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The Ethical Perils of Social Media

The Ethical Perils of Social Media

By LIV Ethics

Ethics 

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The summer holiday season is fast approaching – a time for unwinding and celebration.  You remember a party you attended at this time last year where everyone had a really good time and some hilarious pictures were posted on Facebook.  The only problem for you was that you were wearing your firm’s running team T-shirt at the time...
 
Your firm’s partners were less than impressed when they saw the firm’s name displayed in your party pictures.  This year you will be much more careful.  In particular, you will remember that it’s not a good idea to mix your personal social media life with your work.  Also, if your firm has a social media policy, read it carefully and follow it.   It’s a good time of the year for you to remind yourself generally about the ethical perils of social media for solicitors.   
 
So, why do people communicate using social media?   
 
These are just some of the uses to which social media has been put.  
 
Social media is where people look to: 
  • meet people
  • share information/experiences
  • develop friendships and alliances
  • find employment opportunities
  • market and build brands
  • communicate with a broad reach
  • connect with people quickly  
  • create/join communities of people with similar interests  
How many people use social media?  
 
According to the Statistics Portal “the power of social networking is such that the number of worldwide users is expected to reach some 3.02 billion monthly active social media users by 2021, around a third of Earth’s entire population.” (1)  
 
Why should solicitors be careful when using social media?  
 
In a speech given to young lawyers in October 2017 a Federal Court Judge said:  
 
“Social media also can shape or affect relationships and the nature of communications between lawyers, their clients and the general public. Members of the legal profession similarly ought to consider what impact the use of social media could have on their professional and ethical obligations. Those obligations affect a lawyer and judge in all aspects of his or her life and communication. Social media does not change that position even though persons often relax or drop their guard when expressing themselves on social media….   So while lawyers should not avoid social media, they would be well advised to consider carefully their choice of words and, when they publish, have regard to professional and ethical obligations as well as to common sense. In my generation, one commonly used test was to consider what would happen if what you were intending to write appeared on the front page of a daily newspaper – frequently it was a sobering idea.” (2)  
 
What are some of the social media ethical and other risk areas for solicitors?  
 
These include:  
  • Duty to the court and the administration of justice
  • Duty of confidentiality and client legal privilege
  • Inadvertent client engagement
  • Inadvertent disclosure of confidential material
  • Duty of honesty
  • “No Contact” rule
  • Defamation
  • Reputational risk
  • Duty of competence  
In this regard you would be well advised to consult very helpful guidelines for solicitors on the ethical use of social media which were published by the Council of the Law Institute of Victoria in 2012 and updated in 2016. (3)   
 
Shakespeare on social media  
 
The last word goes to the Bard of Avon:  
 
"Commit the oldest sins the newest kind of ways”
 
Shakespeare, Henry IV, Part 2, Act 4, Scene 5  
 
In the preface to their excellent book on Legal Ethics and Social Media two American lawyers have written:   
 
“The Bard of Avon may not have had a Facebook account or a Twitter handle, but he certainly knew that even as times changed and new inventions transformed society, mankind would still fall prey to age-old character flaws – they would simply manifest themselves in shiny new ways. And so it is with social media.”  

References:

  1. The Statistics Portal
  2. Social Media - Challenges for Lawyers and the Courts, Justice Steven Rares, Federal Court of Australia, 20 October 2017, Speech to Australian Young Lawyers’ Conference
  3. Law Institute of Victoria Guidelines on the Ethical Use of Social Media
  4. Legal Ethics and Social Media, A Practitioner’s Handbook, Jan Jacobitz and John Browning American Bar Association, ISBN 978-1-63425-782-4, 2017

Michael Dolan, Special Counsel Ethics, LIV Ethics


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