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August 01, 2016

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'Facing' Social Media: Setting Principles For An Expanding Future


- Anurag Bana, Advocate & Senior Legal Advisor [ International Bar Association (London) ]

Anurag-Bana

With online media here to stay, it is important for legal education to keep pace with changes in technology and modes of communication...

A constant challenge for legal ethics education is to keep pace with new challenges facing the global legal profession. This is particularly true in the 21st century, as rapid changes in technology and modes of communication and networking create new questions for legal professional ethics. Legal education has a central role to play in providing guidance to lawyers and judges on how to navigate the online world of social media in a manner that is consistent with legal professional ethics.

The impact of online social media on the legal profession is an issue that requires attention. The legal profession has been under pressure due to the swift, sudden and extensive growth of online social media, but no clear visible lines seem to be clarifying the legal issues as yet. There is also an apprehension that social media is outpacing and probably changing the law itself. Members of the legal community these days use social networking websites and applications such as Facebook, LinkedIn, Twitter and WhatsApp, respectively, for a variety of purposes ranging from purely social to advertisement of business and expansion of networks. Parallel to legal issues are concerns over privacy, confidentiality, ethics and the need for rapidly evolving courtroom rules that remain consistent with constitutional rights.

Cross-border incidents of profiling 'usemisuse'

Two schools of thought have gradually emerged regarding the use of online social networking: those that argue for full acceptance and those who advocate for total online privacy, or no mix between the online and professional world. Proponents correctly argue that activities such as blogging and tweeting may serve to 'deepen professional networks' and allow advocates to 'obtain legal, business and industry news.'1 These modes of communication also allow advocates to connect with their clients on a more personal level. In many jurisdictions, even courts have begun to accept the changes by allowing Facebook profiles and 'tweets' both as discoverable material and as evidence during trial. In England, a few years ago, the High Court even granted permission for an injunction to be served via Twitter on an anonymous user posting under the same name as a political blogger.2

Legal journals and newspapers are rife with examples of misuse of social media websites taking place in the courtroom, and such misuse intertwines issues of both privacy and ethics. Notably, a United States District Court Judge received a public reprimand for discussing a case on Facebook, including the possibility of settlement. In evaluating his conduct, the Judicial Standards Commission stated that the judge's actions were 'prejudicial to the administration of justice' and 'brought the judicial office into disrepute.'3 A state court judge in Texas discovered that a lawyer who had asked for a continuance of trial due to a death in her family had posted pictures and status updates about 'drinking, going out and partying' during the time off.4

On a smaller scale, many matrimonial and personal injury lawyers in the US now advise clients to shut down their Facebook accounts at the start of representation, since those profiles may relate to a client's pecuniary status or ability to perform daily activities and may contradict what a client has stated to the court. In Canada, the Ontario Supreme Court has justified the admission of Facebook photographs because even though the photographs have 'minimal probative value', they generally relate to such claims as loss of enjoyment of life.5

social-media

Need for rules or principles?

Underlying basic privacy concerns about information posted on social websites are serious ethical considerations of posting material on these websites. Without a clear boundary or guideline as to proper social networking behaviour, legal professionals are left to discern those boundaries; thus there is a division between personal and professional use of social networking behaviour. The difficulty in discerning exactly where this boundary lies is even evidenced by such examples like the one noted by the Bombay High Court in 2014 where the court admitted that it was tough to deal with offensive posts against the judiciary.6

Several considerations of such nature have given rise to the need for developing model rules or principles encouraging discretion regarding the use of social media. In February 2012, the International Bar Association Legal Projects Team (IBA LPT) published a report entitled 'The Impact of Online Social Networking on the Legal Profession and Practice', following an extensive international survey of bar associations. (The final report is available at the following link: http://tinyurl.com/nzpj8lc). Over 90 per cent of respondents identified a need for bar associations, law societies and councils, or, alternatively, the IBA, to develop guidelines regarding the use of online social networking sites in the legal profession for educational purposes. In response, the IBA LPT and representatives from the IBA Bar Issues Commission (BIC) Policy Committee formed a specialist working group to develop a set of principles, to be applied by the legal profession when using social media.

In May 2014, the IBA Council approved a set of social media guidance principles for bar associations entitled 'IBA International Principles on Social Media Conduct for the Legal Profession' (link: http://tinyurl.com/leeos8t). The set of six guidance principles encourages member bar associations and regulatory bodies around the world to take affirmative steps to promote social media conduct within the legal profession in accordance with relevant rules of professional responsibility and considerations of civility. This is essential for maintaining public confidence in legal practitioners and for promoting the administration of justice. The headings of the six guidance principles are listed as following:

  • Independence
  • Integrity
  • Responsibility
  • Confidentiality
  • Maintaining public confidence
  • Policy

The guidance principles' document has been included as a legal instrument in the IBA Bar Issues Commission's Programme for Excellence which is a project being run in 2016-2017 for bar associations and legal professionals worldwide with the aim of optimising the relevance and use of existing IBA legal instruments and legal educational resources.

Conclusion

Online social media is here to stay. It is important for legal education to attempt to keep pace with the changes in technology and modes of communication. It is a constant and crucial effort to educate lawyers and judges about the risks and ethical issues associated with the use of social media as it will certainly have an impact on the future identity of the legal profession. The IBA principles must be incorporated into the 21st century legal education in law schools and be part of the Continuous Legal Education (CLE) programmes, as at their core lies the responsibility to apply the same high standards of conduct (with which lawyers are familiar) to online activity by acting professionally to maintain public confidence in legal practitioners.

1 Matt Silverman, 'How Lawyers are using Social Media for Real Results', http://mashable.com/2010/06/01/lawyers-social-media/.
2 'Court order served over Twitter' BBC News Channel (London, 1 October 2009), http://news.bbc.co.uk/1/hi/8285954.stm.
3 R Jones, 'Judge Reprimanded for discussing case on Facebook' The Dispatch (United States, 1 June 2009), www.the-dispatch.com/article/20090601/ARTICLES/905319995.
4 M McDonough, 'Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches' [2010] ABAJ, www.abajournal.com/news/article/facebooking_judge_catches_lawyers_in_lies_crossing_ethical_lines_abachicago/.
5 Murphy v Perger, 2007 O J No 5511 (SCJ) (QL). See also: Goodridge v King, 2007 CanLII 51161 (ON S C).
6 'Tough to deal with offensive posts against judiciary: HC' The Times of India (Mumbai, 26 November 2014), http://timesofindia.indiatimes.com/city/mumbai/Tough-to-deal-with-offensive-posts-against-judiciary-HC/ articleshow/45277062.cms.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

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