Social media risks for lawyers

Social media is a powerful tool for lawyers to showcase their expertise, develop their business and build their profile. But participating in social media also carries significant risks of which lawyers need to be aware.

We have all read horror stories of lawyers and other professionals finding their careers and lives thrown into turmoil thanks to some intemperate comment or off-colour joke on social media. It is easy to assume that these people are just stupid or careless – and sometimes they are - but more often, they are otherwise intelligent and sensible people who make a small mistake which turns into a big one.

Below we consider some of the potential pitfalls of a hastily written social media post.

Client confidentiality

Lawyers have a duty to hold all information concerning the business affairs of their clients in strict confidence. We all know not to discuss our matters in lifts or at restaurant tables. These obligations apply equally to social media and other online platforms.

While most lawyers would not intentionally disclose details about a client, a matter or a dispute, there is still a risk of unintentionally revealing details through general discussions about recent cases or work. The fact that you did not expressly name your firm or your client in a social media comment does not guarantee anonymity. It is important to remember that your audience could review your entire social media history and piece together details of your firm and your clients from comments, geotags, photos and contacts. The only safe approach is to avoid discussing matters online altogether.

In 2010, a public defence lawyer in Illinois was dismissed and suspending from practising for 60 days when it was discovered that she had been blogging about her cases and clients. She posted under a pseudonym, and referred to her clients only by their first names, but it was still possible to identify her and therefore her clients. In her blog, she discussed her client’s crimes and drug use, as well as complaining about and insulting several judges.

Contempt of court

Discussing the details of pending or current legal proceedings on social media can constitute contempt of court. Publications may be in contempt of court if they are likely to prejudice the fair conduct of proceedings, prejudge issues which are still to be considered by the court, scandalise or lower the authority of the court or breach an order prohibiting publication of particular information. A social media post which asserted that an accused was guilty or innocent, contained details of an accused’s criminal record or attacked the character or impartiality of a judge could be in contempt of court.

Last year in Australia, 36 organisations and individuals were charged with breaching suppression orders relating to the criminal trial of Cardinal George Pell. The judge issued a suppression order over the reporting of Pell’s trial, as Pell was the defendant in another pending trial. While traditional Australian media outlets generally complied with the order, a number of online media outlets and individuals on social media did not.

Professional conduct

A person’s conduct on social media may also be taken into account in determining whether they may be admitted or remain as a solicitor or barrister. Social media posts may be taken into account in assessing a person’s character, or may constitute professional misconduct.

While the requirements for admission and professional conduct vary from jurisdiction to jurisdiction, social media posts which may cause issues in this regard might include anything which calls into question the person’s honesty, integrity or candour, or which indicate a lack of regard for the law. Posts which describe past dishonest or criminal conduct may also be relevant.

Given that most social media posts are made in one’s personal capacity, it is an interesting question as to whether social media posts should be considered relevant to questions of professional conduct. In 2017, the UK Solicitors Disciplinary Tribunal suspended a criminal defence lawyer from practice for 12 months over anti-Semitic comments he made on his personal Facebook account. The Tribunal held that the comments caused “offence to the public to the detriment of the collective reputation of the profession”. It considered the argument that the comments were made on a personal page, but considered that “being a solicitor was not a feature of one’s being that one could switch on and off as one chose”.

Employment

Aside from questions of professional conduct, it is clear that employers are increasingly using social media posts as a basis to reject employment applicants and dismiss employees. While employment law varies widely from country to country, employment contracts commonly prohibit any conduct that would bring the employer into disrepute or would adversely affect the employer’s business. When a controversial social media post generates outrage, it is quite common for the crowd to identify and direct their outrage towards the poster’s employer.

Defamation

Defamation on social media is much like any other form of publication, except that the nature and reach of social media makes it much easier to defame someone without necessarily intending to do so. Social media has a large audience, meaning that a defamatory comments spread quickly. While it is possible to delete a post, it is common for people to continue to share screenshots, even after a controversial post is taken down. The international nature of the audience also means that you may be exposed to liability in countries which have more generous defamation laws than your home jurisdiction.

Providing legal advice

It is not uncommon for users to ask legal questions on social media, and it is tempting to respond to questions, particularly if it is within your area of expertise. However, this is not generally a good idea. You will rarely know enough about the person’s circumstances to provide competent advice. They could be in another jurisdiction in which you are not qualified or licensed to practice. If your advice is wrong or incomplete, they could make a claim against you or your firm for negligence. Instead of responding to questions online, invite the person to contact you professionally to obtain proper advice. When publishing articles and blog posts online, it is important to include the same disclaimers as you would include in a marketing brochure.

Comment

On social media, sharing is actively encouraged and confidentiality and privacy are discouraged. The sheer size of the audience encourages us to be the funniest, the most interesting, or the most shocking in order to be noticed. Anonymity and the need for brevity makes conversations intemperate, with people typing things they ordinarily wouldn’t dream of saying in person. Sarcasm and irony gets lost in the limitations of the medium. Any comment or image can unexpectedly go viral, and end up being seen and judged by an audience you never expected. All of this makes social media a place where it is easy to make mistakes and difficult to delete them.

Read other items in London Market Brief - January 2020

Related item: Defamation law in the age of social media