Beware of social media pitfalls

January 27th, 2016
x
Bookmark
From left: Senior Legal Adviser at the IBA Head Office and Chairperson of IBA Social Media Working Group, Anurag Bana; Senior Manager at Legal Education and Development (LEAD), Ogilvie Ramoshaba; Professor of intellectual property law at University of South Africa (Unisa), member of the National Cybersecurity Advisory Council, attorney and notary, Tana Pistorius; Chief Executive Officer of the Law Society of South Africa (LSSA) and Director at LEAD, Nic Swart; Facilitator at the LSSA and LEAD, Jeanne-Mari Retief; attorney and senior lecturer at Unisa, Freddy Mnyongani; Chairperson of IBA Multi-disciplinary Practices Committee, Co-chairperson of American Bar Association International Law Section Ethics Committee and IBA Advisory Board council member of Section on Public and Professional Interest, Steven Richman; and Co-chairperson of the LSSA Richard Scott.

From left: Senior Legal Adviser at the IBA Head Office and Chairperson of IBA Social Media Working Group, Anurag Bana; Senior Manager at Legal Education and Development (LEAD), Ogilvie Ramoshaba; Professor of intellectual property law at University of South Africa (Unisa), member of the National Cybersecurity Advisory Council, attorney and notary, Tana Pistorius; Chief Executive Officer of the Law Society of South Africa (LSSA) and
Director at LEAD, Nic Swart; Facilitator at the LSSA and LEAD, Jeanne-Mari Retief; attorney and senior lecturer at Unisa, Freddy Mnyongani; Chairperson of IBA Multi-disciplinary Practices Committee, Co-chairperson of American Bar Association International Law Section Ethics Committee and IBA Advisory Board council member of Section on Public and Professional Interest, Steven Richman; and Co-chairperson of the LSSA Richard Scott.

By Mapula Thebe

The Law Society of South Africa (LSSA) in conjunction with the International Bar Association (IBA) held a symposium on 16 November 2015 in Johannesburg. The purpose of the symposium was for young lawyers to engage with international and local speakers on the new frontiers of legal ethics and their relevance in practice to social media, globalisation and the new business of law.

In his welcome address, Co-chairperson of the LSSA, Richard Scott, noted that the legal profession is expected to hold high standards of conduct when dealing with their clients especially because the profession deals with highly confidential information. ‘Attorneys are expected to carry out instructions with due diligence and integrity. This is a duty we owe both our clients and the courts. We should always remain constant and ensure that we maintain high standards of ethical conduct,’ he added.

Attorney and LSSA representative to the IBA Council, Tshepo Shabangu, remarked that this was the opportune time to have such a discussion in South Africa as it is no longer ‘business as usual’. She said that one of the reasons for this was the rapid speed of globalisation and the effect social media has had on society. ‘Attorneys need to adapt but be cautious of the ethical considerations surrounding social media. … Social media can be used to advance business but this should be done in an ethical manner,’ she said.

Ethics in the globalised legal landscape

Chairperson of IBA Multi-disciplinary Practices Committee, Co-chairperson of American Bar Association International Law Section Ethics Committee and IBA Advisory Board council member of Section on Public and Professional Interest, Steven Richman, spoke on ethics in the globalised legal landscape. He said that ethics is not the same as morality but rather rules of professional conduct. ‘As a lawyer, ethics tell you how to conduct yourself with your client. Lawyers have an obligation to make sure they know what they are doing. In the United States (US), lawyers have an obligation to the IBA General Principles for the Legal Profession. Lawyers have to show confidence and diligence in their work as this impacts on costs to the client,’ he added.

Speaking on multi-national firms, Mr Richman said: ‘One of the issues when dealing with ethics, is the rise of the multi-national firms. What do they mean to the practice of law? For example in the US, lawyers cannot practice law in the states they are not admitted in. This is a big issue that is being dealt with. How do you apportion boundaries in todays’ world?’

Mr Richman said that another developing issue in the practice of law is the notion of billing and how to engage with clients on this issue. ‘Lawyers need to be sensitive to the fact that they deal with different kinds of clients. Obviously all bills must be reasonable, but what does that mean? It means that you have to engage with your client and explain to them why you bill a certain way, let them know about the number of years you have in practice, the time it will take to complete the matter and the going rate in your area. But also note that you may be faced with an unreasonable client who can pose a challenge, so how can you solve this? An engagement letter may assist in such a situation,’ he said.

