Social media – 20 December 2011

1.  Introduction

1.1  Who should read this practice note?

All practitioners and practices interested in using, or currently using social media. This practice note may be particularly interesting to compliance officers.

1.2  What is the issue?

Social media are an increasingly popular and growing area. As such, it is important for the profession to keep up-to-date with developments in social media which present real opportunities if harnessed effectively.

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 communicate products and materials via social media and use them as marketing and advertising tools.

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 your 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 purpose of this practice note is to facilitate an understanding of social media in the profession and provide guidance to individuals and practices engaged in, or considering whether to engage in, social media activity.

1.3  Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society’s Practice Advice Service: www.lawsociety.org.uk/practiceadvice.

1.4  Terminology

Must – A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

Outside of a regulatory context, good practice for most situations in the Law Society’s view.

In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May – A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code – SRA Code of Conduct 2011

2.  What are social media?

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, LinkedIn and LegalOnRamp

• video and photo sharing websites such as Flickr and YouTube

• weblogs, including corporate and personal blogs

• micro-blogging sites such as Twitter

• 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 use simple publishing tools.

Some channels may be more appropriate for a practice’s or individual’s business needs than others, particularly in relation to social networking. For further information see section 4 Online social networking

3.  Ethical obligations

The same ethical obligations that you adhere to professionally also apply to your conduct in an online environment.

You must ensure that before you participate in social media activity, and throughout, that you adhere to the Principles in the SRA Handbook. The Principles embody the key ethical requirements and professional standards for individuals and practices who are involved in the provision of legal services.

3.1  The Principles and SRA Code of Conduct 2011

The nature of social media can present challenges to the core duties of professionals. The Principles that are the most likely to be tested when an individual is engaged in social media activity are:

Principle 2- You must act with integrity

Personal integrity is central to your role as the client’s trusted advisor and should characterise all your professional dealings with clients, the court, other lawyers and the public.

Principle 3- You must not allow your independence to be compromised

‘Independence’ means your own and your firm’s independence, and not merely your ability to give independent advice to a client. You should avoid situations which might put your independence at risk.

Principle 6- You must behave in a way that maintains the trust the public places in you and in the provision of legal services

Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but the ability of the legal profession as a whole to serve society.

In addition to these Principles, you must consider the SRA Code of Conduct 2011 (SRA Code) when you are participating in social media, specifically chapter 1 on Client care, chapter 4 on Confidentiality and disclosure, chapter 8 on Publicity and chapter 11 on Relations with third parties.

3.2  The solicitor-client relationship

3.2.1  Previous or current online relationship

If you first form a relationship with a client through social media there is no reason for you and your client to cease interracting via social media.

However, if you continue to have an online relationship with a client or form an online relationship with a client, you should consider whether you might breach any of the Principles or requirements in the SRA Code.

For example: It may be that a client contacts you via LinkedIn and you become ‘contacts’ with that client. You must take into account chapter 4 on Confidentiality and disclosure and whether simply being ‘contacts’ with a client on LinkedIn, thus acknowledging that you have a link with that client, would result in a breach of any of the outcomes in this chapter. In this situation you should also think about chapter 1 on Client care and whether contact with a client via social media may affect your obligations to provide a proper standard of service.

3.2.2  No existing online relationship

Even if you do not have a relationship with clients via social media, you should take account of the fact that your presence on social media channels like weblogs and micro-blogging sites may inadvertently impact on your professional obligations towards your clients.

For example: If you comment on Twitter that you are in a certain location at a certain time, you may unintentionally disclose that you are working with a client and breach outcome (4.1) in chapter 4 on Confidentiality and disclosure ‘you must keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents’.

3.3  Posting comments and opinions

One benefit of using social media is the ability for professionals to share their experiences and opinions, as well as to engage in debate.

Unlike other more traditional forms of communication social media enables professionals, both nationally and internationally, to more easily interact with each other.

Usually this sort of engagement will encompass current issues, affairs and developments in the legal profession.

However, individuals are also able to post comments or opinions about clients, their cases and other legal professionals. You should consider that in doing so you may be breaching the requirements on client care, confidentiality, conflicts of interests and publicity in the SRA Code, and should exercise caution in this area.

For example: You may be engaged in a general discussion about access to justice issues and, while posting a comment about your previous experiences, disclose information about a previous case you have worked on, thus breaching client confidentiality.

When thinking about whether to post comments and opinions of this nature you should take into account that, even if you do not contravene the requirements in the SRA Code in terms of confidentiality, conflict of interests and publicity, you could breach Principle 2 on acting with integrity.

Personal integrity is central to your role as a practitioner and must characterise all of your professional dealings. You should think about how your, or your practice’s, image may be affected by any comments you make and the potential impact this may have on your professional standing.

For example: You may be posting a comment about another legal professional on a social media site and intend to send the comment to one person but in fact respond to everyone connected to that social media site, so making your opinion public when you did not intend to.

You 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, hence breaching Principle 6.

One misplaced comment or opinion from a legal professional may not only damage that individual’s reputation but could reflect negatively on the legal profession more generally.

