Social media has been defined as “websites and applications that enable users to create and share content or to participate in social networking” and is everchanging and expanding. Solicitors must therefore adapt to using social media within their profession and make use of the benefits which it can offer. Some of the main uses of social media within law firms are to advertise, communicate with clients and to find evidence for trials. However, when using social media, solicitors must appreciate that multiple ethical dilemmas can arise. These dilemmas often occur by virtue of the SRA Code of Conduct as through interacting online, solicitors are often at risk of breaching the Principles, Outcomes (O) and Indicative Behaviours of the code. The Legal Services Act 2007 outlines similar principles in S1(3) and the SRA also released a warning notice following concerns about offensive behaviour online, stressing how important it is to adhere to such principles.
This issue of ethical dilemmas within social media usage is nonetheless a wide one with dilemmas arising between solicitors and clients, solicitors and court and solicitors and third parties, often with such dilemmas linking between each other. Therefore, this essay will only focus on 3 key ethical dilemmas relating to confidentiality, distinguishing between personal and professional usage and giving legal advice.
Confidentiality
The issue of confidentiality can be easily overlooked, and possibly taken less seriously, when operating in an online environment. Solicitors are faced with the dilemma of using social media in order to share important updates and changes to the law online but in doing so, breaching the confidentiality of the client they are acting for. This has the ability to breach principle 2: to act with integrity and 4: to act in the best interests of clients, solicitors should honour the trust of their clients when dealing with their matters and not divulge this information without their consent. Bennett also stresses that the responsibility falls on lawyers to ensure that any paraprofessionals and administrative staff who use social media on their behalf are made fully aware of the limits on confidentiality.
Chapter 4 of the SRA code of conduct, Confidentiality and Disclosure, emphasises that solicitors should “keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents” and also states that they must make “sure that where your duty of confidentiality to one client comes into conflict with your duty of disclosure to another client, your duty of confidentiality takes precedence”.
Detailing about cases can breach confidentiality as even a post that hides the identity of a client and recounts only public details of a trial still might reveal confidential information. Alongside posting updates for the benefits of the public, there are various other ways in which a solicitor could breach lawyer-client confidentiality. An example of this could be through giving opinions on outcomes of cases and through blogging. Infringements of confidentiality can also happen more inadvertently for example, making a friends list or list of contacts public on a networking site can be seen as disclosing confidential information. This is because a private lawyer-client relationship is then available for everyone to see which may lead to members of the public inferring private information about that client. If the solicitor specialises in a certain area and the client’s ‘friends’ see they are connected on social media, they may assume the client is seeking legal advice in that area. The Law Society’s Social media practice note also highlights this point stating that ‘connecting with a client’ is an acknowledgement of a link with them and thus, infringing upon chapter 4 outcomes.
Generally, although there are benefits of sharing information online such as to help solve criminal cases or for public safety and interest, there is a limit to this and as stressed in outcome 4.3, wherever there is a duty of client confidentiality, this must always take precedence over a duty to disclose. Thus, client confidentiality is of the upmost importance and often links in with the other dilemmas which will be discussed in this essay.
Professional and personal usage
As solicitors work from home as well as in the office, this can lead to an overlap between their personal and professional lives which in turn can affect the boundaries between their personal and professional social media usage. This poses an ethical dilemma with relation to whether solicitors should post work related content on their personal account or if this should solely be done on their professional account, especially as some solicitors will not appreciate that there is a distinction to be had between these two forms of use.
One element solicitors must be aware of is exactly when a solicitor-client relationship is formed, as online communication can increase the ease in which potential clients lead to established relationships. For example, if a solicitor replies to an individual’s question on a personal page and the individual confirms they will conform with the response but it is later found the solicitor had given incorrect advice, this could be viewed as an established relationship. This would in turn mean the solicitor is obligated to treat the online individual as a client and adhere to the SRA code of conduct. Therefore, this could cause problems and the solicitor must be careful when engaging in such activities online and should only do so on professional accounts when they are aware there is already an established solicitor-client relationship.
Outcome 8.1 states that publicity should be accurate, not misleading and not diminish the trust the public places in you and in the provision of legal services therefore solicitors should be wary about posting their own opinions and views on their personal or professional accounts. As solicitors have a duty to the general public to keep them informed and up to date, their opinions may be taken as fact which could be misleading and thus, have implications with the rule of law. Posting opinions online could further lead to problems with upholding the rule of law with regard to affecting a defendant’s right to a fair trial. This is because posting views or discussing confidential details of a case could act as pretrial publicity and possibly influence jury decision making.
