1.1 Who should read this Guidance Statement?
This Guidance Statement is for solicitors and and other law practice employees.
1.2 What is the issue?
The use of social media in the legal profession has been increasing exponentially for several years, as a vehicle for client engagement, marketing and profile building. In addition, individual lawyers are engaging both personally and professionally in such media, a practice which has only increased and will continue to do so over time.
However, this increased use comes with increased risks – to lawyers and clients - and solicitors will need to take steps to minimise those risks and ensure that duties in relation to the rule of law, professional independence, not bringing the profession into disrepute and confidentiality continue to be discharged.
1.3 Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.
The unique capabilities of social media have transformed the way in which solicitors interact with clients, colleagues, courts and the community, and will continue to do so. Practitioners need to be aware of the risks involved in the use of social media, and the higher standard expected of officers of the court when engaging on social media platforms (whether that engagement is in connection with their practice or is done in a personal capacity, and regardless of whether or not a pseudonym/avatar is used).1
3.1 Ethical duties apply
Due to the potential of anonymity, social media users sometimes act as if they are unregulated in their use and may feel the usual rules do not apply.
Regardless of the platform used, the jurisdiction in which it is hosted or the ability to anonymise a user’s identity, solicitors remain beholden to their ethical duties in the same way that they are in any other forum. A solicitor must not use social networking sites at any time (whether during or outside work hours) to discriminate, harass, bully or victimise employees, clients or contractors of the solicitor. Breaches of duties which occur on social media platforms or cyber-space are punishable in the same way as breaches which occur in the physical world.2
3.2 Officer of the Court
As officers of the court, solicitors have less leeway than laypeople when utilising social media. While social media generally involves a less formal and more robust level of engagement, solicitors remain officers of the court even when engaging on such platforms and should refrain from adopting a lower standard of conduct.
3.3 Reputational risk
Practitioners should bear in mind that messages and comments posted on social media platforms may remain accessible for the life of the platform, and often longer. They can be shared or screen-shotted; once posted, such comments are difficult if not impossible to control.
Colleagues, clients, potential clients and even members of the bench may become aware of comments and posts made by practitioners. The possibility for reputational damage, to a firm, individual practitioner, or indeed the profession as a whole is real and not remote.
Social media activity has no exemption from the laws of contempt or the duty to avoid bringing the profession into disrepute. Practitioners should refrain from providing any running commentary or comment on social media in relation to active files, whether before the court or otherwise.
The duty to maintain client confidentiality extends to activity on social media, and practitioners should be aware of the fact that confidentiality can be breached more easily when using social media. For lawyers, the very act of updating their status or tweeting their own or their clients’ whereabouts can result in a breach of this duty.
Prior to any social media activity, lawyers should consider whether or not they are divulging sufficient information to breach client confidentiality. For example there are seemingly innocent posts such as:
- tweeting a photo of a solicitor and client outside a magistrate’s court, on the day of the criminal court sittings, with the comment ‘great result today!’;
- a solicitor posting their joy at securing a particular client;
- a post about an important meeting, with a photo of the building in which the meeting is taking place;
- a photo of a client with a solicitor at a social event, whether or not that event is hosted by the solicitor.
Each of these scenarios could result in a breach of confidentiality, by revealing the client, the nature of the work being done or through telegraphing a client’s likely intent. While a client can authorise such disclosures by providing their informed consent beforehand, great caution is advised, especially when acting for clients who may not be able to fully comprehend or appreciate the consequences of giving consent. Photos of clients should never be posted without their express consent.
4. Ethical principles
Rules 3, 5, 9, 28 and 36 provides:
3. Paramount duty to the court and the administration of justice
3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
5. Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person ….
9.2 A solicitor may disclose confidential client information if:
9.2.1 the client expressly or impliedly authorises disclosure;
28. Public comment during current proceedings
28.1 A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.
36.1 A solicitor or principal of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not:
36.1.2 misleading or deceptive or likely to mislead or deceive;
36.1.3 offensive; or
36.1.4 prohibited by law.
It should be noted that the following additional rules may also be of relevance to practitioners:
- Rule 31 – Inadvertent disclosure
- Rule 32 – Unfounded allegations
- Rule 33 – Communication with another solicitor’s client
- Rule 34 – Dealing with other persons
- Rule 42 – Anti-discrimination and harassment.
5. Social media policy
It is imperative that all firms have a social media policy, detailing how the firm will use social media, who can post on behalf of the firm and the guidelines for staff use of social media (both professionally and privately). The policy should be expressly referenced in employment agreements with staff.
5.1 Effective policies
Any policy implemented by a law firm must provide guidance and education to staff,3 as well as effectively protect the interest of the firm if the policy is disregarded. Creating an effective policy requires more than drafting the policy and instructing staff to read it.
The case of Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber4 recognised several actions businesses could take to create robust, effective and enforceable policies:
- Ensure policies are clear and unambiguous, defining the offending conduct, the action that will be taken if they are transgressed and the legal consequences for employee and employer.
- Emphasise that the organisation takes the offending conduct very seriously and that it is unacceptable anywhere in the workplace.
- Ensure training is formal, comprehensive, and regular, making sure to go through the policy and the consequences noted above.
- Ensure training is mandatory and undertaken by all employees.
- Include an assessment process or some other method to ensure that the employees have understood the training.
- Conduct regular, formal refreshers and ensure participants understand the content.
- Review the policy regularly, update if necessary and hold specific training for the updates.
