Social media is now an integral part of daily life for most Australians, offering great opportunities to network, connect, share information and promote services to the wider community. Social media platforms are also constantly offering new features, changing the ways people can connect and share information. These rapid changes provide many opportunities but also introduce new risks, particularly for lawyers and law firms.
One of the most challenging risk areas for lawyers is the interaction between their ethical obligations and social media use. One of the first regulators to acknowledge these challenges was the Law Institute of Victoria, which first introduced its social media guidelines in November 2012. Since this time, Law Societies in almost every State and Territory have introduced similar guidelines highlighting the ethical issues lawyers may face with social media use. Most of these are updated regularly to ensure the guidelines keep up with the most recent developments.
For lawyers, keeping yourself informed about social media and its ethical challenges will help you to provide the best possible advice to clients, as well as ensuring you protect your practice and reputation. We take a closer look at specific risks associated with social media and how to mitigate them in this article.
New ethical risks arising from social media use
The main source of ethical issues which arise from the use of social media is the lack of awareness about how most social media activity is publicly available, not restricted to specific groups or audiences. Even if it is not publicly available in the first instance, most content shared on social media can be discovered and produced at a later date. This can be a significant issue for lawyers sharing information themselves, but lawyers’ clients or colleagues' social media activity may also have an impact on lawyers.
There are a number of recent developments in the social media landscape that pose new challenges for lawyers and their ethical obligations.
Social media advocacy
It is becoming increasingly common for lawyers to engage in advocacy online - via social media, online petitions or even crowdfunding. This type of advocacy can be a valid way for lawyers to raise awareness of a specific client’s situation or a broader social cause. However, even innocent attempts at social media advocacy can inadvertently cross the line from robust representation to unethical conduct - which means lawyers should exercise caution in this area.
Live video streaming
A new feature that has quickly become popular on prominent social media platforms is live video streaming. Compared to regular images, live stream videos allow for sharing a lot more uncensored, real-time information. The nature of live videos makes it even more critical for lawyers to be aware of the risks of "going live" on social media in both a personal and professional context.
The ethical limits of using social media to research witnesses and opponents used to be a gray area for many lawyers, but a recent decision has provided greater clarity for US lawyers. In this case, a senior lawyer in New Jersey was found to have breached the ethical conduct rules by asking his paralegal to “friend” a plaintiff to obtain information from their private Facebook page. Although accessing and viewing information on a person’s social media is not a breach in itself, the paralegal’s failure to disclose her connection to the proceedings (as instructed by the senior lawyer) was problematic. The disciplinary board found that the senior lawyer had accessed the plaintiff’s information in a way that involved dishonesty, fraud and deceit. The lawyer was issued with an admonition.
Managing firms and lawyers’ reputation on social media
Lawyers and firms should also be aware of the risks to reputation involved in using social media or how it may impact them indirectly. Unfortunately, we have no way to oversee how others use their own social media platforms. It is important to be aware that once something is released on the internet and seen by others it can go viral, and it can be very difficult to erase any damage to the reputation of the parties involved.
A recent example highlighting this issue is the case of “Mr. D” - a lawyer working at a major insurance firm who live-streamed himself participating in the breach of the US Capitol building in January 2021. When the video went viral, both Mr D. and his employer suffered damage to their reputations. Mr. D is now facing disciplinary proceedings for potential breaches of the professional conduct rules.
Law firms also need to be aware of these issues and take some responsibility regarding how their employees are using social media and provide clear directions on this. The LIV guidelines suggest that firms create a social media policy to include instructions on what is and what isn’t recommended for posting on social media platforms and to also instruct the employees not to post anything on personal channels which may suggest it comes from the firm or represents the firm’s views. The Queensland Law Society and The Law Society of Western Australia have similar guidelines designed to help lawyers and law firms navigate this area.
Practical Tips to Mitigate Risks Associated to Social Media Use
- Build a social media policy for your firm and employees
- Educate your clients on best practices
- Secure and limit access to your firm’s social accounts
- Develop guidelines on how to deal with social media crisis
Mitigating the ethical challenges caused by social media
Although there are the ethical risks associated with social media usage, these forms of online networking and communication are now an integral part of our society, making it impossible to opt out. Ignorance is definitely not bliss in this case, which is why lawyers and firms need to educate themselves on the ethical implications of their social media usage both individually and for their firms.
To get practical guidance on how lawyers can effectively manage social media use as well as avoid ethical transgressions in the digital space, check out our interactive legal CPD courses related to Media and Technology or read more about our course Virtue and the Virtual: Introduction to Legal Ethics and Social Media.
This article was originally published in March 2014 and has been completely updated for accuracy and comprehensiveness.