In this era of Internet and widespread use of social media tools like Facebook, Twitter, Linkedin, Youtube etc, legal professionals are also increasingly using these media in order to express their views and ideas to public. Legal professionals being part of society are not immune to the developments in the field of technology, but the peculiar position in which they are placed put them in a special place in the use of social media compared to other members of society.
There is something admittedly odd about legal fraternity on social media. The stereotypical legal professional is stuffy, orthodox, technologically challenged, and all things contrary to what social media stand for. Social media, in contrast, is informal, tech-driven, and brimming over with quirkiness and individuality.
In India, there has been not much discussions on the use of social media by legal professionals due to two major reasons, one, there are not many legal professionals actively interacting in the social media, unlike politicians, journalists and celebrities and secondly, even the few who have been active on social media are yet to court any controversy to generate discussions on the ethics of social media usage by legal professionals.
However, a recent news item in Times of India prompted this article. The newspaper reported that Madras High Court has restrained two lawyers from publishing or circulating any message or material scandalising the judiciary and everyone part of the institution on any social media platform including WhatsApp, Facebook, Twitter, group messages and YouTube. It is reported that the two lawyers are already serving a suspension, after being prohibited by Bar Council of Tamil Nadu and Puducherry from appearing before any court or tribunal for having made derogatory statements against judges and women advocates in the social media. It is also understood that Madras High Court has taken suo motu Contempt proceeding against these two lawyers.
The world of social media is rapidly changing and best practices will continue to evolve to keep pace with such developments. In fact, social media ethics and use of social media may differ due to varying cultures, different social relations, customs and historical approaches.
Because social media communications are often not just directed at a single person but at a large group of people, or even the entire Internet community, Bar council rules on advertising and other ethical rules must be considered when a lawyer uses social media. It is not always readily apparent whether a lawyers’ social media communications may constitute advertising. Similarly, privileged or confidential information may be unintentionally divulged beyond the intended recipient when a lawyer communicates to a group using social media. Lawyers also must be cognizant when a social media communication might create an unintended fiduciary relationship. There are also ethical obligations with regard to a lawyer advising clients about their social media posts and the removal or deletion of them, especially if such posts are subject to litigation or confidentiality clauses and regulatory preservation obligations.
Principles of social media conduct by International Bar Association
The International Bar Association has in 2014 adopted the principles of social media conduct for its members, which is reproduced below and can be taken as guiding principle for legal professionals using social media:
A set of six principles has been outlined to combat the issues that social media can pose to the legal profession. These six guidelines can also be adapted by other professionals and even individuals using social media.
Professional independence is integral to legal practice. It is important that bar associations and regulatory bodies ensure that their lawyers are not subject to external pressures so that they are impartial in providing advice and representation. Social media creates a context in which lawyers may form visible links to clients, judges and other lawyers. Before entering into an online ‘relationship’, lawyers should reflect upon the professional implications of being linked publicly. Comments and content posted online ought to project the same professional independence and the appearance of independence that is required in practice.
Legal professionals are expected to maintain the highest standards of integrity in all dealings, including those conducted over social media. Bar associations and regulatory bodies should consider encouraging their members to think about the impact social media could have on a lawyer’s professional reputation. In addition, online activity is hard to control. For example, where something is posted that is damaging to a practitioner’s reputation goes ‘viral’ over the internet, it may be difficult to subsequently repair the harm to the practitioner’s professional standing and reputation. Comments or content that are unprofessional or unethical could damage public confidence, even if they were originally made in a ‘private’ context.
To understand use: Most social media websites have specific privacy settings that apply to users of the website. Bar associations and regulatory bodies should encourage their members to assess these privacy settings of any social media account, be it personal and/or professional. It should be noted that adopting privacy settings does not necessarily mean the information posted on the social media sites will be protected. In addition, legal professionals should be reminded to maintain responsible use of social media based on a full understanding of the implications (noting that information published on social media is not easily removable) and, at the same time, monitor and regularly review their use of and content on social media. If any mistakes arise, these should be immediately rectified. Legal professionals should be reminded that information on social media sites could be produced by either side in litigation.
