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Ethical issues when using social media

Ethical issues when using social media

Law firms and lawyers often agonise about whether social media is appropriate for their image, but they should also reflect on ethical considerations, writes Steve Mark.

Law firms and lawyers often agonise about whether social media is appropriate for their image, but they should also reflect on ethical considerations, writes Steve Mark.

A few months ago I came across a blog on a professional association’s website promoting the use of LinkedIn for lawyers and law firms.

The article was about the benefits of using LinkedIn to build a reputation, share content, nurture relationships and communicate to clients and peers. The article provided a number of tips suggesting such things as setting up a separate personal account to have complete control over it and asking for recommendations/endorsements from colleagues.

The article also suggested lawyers should add connections but advised readers to be careful to not spam every contact in their address book.

I was flabbergasted by the article.

This was a professional association in Australia giving detailed advice and hints to their members (and by virtue of its publication on the web, non-members) about social media use, yet nowhere in that article did the word “ethics” appear. The article did not refer to any of the ethical implications for lawyers that arise in using LinkedIn or other forms of social media, nor did it mention any of the professional conduct rules.

Epic reach

LinkedIn, the world’s largest professional network, celebrated its 10th birthday on 5 May this year. It’s use by professionals is epic. According to LinkedIn, as of August 2013 it had more than 238 million members worldwide. There are four million LinkedIn members in Australia.

LinkedIn is the social network of choice for the legal profession. According to the soon-to-be-released 2013 Legal Technology Survey Report, prepared by the ABA Legal Technology Resource Centre (LTRC), 55.8 percent of respondents’ law firms maintained a presence on LinkedIn, while only 34.9 per cent maintained a presence on second-place Facebook. It is a marketing mecca and a website that the lawyers, law firms, law students and regulators of the legal profession cannot ignore.

The benefits of using a social media site like LinkedIn for the legal profession cannot be denied. LinkedIn is not only useful to stay in touch with existing professional acquaintances or friends and to reach out to potential new talent, it is also a great online version of your paper resume if you are applying for a new job. LinkedIn can also prove useful in litigation if, for example, you are trying to track down a person needed to support your case, and the best part about LinkedIn is that it is free.

Socially awkward

However, LinkedIn can also pose a myriad of negative consequences if it is not used appropriately. This is because as a legal practitioner our primary duty is to the court and the administration of justice. We also have a fiduciary duty to clients. These duties are enshrined in both the common law and in the practice rules and very clearly set a framework for what we can and cannot do.  

For example, as legal practitioners we have a duty of candour to the court. So a legal practitioner who posted a message about his big win in court, or negotiating a major deal and described the details of that case, or advised a client in a family law matter by social media which court to attend and the matter number, could be in breach of professional duties.

It seems silly to have to even make these points but the reality is that it does happen.

Be aware that when you set up your own personal account, your LinkedIn account, whether personal or not, can at any time be corrupted by a security breach. Similarly, be aware that asking for endorsements or recommendations may be a violation of the advertising regulations and the professional conduct rules.

Furthermore, when adding connections you need to be more than just aware of spamming people; you need to be aware of who you are adding as a connection and why.

Adding a judge because you socialise with him occasionally may send the wrong message to the opponents on the other side; connecting with a person to obtain further information to aid your case may raise an ethical issue.

LinkedIn, like, all social media tools, can provide many benefits, but it can also provide ethical challenges.

Steve Mark is the former legal services commissioner of New South Wales. Steve held this position for 19 years until August this year. He now runs a boutique consultancy advising in law, ethics, regulation and business.

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