Principles on social media conduct for lawyers

Posted on 10th Jul 2014 in Legal Profession

Given the popularity of social media among members of the legal profession, particularly Twitter (an ideal medium for the robust adversarial exchange of views), it is not surprising that regulatory bodies should wish to promote its use in a responsible and professional manner.

This post was updated on 12 July 2014.

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The International Bar Association (IBA) has recently adopted International Principles on Social Media Conduct for the Legal Profession.

Its purpose is to “assist bar associations and attorney regulatory bodies around the world to promote social media conduct within the legal profession that conforms to relevant rules of professional responsibility as well as considerations of civility.” So, no trolling your oppos, then.

There are six principles, each of which is explained in more detail in the document:

  1. Independence (“lawyers should reflect upon the professional implications of being linked publicly” to judges, clients, other lawyers etc. Or indeed governments. They “ought to project the same professional independence and the appearance of independence that is required in practice”).
  2. Integrity (“think about the impact social media could have on a lawyer’s professional reputation” – especially where something might “go viral”).
  3. Responsibility, “to understand use” of social media and its implications; “to clarify use” and the capacity in which they release content using social media and whether it is “intended to be relied upon as professional advice”; “to use appropriately”; “to adhere to practice promotion, advertising and solicitation rules, codes and legislation in use”; and to be aware of “conflicts of interest”.
  4. Confidentiality (“social media platforms are not appropriate for dealing with client data or other confidential information”; lawyers should also “consider client confidentiality more generally when using social media”).
  5. Maintaining public confidence (“restraint should be exercised so that online content adheres to the same standard as it would offline in order to maintain a reputation demonstrating characteristics essential to a trusted lawyer”)
  6. Policy (“employees of the practice [that engages in social media] should be given clear guidance and instructions on their correct use … in a work related capacity”.)

This follows the IBA’s report, two years ago, on the Impact of Online Social Networking on the Legal Profession and Practice (Feb 2012).

Do we need this?

In England and Wales, the Bar Handbook (2014) refers, at para gC22, to the “Media comment guidance” (April 2013) contained in para 709 of the former Code of Conduct:

This defines “media comment” as including comment on social media such as Twitter. The guidance notes that

barristers are free to make comments to or in the media. However, because of the special position they occupy, certain rules will continue to limit the circumstances in which it will be appropriate for barristers to comment on cases in which they have been instructed and what they can properly say.

It then clarifies the ethical obligations, including four which seem to mirror the IBA guidance:

6. The ethical obligations that apply in relation to your professional practice generally continue to apply in relation to media comment.  In particular, barristers should be aware of the following:

a. Client’s best interests: Rule 303(a) requires a barrister to promote fearlessly and by all proper and lawful means the lay client’s best interests and to do so without regard to his or her own interests.

b. Independence: Rule 306(a) states that you must not permit your absolute independence, integrity and freedom from external pressures to be compromised.

c. Trust and confidence: Rule 301(a)(iii) provides that you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession.

d. Confidentiality: Rule 702 requires you to preserve the confidentiality of your lay client’s affairs and you must not undermine this unless permitted to do so by law or with the express consent of the lay client.

The new Handbook does not itself seem to contain any specific reference to social media, but section C2, under which the guidance in para gC22 refers back to the old Code of Conduct quote above, is concerned with “Behaving ethically”.

What about solicitors?

The Solicitors Regulation Authority (SRA) Code of Conduct does not appear to contain any references to social media as such, but there is a chapter (Chapter 8) on Publicity, aspects of which may be relevant. However, the Law Society has issued a very specific Practice note on Social Media, which deals with the matter pretty thoroughly. It mirrors the IBA guidance in warning:

In addition to the benefits, it is important that there is an awareness of the potential risks involved. One of the fundamental considerations that those participating in social media activity should take into account is the potential blurring of the boundaries between personal and professional use, and the importance of recognising that the same ethical obligations apply to professional conduct in an online environment.”

It then identifies, at para 3, how the use of social media should adhere to the Principles and SRA Code of Conduct, including:

  • Principle 2- You must act with integrity
  • Principle 3- You must not allow your independence to be compromised
  • Principle 6- You must behave in a way that maintains the trust the public places in you and in the provision of legal services

adding:

In addition to these Principles, you must consider the SRA Code of Conduct 2011 (SRA Code) when you are participating in social media, specifically chapter 1 on Client care, chapter 4 on Confidentiality and disclosure, chapter 8 on Publicity and chapter 11 on Relations with third parties.

No doubt all professions need to consider how their members interact with each other and with the public via social media, but lawyers in particular need to take care, bearing in mind that their own reputation is one of their most valuable professional assets, and no one can protect a client’s reputation and interest without first protecting their own.

 

UPDATED 12 July 2014. The SRA has commented as follows:

Chapter 8 of the Code of Conduct deals with the outcomes solicitors must achieve when deciding on their publicity materials.

Outcome 8.3 is usually the most instructive of these, as it says: “you do not make unsolicited approaches in person or by telephone to members of the public in order to publicise your firm or in-house practice or another business”.

The ethos of this, as outlined in Indicative Behaviour IB8(5), is that it’s okay to have publicity where people will see it, but can ignore it. If they have no choice but to interact – answer the telephone, talk to someone in the street etc – then the Code has been breached.

Translating this for Social Media, if a firm was using its Twitter account to publicise its services, that’s fine as the account would need to be followed or found in a search. If the firm tagged someone by username in a tweet however, they would have to be confident that that wasn’t classed as intrusive.

There have been discussions about whether more specific guidance is needed about Social Media and how Chapter 8 impacts upon it, but as yet we have no evidence that solicitors are failing to achieve the outcomes. If we did find there was a problem, then we would of course review the situation.

 

 

Comments on this piece will be welcome via twitter @TheICLR (publisher) and/or @maggotlaw (author).

Image gratefully adopted from Authority Publishing.