Virginia’s Hunter opinion, most attorney’s blog will likely be subject to the attorney advertising regulations. Click here to read more about that opinion.

On July 2, the Committee turned to the controversial issue of advising clients regarding the contents of their social media accounts in Opinion 745. In the opinion, the Committee warns lawyers not to misrepresent themselves to obtain access to social media information, discussed the role of privacy settings, and the altering of content on social media in anticipation of litigation. Notably, the opinion suggests that, in cases where removal of information from social media sites does not violate  substantive law regarding destruction or spoliation of evidence, there is no ethical bar to advising a client to “take down” content. Unfortunately, the opinion does not clarify this suggestion by providing examples nor does it comment on whether deleting social media posts on the Internet, but maintaining copies of the posts would avoid spoliation issues.

The opinion also reminds attorneys of the ethical duty to not bring or defend frivolous claims, suggesting that a lawyer may commit an ethics violation by continuing to represent a client after learning that  a client’s social media posts reveal information that negate the validity of the client’s claims.

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