By Nomfundo Manyathi

The International Bar Association (IBA) has published a report titled ‘The impact of online social networking on the legal profession and practice’, which examines the role of social media in the legal profession and assesses whether there is a need to set principles regarding its usage.

The report addresses the impact of online social networking on six groups of legal actors, namely lawyers, judges, jurors, journalists, law students and professors, and legal employers.

In the report, the IBA said that the popularity of online social networking sites and the increased usage of them by legal practitioners had become an international issue. ‘Online social networking seems to have a recurring presence in the media and in daily life. Members of the legal profession are not immune from the ripples of such a wave,’ it said. The IBA Legal Projects Team decided to survey the opinions of some of the leading bodies of the legal profession representing a multitude of legal experts. In total, 60 bar associations and law societies from 47 jurisdictions participated in the survey, including the Law Society of South Africa.

The survey contained 31 questions relating to the appropriateness of online social networking use by legal professionals, with a particular focus on judges and attorneys. Some of the important issues examined included:

• Interactions between lawyers, judges and jurors on online social networks.
• Posting of comments on these networks by lawyers, judges, jurors and journalists about one another or the cases in which they are involved.
• Effect of online communications between a lawyer and a potential or existing client on the overall notion of the lawyer/client relationship.
• Public perception of lawyers and judges and whether this is negatively affected by their use of online social networking.
• Relationship between law students and their professors and whether such is compromised by their becoming ‘friends’ on online social networks.
• Consideration by legal employers of the information found on online social networking pages in evaluating future employee candidates.
• Potential need for a training course for lawyers, judges and law students on the ethical and professional implications of online social networking.
• Potential need for local bar organisations, societies and councils, or alternatively the IBA, to intervene in this area and issue an online social media practice note.

The survey was done between May and August 2011. In the report, the IBA stated that ‘a significant number of jurisdictions declined to respond to the survey for concern of formally defining a policy on online social networking. … Others refused because online social networking had little reach or presence in their jurisdiction.’

The IBA’s major findings included:

• Over 90% of respondents found that online social networking presented a new set of challenges for the legal profession.
• Almost 70% felt that it was acceptable for lawyers and judges to have each other as contacts on online social networks.
• Over 90% considered it unacceptable for lawyers and judges to post comments or opinions about fellow lawyers, judges, parties or cases in progress on online social networks.
• While a majority of respondents found it unacceptable for lawyers, judges, and jurors to post updates about proceedings while a matter was pending before the courts for information purposes, the majority deemed the conduct acceptable for journalists.
• Over 85% deemed it acceptable for lawyers to access and use the information on online social networking profiles of the parties in a case (which forms part of the public domain) as evidence in proceedings.
• Nearly 95% from jurisdictions containing a jury system thought that, in addition to routine instructions, jurors should receive specific instructions limiting their online communications and use of online social networking sites.
• 15% felt that lawyers’ use of online social networks negatively affected the public’s confidence in the integrity and professionalism of the legal profession, while almost 40% felt that judges’ use of online social networks negatively affected the public’s confidence in the integrity and impartiality of the judiciary, thereby undermining judicial independence.
• 85% thought that law students should be informed by their law schools about the potential risks and disadvantages associated with the use of online social networking in the legal profession.
• Over 75% of respondents considered the advantages of online social networking to outweigh its disadvantages.
• 95% thought that lawyers, judges and law students could benefit from a training course that provided guidelines for the use of online social networking in the legal profession and practice.
• 80% stated that there was a need for ethical/professional codes and standards to be adapted to online social interactions affecting the legal profession and practice, as they could not be adequately applied in their current form.
• Over 90% stated that there was a need for bar associations, societies and councils, or alternatively the IBA, to issue a practice note regarding the use of online social networking sites in the legal profession and practice.

The Law Society of England and Wales was the first law society to issue a practice note on social media.

The practice note, which was issued in December, was written to facilitate an understanding of social media in the legal profession and to provide guidance in social media activity.

It states that it is important for the profession to keep abreast of the developments in social media as it ‘presents real opportunities if harnessed effectively’. The practice note further states that the increase in the use of social media by clients may result in an expectation that ‘the legal profession should also embrace it as part of its working practices’.

The note also states that the ‘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’ was one of the most important considerations when participating in social media activity.

It warns practitioners to apply the same ethical obligations they adhere to professionally and to ensure that their online activities remained in line with their code of conduct principles. The note also gives guidance on online relationships with clients, selecting the best social media channel for business, the risks involved (such as defamation, confidentiality and lack of control over information) and setting up a social media policy.

The note states that online social networking presents both advantages and disadvantages for the legal profession and practice. Its advantages include that it offers increased access to legal information and resources, presents a virtual forum for legal discussion and debate, provides direct and immediate feedback from those who have used legal services, breaks down geographical boundaries and allows for global access to one’s profile, allows for a number of advertising and marketing opportunities, permits the expansion of a lawyer’s client base and professional contacts and allows lawyers to engage with clients at relatively low cost.

Its disadvantages include a lack of privacy and a potential perception of lack of independence, as well as the risk of defamation. Confidential information may also be unintentionally disclosed.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (April) DR 8.