For example: You 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.

4.  Online social networking

Social networking allows users to communicate with each other by creating profiles, ‘posting’ comments and opinions, connecting or forming ‘links’ with others on the site, joining different ‘networks’ and adding ‘friends’.

4.1  Personal vs professional

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.

You must give proper consideration to the fact that the same professional ethical obligations apply to your 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 you are using social media channels for personal use, you should consider whether you will be associated with activities which may be visible online and which, in the future, could be viewed by other professionals or clients.

You should be aware that information you share with contacts or friends online, or information posted about you by contacts or friends, may be accessible to a much wider audience than is intended.

The implications of this can be varied as it has the potential to reflect both positively and negatively on you:

For example: At a job interview you may be questioned about activities that you have carried out, or comments or opinions that you have made, in the past which the potential employer has found simply by searching for your name on the internet. Either:

• you may have displayed experience which is relevant or be viewed as an advantage to the role that you are applying for, so reflecting positively on you

• you may have made a comment, or expressed an opinion, that ultimately is viewed as contrary to the values of the organisation you are applying to work for.

You should regularly review the content of your personal social media channels, which will enable you to remove any information that you feel could reflect negatively on you or you do not feel comfortable with.

You may want to take into account the fact that some social media channels are more appropriate for a practice’s or an individual’s business needs than others, and consider whether to set out certain parameters as to which channels are most appropriate for your business.

You may approve certain channels for use, but stipulate additional scrutiny where the use of other channels is proposed.

4.2  LinkedIn and Twitter

LinkedIn and Twitter are social networking sites that are widely used and recognised by professionals.

LinkedIn is a business orientated social networking site which is primarily used for professional networking. It allows users to create professional profiles, build and maintain professional contacts and is a marketing tool for businesses. It is a global network with over 120 million members.

Twitter is an online social networking and microblogging service that enables users to send and read small amounts of information called ‘Tweets’. A guide to doing business on Twitter can be found on the Twitter website.

4.3  Facebook, YouTube and Flickr

Other well known social networking channels such as Facebook, YouTube and Flickr may only have limited business use as they are more widely recognised as channels for personal use.

However, this does not mean that you should discount these channels as viable social media channels to be used professionally. For example, YouTube could be used to host a video for a business campaign.

Rather, these channels should be used with caution, for example if you make ‘friends’ with clients on Facebook, you should evaluate whether this may affect any of your ethical obligations (outlined above).

4.4  Specialist business networking sites

There is a whole range of specialist business networking sites which serve to connect and facilitate corporate relations, including Biznik and Focus. However, you should think about having systems and policies in place for the management of your firm’s social media usage, irrespective of the type of service provided by the social media site (see section 6 Setting a social media policy below).

4.5  Privacy settings

If you are intending to use any social networking site, you should review that site’s privacy settings to enable you to control, and put restrictions on, who is able to access your information.

However, you should be aware that by adopting privacy settings this does not necessarily mean that the information you post 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, you as the user are responsible for actively adjusting the privacy settings of your account.

4.6  Practices adopting social media internally

Using social media internally could be both an efficient form of communication and an effective method of learning and development.

Corporate forums or weblogs for example may drive innovation and boost employee morale.

5.  Benefits and risks of using social media

Several of the benefits and risks of engaging in social media activities have already been highlighted but set out below are some of the most significant benefits, and areas of social media activity which present the highest risk to you and your business.

5.1  Benefits

5.1.1  Profile

Engaging in social media can be used to raise the profile, and general awareness, of yourself and your practice.

It provides an opportunity for you to determine what information is available online about you and your practice, rather than relying on third parties to do this for example through news articles.

You are able to shape the messages about you and focus on the areas of your practice that you would like promote.

5.1.2  Engagement with clients

There are no quantifiable benefits of engaging in social media activities but you should bear in mind that it may be an expectation of some clients, in the future, to be able to communicate in this way.

Some clients may use social media channels, rather than email, as their main method of communication. The increased use of social media by clients could result in a corresponding expectation that these channels of communication should be available in relation to legal services.

5.1.3  Scale

The lack of geographical barriers and constraints offers those engaging in social media activities the opportunity to reach a wider audience than would otherwise have been achievable via other more traditional forms of communication.

5.1.4  Marketing/Advertising

Social media activity could be an efficient marketing tool for promotion of you/your practice’s legal services. For example an advert on a social media site has the potential to reach an extremely wide audience.

You should note that chapter 8 of the SRA Code requires that you take steps to ensure that publicity is not misleading and is sufficiently informative so that clients can make informed choices about the services they receive. You must also ensure that you are complying with any relevant statutory requirements and voluntary codes.

5.1.5  Cost

Having set up a social media channel, engaging with clients and other professionals via social media is likely to be relatively low cost. However, you will need to take the time to maintain any social media activity as an ongoing part of your business.

5.2  Risks

The use of social media amongst legal professionals is extremely varied and, as detailed in section 2 What are social media?, there are many different types of media channels for different audiences with differing purposes.

