Previously, this blogger has discussed here the Law Society’s enormous task of regulating online social networking by Advocates. In a recent notice to its membership, the Law Society of Kenya (LSK) announced that it is in the process of developing a comprehensive code of ethics and conduct for Advocates.
In this regard, it is submitted that this proposed Comprehensive Code of Ethics and Conduct for Advocates ought to address issues surrounding Advocates and Firms of Advocates interested in using, or currently using social media. The same ethical obligations that Advocates adhere to professionally also apply to conduct in an online environment.
Social media is defined as websites and applications that enable users to create and share content or to participate in social networking. Social media is an increasingly popular and growing area. As such, it is important for the legal profession to keep up to date with developments in social media which present real opportunities if harnessed effectively.
Social media are web-based and mobile technologies that turn communication into active dialogue. There are many different types of social media channels, which attract specific audiences for different purposes. These include:
– Forums and comment spaces on information-based websites, for example BBC Have Your Say
– Social networking websites such as Facebook and LinkedIn
– Video and photo sharing websites such as Flickr, Instagram and YouTube
– Weblogs, including corporate and personal blogs
– Micro-blogging sites such as Twitter and Tumblr
– Forums and discussion boards such as Yahoo! Groups or Google Groups
– Online wikis that allow collaborative information sharing such as Wikipedia
– Any other websites that allow individual users or companies to publishing or share content with other users
The growth of the use of social media by clients may result in a corresponding expectation that the legal profession should also embrace it as part of its working practices. Social media can offer many professional and personal benefits: commercial benefits arise from the ability to market products and materials as well as to communicate with a wide and/or targeted audience.
For Advocates, social media activity is beneficial for engaging with clients and other professionals, for example through direct and immediate feedback from those who have used legal services, and can be used to allow greater access to legal information and resources. It also provides greater opportunities for professional networking, and enables geographical barriers to be broken down, for example setting up a profile on LinkedIn, an internationally recognised social media site, facilitates global access to an Advocate’s profile. Finally, it can be used to debate, share opinions and share experiences by ‘posting’ or commenting in public spaces.
In addition to the benefits, it is important that there is an awareness of the potential risks involved. One of the fundamental considerations that those participating in social media activity should take into account is the potential blurring of the boundaries between personal and professional use, and the importance of recognising that the same ethical obligations apply to professional conduct in an online environment.
The increased use of mobile devices (especially smartphones) which provide access to social media accentuates many of those risks. For instance, by easily facilitating instantaneous responses.
1. Client-Advocate Relationships
Even if an Advocate does not have a relationship with clients via social media, he/she should take account of the fact that his/her presence on social media channels like weblogs and micro-blogging sites may inadvertently impact on his/her professional obligations towards his/her clients.
For example: If an Advocate comments on Twitter that he/she is in a certain location at a certain time, he/she may unintentionally disclose that he/she is working with a certain client and breach confidentiality and disclosure.
Unlike other more traditional forms of communication social media enables professionals, both nationally and internationally, to more easily interact with each other. However, social media allows Advocates to post comments or opinions about their clients, their cases and other Advocates. In doing so, Advocates may be breaching established rules on client care, confidentiality, conflicts of interests and publicity.
For example: An Advocate may be engaged in a general discussion about access to justice issues and, while posting a comment about his/her previous experiences, disclose information about a previous case he/she has worked on, thus breaching client confidentiality.
When thinking about whether to post comments and opinions of this nature Advocates should take into account that, even if you do not contravene the rules of confidentiality, conflict of interests and publicity.
integrity is central to an Advocate’s good standing and must characterise all professional dealings. It is important for Advocates to think about how their, or their practice’s, image may be affected by any comments made on social media and the potential impact this may have on their professional standing.
For example: An Advocate may be posting a comment about another legal professional on a social media site and intends to send the comment to one person but in fact responds to everyone connected to that social media site, so thus making an opinion public when not intended.
Advocates should also take account of the fact that posting comments and opinions of this nature might affect public trust and confidence in the legal profession.
One misplaced comment or opinion from an Advocate may not only damage that individual’s reputation (and their fitness or propriety as a regulated professional) but could reflect negatively on the legal profession more generally.
For example: An Advocate may make an anonymous comment about a client or case of a personal nature on a social media site which may be picked up by the media and reported on.
2. Personal vs Professional Use
Social networking sites are used both personally and professionally. It is often not clear where personal and professional boundaries lie and when your professional obligations start and end.
It may also be difficult at times to distinguish casual or informal interactions from more formal communication.
Advocates must give proper consideration to the fact that the same professional ethical obligations apply to their conduct in ‘online’ and ‘offline’ environments. It is important that personal and professional uses are not confused, and the most appropriate social media channel is selected for your activity.
Even when Advocates are using social media channels for personal use, they should consider whether they will be associated with activities which may be visible online and which, in the future, could be viewed by other professionals or clients.
Advocates should be aware that information they share with contacts or friends online, or information posted about them by contacts or friends, may be accessible to a much wider audience than is intended.
3. Use of Privacy Settings
Advocates intending to use any social networking site should review that site’s privacy settings to enable them to control, and put restrictions on, who is able to access their information.
However, Advocates should be aware that by adopting privacy settings this does not necessarily mean that the information posted on social media sites will be protected. Some sites are totally open to the public.
Both Twitter and Facebook have privacy settings and offer an explanation of how the privacy settings work. However, the default privacy settings for both Twitter and Facebook allow some information to be shared beyond an individual’s contacts. As such, Advocates as the users are responsible for actively adjusting the privacy settings of their account.
4. Logging out and Password Security
Given the wide-reaching and impactful nature of social media, it is important for Advocates to ensure that the security measures protecting access to their accounts are properly safeguarded – any client or member of the public will presume that messages from the Advocates’ accounts properly represent the Advocates even if the Advocates have delegated use or maintenance of their account.
Advocates must always ensure that they log out of social media sites, particularly if they share a machine with other colleagues. If an Advocate remains logged in his/her account can be viewed by another user, even if machine is turned off or the browser is closed.
5. Control over Information
Advocates should consider how information on social media channels is used and by whom. The speed at which information can be circulated, and the proliferation of that information, is something over which Advocates and their practices will have little control. Similarly, even though Advocates may attempt to remove any posted content, it is possible for others to take and retain screenshots of that content, and thereafter make it available.
Although much of the information on social media sites will be public, some of it will not be (either as a result of privacy settings or because it is only available to selected users). Advocates should consider that information on social media sites could be produced as evidence by either side in litigation.
7. Accuracy and presence on multiple media/channels
Advocates should consider how they will maintain the accuracy of information on the social media sites. Advocates have a responsibility not to mislead or misinform (potential) clients and third parties.