Mr Richman advised the young attorneys present at the symposium to refer to the rules of ethical conduct in instances when senior attorneys ask them to perform duties they are not comfortable with.

LSSA council member and chairperson of LSSA Ethics Committee, Krish Govender, began his address by saying that ethics and morality are always an issue. ‘We have to link ethics to justice. If there is no justice in the world, nothing good will come of it. If you are going to be a good lawyer you will not find it easy to practice. There are some lawyers who are greedy and are only interested in getting rich quickly. Lawyers also have to be good and descent people. … In todays fast paced world people are always tempted to say things too quickly and take rash decisions. Let me give one of “Krish’s golden rules”, don’t respond immediately,’ he said.

LSSA council member and Chairperson of LSSA Ethics Committee, Krish Govender, spoke on ethics and morality.

LSSA council member and Chairperson of LSSA Ethics Committee, Krish Govender, spoke on ethics and morality.

Speaking about the business of law, Mr Govender said that today law is about making profit. Adding that: ‘In the past law used to be a calling, we have moved away from that notion. … A good lawyer that wants to protect the indigent and has a sense of justice is always a poor lawyer, but he or she sleeps well at night.’

Tips for lawyers – ethics and social media

Senior Legal Adviser at the IBA Head Office and chairperson of IBA Social Media Working Group, Anurag Bana, noted that common sense is no longer common when it comes to social media. Adding that lawyers tend to take this for granted. He said that in 2011, the IBA conducted a survey on social media with law societies and Bar associations across the world, which the LSSA also responded to. One of the questions that was asked in the survey was whether social media posed as a challenge to the practice of law and the majority of Bar associations and law societies responded in the positive. ‘However, the respondents also noted that the advantages of social media outweighed the disadvantages. 70% of the respondents said that it was acceptable for lawyers and judges to be contacts, while 90% said that it was unacceptable to post on cases that they were working on. The majority of respondents also stated that it was fine for journalists to posts on proceedings of courts,’ he said.

Attorney and senior lecturer at University of South Africa (Unisa), Freddy Mnyongani, said that social media has invaded our lives and made a high impact on our lives. ‘In the field of ethical discourse there is a debate on how far should our personal lives impact on our professional lives? This debate has been resuscitated by social media. The LSSA guidelines on the use of Internet-based technologies in legal practice (www.lssa.org.za) give lawyers guidance on how to use social media. But as the title suggests, they are just guidelines, there is evolvement every day and there is no way the guidelines can keep up. The fact is, social media is here to stay, we can choose to ignore it or ride on the bandwagon. How we use it may have ramifications, we all live in glass houses and we must behave accordingly,’ he said.

Mr Mnyongani asked: ‘Given the fact that social media is a private space, why should the profession be interested in who I am friends with? If I am friends with a judge who is presiding on a matter I am working on, should the judge recuse himself or herself? How far do we go with advertising our services? Can we give legal opinion or serve court documents on social media? There is a need for diligence when using social media. Of course the profession is interested in what you post as a lawyer. Whether you use it ethically is in your hands.’

Professor of intellectual property law at Unisa, member of the National Cybersecurity Advisory Council, attorney and notary, Tana Pistorius reminded delegates of the relationship between social media and commerce. Adding that on social media there is no line between private and personal life. ‘When posting on social media, the rules of data messages apply. Posts on social media do have legal effect,’ she added.

Prof Pistorius went on to cite cases where data messages had legal effect. Such as Sihlali v SA Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC), where an SMS was accepted as a letter of resignation. Other cases she mentioned were:

  • Spring Forest Trading v Wilberry (SCA) (unreported case no 725/13, 21-11-2014) (Cachalia JA) (see 2015 (Jan/Feb) DR 57;
  • Jafta v Ezemvelo KZN Wildlife [2008] 10 BLLR 954 (LC); and
  • CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD) (see 2012 (Oct) DR 47).

Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) editor of De Rebus.

This article was first published in De Rebus in 2016 (Jan/Feb) DR 10.

X