In addition to the more general issues surrounding the personal and professional boundaries of social media activity discussed above, you should also bear in mind the following specific areas of risk.

5.2.1  Defamation

The law of defamation allows persons who consider that their reputation has been, or may be harmed by statements made by others, to sue for damages or to prevent the making of those statements.

Defamation law can apply to any comments or opinions posted on social media sites. You may want to consider including this in your social media policy (outlined in section 6 below).

5.2.2  Confidentiality

As already noted, social media activity presents challenges to compliance with the requirements set out in chapter 4 on Confidentiality and disclosure of the SRA Code.

Outcome (4.1) states that you must ‘keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents’. The use of social media exposes you to the risk that confidential information may be inadvertently (or otherwise) disclosed, as illustrated in some of the examples above.

5.2.2.1  Logging out

You must always ensure that you log out of social media sites, particularly if you share a machine with other colleagues. If you remain logged in your account can be viewed by another user, even if you turn off your machine or quit your browser.

5.2.3  Control over information

You 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 your practice will have little control.

5.2.3.1  Right to be forgotten

There is currently a debate about whether or not information is ever deleted from social media sites. Information published on social media is not always easily removable, particularly when this information comes from a third party. This is a point that has been controversial regarding Facebook.

Currently, both Twitter and Facebook have the following statements on this:

Twitter: ‘You can also permanently delete your Twitter account. If you follow the instructions here your account will be deactivated and then deleted… After 30 days, we begin the process of deleting your account from our systems, which can take up to a week.’

Facebook: ‘When you delete an account, it is permanently deleted from Facebook. It typically takes about one month to delete an account, but some information may remain in backup copies and logs for up to 90 days. You should only delete your account if you are sure you never want to reactivate it. You can delete your account at: https://www.facebook.com/help/contact.php?show_form=delete_account.’

5.2.3.2  Disclosure

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). You should consider that information on social media sites could be produced as evidence by either side in litigation.

6.  Setting a social media policy

6.1  Purpose of a social media policy

Engaging in social media activity requires planning, and practices should consider having a policy in place. Policies will vary according to your own business needs, but broadly it should define the parameters of social media activity and the guidelines for engagement. The purpose of a policy should be to:

• consider what value engaging in social media will bring to a practice and its clients

• ensure that staff making use of social media are aware of the standards and processes that are in place, and are using the most appropriate channels

• protect your practice’s reputation from inappropriate use of social media

For smaller practices, it may not be necessary to have a written policy in place. However, you should note the points outlined below and think about electing one individual to be responsible for overseeing social media activity within your practice.

6.2  What a social media policy should include

You may wish to consider the following points when drafting your social media policy:

Strategy: How social media activity will support or promote your practice’s aims and objectives.

Guidelines for engaging: What the limitations are as to what can be discussed, commented on or promoted via social media to avoid potential for reputational damage to an individual or practice. To include:

• details of how these guidelines will be communicated to those participating in social media

• where relevant, details on the use of disclaimers stating that the views expressed are those of the employee and are not representative of the employee’s view

Management: Who will manage your practice’s social media policy and be responsible for ensuring compliance? To include:

• any restrictions in employment contracts

• details of the training and support required for those using social media

• details of the process for managing breaches of the social media policy, for example withdrawing an individual from a project.

Roles and responsibilities: Who will oversee social media activity and take responsibility for the day-to-day administration of the different activities, and who will be able to participate in social media activity within your practice? To include:

• details of who will ‘own’ social media contacts. If you are responsible for your practice’s page on a social media site, it will be the practice that owns the content and contacts, whereas the contacts on your own personal page on a social media site belong to you.

Is it more appropriate to use a work or personal email address? For example, if you are setting up a personal profile on LinkedIn it may be more practical to use a personal email address as this would not be affected if you changed employers. On the other hand, a work email address would be more appropriate if you are promoting services.

Compliance: How will you ensure that your social media activity is compliant with the SRA Handbook and Code of Conduct 2011?

Confidentiality: How will your practice ensure that confidentiality is maintained when social media is used?

Consistency: How will your practice ensure consistency in its approach to drafting messages and contributing to discussions that take place within different social media channels? You may also wish to ensure that the presentation of social media activity is consistent with your practice’s branding guidelines.

7.  Setting up a social media channel

When a practice or individual is setting up a new social media channel, the following factors should be considered:

Purpose

What is the aim of it and how does it fit in with the practice’s strategy? (which may be set out in its social media policy)

Audience and format

Who is the target audience?

Is it aimed at a specific group or a more general audience?

Having identified the audience, which social media channel will be used for the activity?

Consider any ‘unintended’ audiences and potential lack of control over information.

Management

Who will be resposible for this social media activity, and what roles will individuals have?

You should also think about the content and administration of the social media activity.

8.  More information

8.1  Practice Advice Service

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays or email practiceadvice@lawsociety.org.uk

8.2  Professional ethics helpline

The Solicitors Regulation Authority’s professional ethics helpline for advice on conduct issues.