One of the biggest considerations regarding this dilemma is whether the reputation of the solicitor is at risk. Principle 6: to behave in a way that maintains the trust of public places in you and in the provision of legal services combined with principle 2: to act with integrity, emphasises the importance of solicitors upholding a professional reputation and posting their own opinions online may jeopardise this. Mark Lewis, a solicitor, was fined £2,500 after acting contrary to these principles when he was found to have posted a series of offensive tweets and Facebook comments online including a post reading “Happy to celebrate your death too. I have not got time for your hideous evil.” In a more severe case, Majid Mahmood was fined £25,000 and suspended for 12 months after posting anti-Semitic, offensive and inappropriate posts on Facebook. The Solicitors Disciplinary Tribunal referred to the case of Bolton v The Law Society when justifying their decision which stated that the most fundamental purpose of sanction of all is to “maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing may be trusted to the ends of the earth…”. Therefore, the SDT believed that Mahmood had breached principles 2 and 6 and damaged the reputation of solicitors.
These cases demonstrate how comments online have the ability to reduce all public trust in a solicitor and that the consequences can be severe as once a solicitor has been suspended, it is unlikely they will be able to rebuild a career in the legal profession again. Generally, there should be a distinction between personal and professional accounts with all work-related matters going through the professional or company accounts. However, solicitors should always take care when responding to negative reviews and posting their own views online as even if this is on their personal account, inappropriate behaviour could still result in consequences.
Legal advice
Social media allows for solicitors to give advice easily and in a more timely manner than through the usual means of meetings or emails/letters. Solicitors are able to quickly respond to questions online however, this also poses several issues. Principle 5 states that solicitors must provide a proper standard of service to their clients and O 1.5, this should be in a timely manner and take account of client’s needs and circumstances. Although advice can be given quickly, this may mean that the advice given is not properly considered before it is given and therefore may not be to a proper standard of service. Further relating to principle 5, when connecting with clients online for example becoming ‘Facebook friends’ it is important for solicitors to consider whether or not this will impact on their ability to provide a proper standard of service to their clients.
Principle 1: to uphold the rule of law and proper administration of justice, is arguably one of the most important principles for governing the way in which solicitors act. With relation to social media, it is important that when solicitors use networking sites to interact with clients or post advice to their pages, they do this in a way which adheres to this principle. In upholding the rule of law, this includes ensuring there is equal access to justice which is also related to Principle 9: working in a way which encourages equality of opportunity and respect for diversity. This may pose an ethical dilemma with regards to whether legal advice should be administered via social media at all. This is because there are large differences in the way in which social media is used depending on the demographic for example, older generations are less familiar with social media and so legal advice administered in this way is less accessible than it would be for a millennial. This may also be the case for those who are from poorer backgrounds and don’t have the means of accessing social media sites and thus the opportunity to communicate with solicitors through these means and access information. Therefore, this raises issue with the rule of law as certain groups may be at a disadvantage when accessing justice or information about justice.
Giving advice also has implications with Chapter 4 and the matter of confidentiality. When posting advice online, solicitors must be careful that they only post general comments and avoid giving fact specific legal advice which could potentially leak confidential information and also could imply a lawyer-client relationship.
Overall regarding the dilemma of advising over social media, there are many benefits including not being limited geographically to where the solicitor can give information and being able to respond to clients quickly. Solicitors must however be careful not to overstep the mark and ensure they always provide a proper standard of service and adhere to the rule of law.
Conclusion
In conclusion, solicitors must take seriously the ethical dilemmas presented through the use of social media in order to ensure they are maintaining the ethical standards of the Code of Conduct. From the above dilemmas considered, it seems that solicitors are most at risk of breaching their duty of confidentiality, which Larry Doyle agrees with concluding that “attorneys should proceed with caution when using client information in social media postings and should, ideally, obtain the consent of the client or former client prior to posting potential confidential information.”
A helpful way for solicitors to think about being ethical online could be for them to consider the fact that the same professional and ethical obligations apply online as in real life. Overall, although maintaining high ethical standards should be a priority of law firms as a whole, each solicitor is nonetheless responsible for upholding their own ethical standards and preserving their reputation.