To clarify use: When lawyers present themselves online as legal professionals, it is possible that their statements may be relied upon as legal advice and for retainers to be inadvertently created. In this case, individual lawyers or law firms could assume liability to unknown third parties and/or engage in the unauthorised practice of law in jurisdictions where the lawyer is not licensed to practise. Bar associations and regulatory bodies should remind their members about the ramifications of posting content online, and they should encourage lawyers to clarify their capacity and whether the content is intended to be relied upon as professional advice. More specifically, bar associations and regulatory bodies should call attention to the relevant rules of professional conduct in their respective jurisdictions.
To use appropriately: Bar associations and regulatory bodies should remind lawyers to consider whether a particular medium is an appropriate forum for their intended output based on its popular use and the likely audience. As with all printed text, the tone is difficult to convey online. Social media provides a platform for quick, short messages to be disseminated widely. What was intended to be humorous or frivolous may be received as a serious declaration. Bar associations and regulatory bodies should remind legal practitioners to consider the context, the potential audience and whether the comment is clear and unambiguous. As a general guidance, legal practitioners ought not to do or say something online that they would not do or say in front of a crowd. Lawyers should also be reminded that inappropriate use of social media can also lead to exposure to discrimination, harassment and invasion of privacy claims as well as exposure to claims for defamation, libel and other torts.
To adhere to practice promotion, advertising and solicitation rules, codes and legislation in use: Practice promotion, advertising and solicitation rules, codes and legislation may affect social media use. Where there are such restrictions applicable, these must be adhered to online.
Conflicts of interest: Conflicts of interest are not always limited to party representation. Issue conflicts may also arise and create political, if not ethical, issues with clients. Lawyers must be sensitive to postings and use of social media that may reveal a position that is contrary to that taken by their clients and may impact on particular matters.
It is important that lawyers can be trusted with private and confidential information, and that the public perceives this. Bar associations and regulatory bodies should remind lawyers that social media platforms are not appropriate for dealing with client data or other confidential information unless they are fully satisfied that they can protect such data in accordance with their professional, ethical and legal obligations. In addition, bar associations and regulatory bodies should encourage lawyers to consider client confidentiality more generally when using social media. For example, information that locates a lawyer geographically and temporally could be used to show professional involvement with a client who does not wish to publicise that he or she is seeking legal advice. Even the use of hypothetical questions or anonymous fact patterns may inadvertently reveal confidential information. More specifically, they should call attention to the relevant rules of professional conduct in their jurisdiction.
- Maintaining public confidence
Legal practitioners should be encouraged to monitor their online and offline conduct in the same way. Restraint should be exercised so that online conduct adheres to the same standard as it would offline in order to maintain a reputation demonstrating characteristics essential to a trusted lawyer, such as independence and integrity. Statements should be true and not misleading. As with offline activity, lawyers have personal autonomy over their private affairs. The difference with online social media is that a lawyer’s life and activities may be exposed more widely to public gaze, which may have the effect of highlighting the key characteristics of the lawyer. It is essential that bar associations and regulatory bodies ensure that lawyers appreciate these key characteristics and risks when pursuing their personal social life online. In addition, because it is common to use a variety of social media, bar associations and regulatory bodies should remind lawyers to consider whether the sum total of their social media activity portrays a legal professional with whom clients can entrust their affairs.
When a legal practice engages in the use of social media, employees of the practice should be given clear guidance and instructions on their correct use. Bar associations and regulatory bodies should encourage law firms to consider how to develop clear and coherent policies and guidelines on social media use. These policies and guidelines could be incorporated in letters of employment and induction training and supplemented by regular training to educate employees on new and emerging risks in this area. Bar associations and regulatory bodies should consider appropriate rules or commentary to inform and complement existing rules.
Bar associations and regulatory bodies should specifically advocate for clear parameters by law firms on whether and how employees are allowed to use social media on the firm’s behalf or otherwise in a work related capacity. An effective social media policy will ensure that firms project a considered, consistent image online, as well as help, comply with laws and regulations pertaining to them. Moreover, if employees are permitted to contribute, bar associations and regulatory bodies should encourage law firms to suggest ways that lawyers can differentiate whether they are uploading content in a personal or work-related capacity.