A lawyer’s brand and reputation is often heavily influenced by how they engage in public environments, including their use of social media. Just one ill-judged remark can have serious reputational, legal and regulatory ramifications. This blog will focus on the regulatory consequences of social media use.
Even if a lawyer’s use of social media is unconnected with their job, an allegation of misconduct can still follow. Indeed, the SRA has confirmed that most of the social media complaints it deals with arise from activity outside of legal practice.
How often is this kind of conduct reported to the SRA? In 2017, 130,000 solicitors were issued with a letter warning them about rudeness and causing offence when using social media or in letters and emails.
Paul Philip, SRA Chief Executive, says this of social media:
We expect solicitors to act at all times with integrity, including on social media and when commenting in what may seem to be a personal capacity. Solicitors cannot justify their conduct by saying that the communication was private, or they did not intend to cause offence, or that recipients were not offended”.
All lawyers should therefore think carefully before they use social media and consider what implications it could have on their career.
There are advantages to using social media. It can help professionals to develop skills and knowledge. It helps others to understand what they do and it can raise a lawyer’s or firm’s profile. So what are the dangers associated with the use of social media by law firms and individual lawyers? These are but a few:
- It is far reaching and difficult to contain
- Information can be taken out of context
- Boundaries between the personal and professional can be blurred
- Permanency - even if a post can be removed, if someone else has taken a screenshot and copied it, it may be circulated forevermore.
- More instantaneous and conversational forms of communication can lead to informality and lack the professionalism that more traditional forms of communication bring.
In addition, using a pseudonym or posting anonymously, may not guarantee that comments on social media cannot be traced back to you.
In 2017 the SRA issued a Warning Notice on Offensive Communications, which the SRA confirms it will have regard to when exercising its regulatory functions.
In the context of letters, emails, texts or social media, the warning notice explains that communications must not contain statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress. That includes communications sent in the office between colleagues and it is irrelevant that no offence was intended or caused.
That seems obvious, but taking a look at recent cases in the Solicitors Disciplinary Tribunal and the volume of complaints received by the SRA, one can understand why it felt it appropriate to issue the warning notice, to clarify to solicitors that their comments could be subject to investigation. For example, two of the most recent SDT decisions concerning social media activity involved a solicitor posting anti-Semitic remarks on Facebook (Majid Mahmood) and another using inappropriate language in correspondence to a client (Andrew Lee).
Aside from professionalism and integrity, other parts of the Code of Conduct can come into play when using social media.
The SRA confirm that if you form a relationship with a client through social media there is no requirement to cease interacting via social media. If solicitors send confidential communications to clients via social media, they need to be satisfied that client confidentiality will not be at risk and clients have consented to such communication to fulfill their obligations under Chapter 4 of the Code of Conduct.
There are also less obvious risks to using social media that lawyers need to be aware of. Some types of social media advertise the fact that you are in a particular location at a particular time (perhaps via a "geotagged" status update), and if so, a lawyer may inadvertently reveal that they act for a particular client.
Social media activity could be an efficient marketing tool for promotion of law firms’ legal services. However, Chapter 8 of the SRA Code of Conduct requires that publicity is accurate and not misleading. It also needs to be sufficiently informative so that clients can make informed choices about the services they receive. They must also ensure that they are complying with any relevant statutory requirements and voluntary codes.
It will be interesting to see if the SRA’s warning notice results in a reduction in the number of complaints and whether the measures taken by the SRA intensify as the SRA gains more experience in dealing with such matters.
A simple but practical tip for lawyers is to ‘think before you tweet’; if it has the potential to cause offence or undermine public trust in the profession, you could be at risk of disciplinary action.