5.2 Staff use - private and professional
The courts have recognised the fact that employers have the need and the right to set limits on staff social media use under certain circumstances.5 It has also been recognised that private social media activity of staff can be taken into account when dismissing staff.6 Crucially, courts have long held that employers can be vicariously liable for the activities of employees in the course of their employment - and the scope of that term would seem to be widening.7
In view of this, social media policies should specifically address staff use of social media. While each firm will need to consider their particular circumstances, it is recommended that such policies include:
- prohibition on the posting of offensive or inappropriate material;
- prohibition on bullying via social media;
- prohibition on posting negative commentary about the workplace;8
- notation that staff are expressing a personal opinion/do not speak on behalf of the firm (especially if the profile includes their place of employment);
- a warning that anonymous posts or commentary may still fall foul of the policy and result in disciplinary action;
- a process for dealing with transgression of the policy.
5.3 Firm use
Similarly, if a firm makes the decision to use social media platforms, strict policies need to be in place to guide that use. It is recommended that a limited number of people be empowered to authorise social media posts on behalf of the firm, and that those people be senior in the firm. In addition to the prohibitions noted in 5.2 (above) and a formal process for dealing with complaints/transgressions, the policy should clarify:
- aims of the firm’s social media use;
- a review process to ensure a post is checked by someone other than the author before publication;
- what firm activities will (and will not) be acceptable for social media posts.
5.4 No contact rule and social media
While the concept of ‘friend’ on social media has a different context and meaning from the general use of the word, a solicitor’s ethical duty to refrain from contacting another solicitor’s client does not contemplate any distinction between social media contact and any other kind of contact.9 In short, ‘friending’ or otherwise linking with another solicitor’s client may be a breach of this duty, regardless of whether or not it is business networking as opposed to social interaction, or how minimal the contact may be. Solicitors should ensure that they do not connect on social media with the client of another solicitor, and may include social media contacts in conflict-checking processes.
Websites have become an integral part of a law firm’s engagement with clients and potential clients. Properly utilised websites can increase the reach of a firm and expand client base, as well improve interaction with existing clients. Practitioners should note that websites must comply with the ASCR, and the restrictions regarding advertising.10
Information on websites should be accurate and up-to-date, and reflect staff changes as soon as is reasonably practical. Practitioners should bear in mind that courts have at least been prepared to entertain the possibility that a costs agreement can be set aside if a client entered into the agreement on the basis of representations made on a firm’s website.11
In addition, if content on a practitioner’s website relies on links to information hosted elsewhere, those links should be checked with reasonable regularity, to ensure the links work and that the information referenced remains accurate and up-to-date.
6.2 Blogs/technical articles
Blog posts and technical articles should be reviewed regularly and updated if the law has changed. They should be reviewed by more than one person if possible, and most of all should be correct. Inaccurate or out-of-date information in such an article will defeat the purpose, and may result in an action for negligence or a complaint to the Legal Services Commission.
Care should also be taken in this forum in that an unintended solicitor-client relationship may also be created on social media channels where a member of the public or ‘friend’ seeks an answer to a legal or quasi-legal question which is answered by the practitioner.12
If testimonials from clients on your website are displayed, the written consent of the client should be obtained first, and all comments de-identified; firms should refrain from posting photographs of clients, and be particularly mindful of the rules relating to children involved in family law matters. Testimonials should be revisited and updated; an outdated testimonial may not have the desired effect; in addition, a testimonial given by a client who subsequently falls out with the law firm should be removed, as to maintain it may be seen as misleading.
Statements on websites as to experience, abilities and expertise must avoid hyperbole and be an accurate reflection of the ability and experience of the people referenced.13 Practitioners should be mindful of the fact that a client agreement entered into on the basis of an unjustifiable claim to expertise or ability may leave the agreement vulnerable to challenge, and may also constitute misleading and deceptive conduct.
6.5 Live feeds/client feedback
Some platforms, such as Facebook, allow for customer/client comments and feedback. It is highly recommended that firms disable such a feature, unless they are capable of appropriately moderating the page. Hosts of such pages can be held responsible for third party comments made on them. It is advisable that firms not allow unmoderated posts or comments by clients, and firms should be aware that the courts may hold them liable for defamatory or otherwise unacceptable content posted by third parties on the firm’s website.14
6.6 Social/informal content
Many firms have utilised their social media platforms to reveal the firm’s culture, social activities, charitable endeavours, etc. This can be a useful marketing tool, especially given the fact that clients often look for firms which align with their own moral stance.
Care should be taken as to how much information is shared, as clients will have different levels of comfort in this area. If photos of client events, social occasions and charitable activities are being shared, the consent of those depicted should be obtained where appropriate. Photos should also be checked for content which may breach client confidentiality, embarrass the firm or any of the staff.
7. More Information
Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor at QLS Solicitor Support Pty Ltd (QLS Ethics and Practice Centre) on 07 3842 5843 or firstname.lastname@example.org .
1 Richard Miles Esq, PC 2018/0372/D5 (The Bar Tribunals & Adjudication Service, HH Michael Topolski QC, 18 November 2019).
13 Practitioners should also be mindful of the requirements of Australian Solicitors Conduct Rules 2012 (Qld) r 36, and in particular the restrictions around claims of specialist expertise; See also the QLS note on the use of the words ‘expert’ and ‘specialist’, ‘What are the rules about advertising as a ‘specialist’ or ‘expert’?