This time last year we saw the ultimate law firm social media fallout after a tweet following a court victory by Mark Small of Baker Small resulted in three local Councils cutting their ties with the firm, national adverse media coverage and an unreserved apology.
Mark Small was rebuked by the SRA and ordered to pay £600 costs, but fortunately he and Baker Small have ridden the storm and remain in business, with no name change.
When could things go horribly wrong?
Opinions are often expressed casually and freely by lawyers on social media, and making an error of judgment could be easier than we think.
So how can we stay out of trouble and avoid adverse publicity through mistakes on social media? In short, exercising great care with publicity concerning both you and your law firm where it concerns your client work.
There’s nothing wrong with a lawyer who has a personality but there are consequences when sensitive confidential client information is divulged, an insensitive opinion is expressed on a client matter, or when we provide false information.
Is our Social Media use Regulated?
It’s not a free for all. The requirements of Chapter 8 of the SRA Code of Conduct concerning publicity apply to solicitors who are publishing any information or news about work they do for their law firm.
The Solicitors Regulation Authority’s definition of “publicity” is extremely wide:
“(publicity) includes all promotional material and activity, including the name or description of your firm, stationery, advertisements, brochures, websites, directory entries, media appearances, promotional press releases, and direct approaches to potential clients and other persons, whether conducted in person, in writing, or in electronic form, but does not include press releases prepared on behalf of a client.”
By my reckoning this would therefore include all Twitter and LinkedIn updates concerning a regulated law firm and its work. Chapter 8 is worth reading in full, but key relevant requirements state that publicity:
– should be accurate and not misleading
– is not likely to diminish the trust the public places in you and in the provision of legal services
There is also a requirement (Rule 8.4) that clients and the public have appropriate information about you, your firm and how you are regulated – which presumably applies to any LinkedIn, Facebook or Twitter organisational profile.
Do Professional Conduct principles apply?
The core principles found in the introduction to the Code of Conduct apply to publicity by solicitors (or by publicity by support and management staff on behalf of solicitors), including the requirement to:
– act with integrity
– not allow your independence to be compromised, and
– behave in a way that maintains the trust the public places in you and in the provision of legal services
Hasty post court/settlement announcements may therefore need to be exercised with extreme care – consider discussing the proposed publicity carefully with the client first, and also make sure the tone of the publicity is professional and properly reflects the legal and justice issues that are at the core of our work.
Defamation and Social Media
The number one rule, should any of us need reminding, is that in the law of defamation there is no difference between a comment made in the local or national media and a comment made on Facebook, Twitter, LinkedIn or a blog, and we have seen legal action in the UK concerning libelous facebook posts.
So unless we can be sure that a comment is based on fact and this can readily verified, we need to be extremely cautious if a comment or post may cause people to think worse of any person.
Confidentiality Breaches on Social Media
Many lawyers at all levels announce updates or outcomes of legal cases they are involved in on their personal social media accounts. These updates could be very damaging both to the individual and their firm unless information is divulged which is already in the public domain, for example a court judgment.
The early public disclosure of a settlement agreement or outcome on social media concerning a client’s case could breach:
– Confidentiality clauses within a settlement agreement,
– The firm’s terms of business with the client;
– Chapter 4 of the SRA Code of Conduct (on confidentiality).
A breach could result in a serious complaint by the client, action by the SRA, a claim for damages by the client against the disclosing firm, and adverse publicity.
The key point here is that although social media accounts are personal, we forget our activity is linked with our employer and our profession. A brief casual update intended for colleagues/close contacts can go badly wrong if its client related or unprofessional and is shared widely out of context. Hopefully the triple deterrent of a disciplinary outcome by the SRA, the employer and potential client action should be enough to make us think twice before making a careless social media post, but we are all human and regular casual use can lead to mistakes.
The risk of a potential fallout from an announcement which takes an unexpected twist is so great, a policy buried in a handbook may not be adequate and it could be a good plan to actively manage the risks of a so social media fallout through regular reminders and reviews. All solicitors should be very familiar with the regulatory and legal issues and receive training on responsible social media engagement.
Sharon Cain of Quest PR (see her full comment below) has some very sound advice on forming a safe social media strategy for lawyers and law firms:
Engaging, sharing and adding value with content which provokes healthy and inoffensive discussion while ensuring a joined-up approach to communication programmes is a critical success factor. If in doubt, firms would be better off banning flippant, personal opinions and sharing milestones, advice columns, thought leadership, community programmes. To stay alive and thrive by generating a buzz for all the right reasons will avoid irreparable reputational damage.