What’s in a name? A great deal for lawyers. In our line of work, it is what we hang our hats on. In years gone by, building a good name in the legal profession meant getting favourable results for clients and, of course, not doing anything that would jeopardise our standing as a fit and proper person in the community.
How we conduct ourselves professionally and privately remains imperative to our good name, but for lawyers entering the market of legal services today, using online and other emerging technologies may become increasingly necessary as well.
In a competitive sector, and in the face of high and sometimes unaffordable marketing costs, social media can be a quick and simple solution for many law practices and practitioners. However, like with any task approached by a solicitor, care and good judgment should be employed to avoid possible disciplinary challenge.
In this article, we consider some regulatory and ethical issues that may arise for legal practitioners posting information on social media, whether in their professional or personal capacity.
Regulatory considerations
Let’s first consider the potential regulatory issues with the help of a case study.
Case study
Danielle is a paralegal working in the Wills and Estates team of a boutique law firm.
Danielle was recently admitted to the legal profession. Although she has applied to the Law Society of NSW for her practising certificate, she has not yet received it.
Danielle regularly posts information on her LinkedIn account, either commenting on recently decided cases or providing legal information on various aspects of Wills and Estates law.
Danielle recently published a post on LinkedIn about points to consider when preparing a Will.
Her post garnered a few comments. In one, Danielle was asked whether it would be beneficial to include superannuation death benefits in a Will.
What are the regulatory risks?
Unqualified practice
Depending on who made the comment and how much Danielle knows about their personal circumstances, a response from Danielle (which, perhaps unintentionally, factors in those circumstances) could constitute legal advice.
Danielle does not hold a practising certificate and is therefore not authorised to provide that advice.[1] A person who engages in unqualified legal practice may be liable to pay a fine of up to $27,500 (as of 1 July 2015) or two years imprisonment or both.[2]
But what if Danielle were issued with a practising certificate? Would this alleviate the risk?
Not likely.
Even if Danielle held a practising certificate, any legal advice provided by her would need to be given:
- through a qualified entity,[3] meaning a law practice registered with the Law Society of NSW and covered by an approved policy of professional indemnity insurance[4] and
- under the reasonable supervision of another practitioner who is authorised to supervise legal practice by others.[5]
This means that, despite holding a practising certificate, Danielle would not be able to give legal advice on her own account.
A solicitor who fails to comply with the conditions of their practising certificate could be found to have engaged in unsatisfactory professional conduct or professional misconduct.[6]
Unreasonable supervision
If Danielle published the post in the course of employment, there may be implications for Danielle’s employer, the principals of the law firm.
Under section 34 of the Legal Profession Uniform Law (NSW) (Uniform Law), the principals of the law firm would be responsible for ensuring that reasonable steps are taken to ensure that, among other things, legal services provided by the practice are done so in accordance with the Uniform Law regime.
A breach of section 34 of the Uniform Law can constitute unsatisfactory professional conduct or professional misconduct.
Law practice principals should consider developing and implementing a social media policy to provide guidance on the use of social media at work and at home. A clear and documented policy ensures that employees understand the difference between making representations on social media platforms on behalf of the firm and the personal use of social media.
The Law Society of NSW Legal Technology Committee has issued helpful guidelines on matters to consider in a social medial policy.
Ethical considerations
The solicitor-client relationship
Apart from the issues already discussed, solicitors should also turn their minds to the solicitor-client relationship. Specifically, the question of whether one has inadvertently formed through posts and comments made on social media.
While a contractual retainer may never come to fruition, solicitors need to be mindful whether certain interactions they have on social media could render the other party a client from an ethics point of view. In other words, has the person interacting with the solicitor disclosed information to the solicitor with a view to seek legal assistance. This will likely attract duties on the part of the solicitor to maintain the client’s confidentiality and to avoid conflicts of interest.
Propriety
While the case study does not touch on issues of fitness to practise law, propriety should be front and centre of every legal practitioner’s mind when using social media.
Solicitors are reminded of their obligations under rules 5, 36 and 42 of the Australian Solicitors’ Conduct Rules.
Rule 5
Under rule 5, a solicitor must not to engage in conduct, in the course of legal practice or otherwise, which—
- demonstrates that the solicitor is not a fit and proper person to practise law, or
- is likely to a material degree to—
- be prejudicial to, or diminish the public confidence in, the administration of justice, or
- bring the profession into disrepute.
Rule 36
Any post using social media should be in accordance with the requirements pursuant to rule 36 on advertising for solicitors: where a solicitor or principal of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not “false, … misleading or deceptive or likely to mislead or deceive, … offensive, … or prohibited by law.”
The regulatory obligations of solicitors and law practices in relation to law practice marketing were considered in a previous article in the Ethics and Standards Quarterly – Solicitor and law practice marketing – how do I meet my regulatory obligations?
Rule 42
Finally, “[a] solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes discrimination, sexual harassment, any other form of harassment, or workplace bullying.
Remember the obligations under rules 5 and 42 are far-reaching, applying to solicitors in the course of legal practice and otherwise.
Breach of “no contact” rule
Solicitors should also be wary of rule 33 of the Australian Solicitors’ Conduct Rules, which prohibits a solicitor from dealing directly with another solicitor’s client or clients except in certain urgent and limited circumstances.
Before interacting with a person whom you don’t know on social media, even if it is simply accepting an invitation to connect, it will be worth your while finding out who that person is.
Want guidance on your regulatory or ethical obligations?
Social media is increasingly part and parcel of law practice marketing.
The Law Society of NSW is committed to helping practitioners understand how to meet their regulatory, professional and ethical obligations while embracing new advertising methods.
If you would like further assistance in understanding your regulatory and ethical obligations in relation to law practice promotion, contact the Law Society’s Professional Support Unit for free and confidential guidance.
Please note that PSU do not approve advertising and marketing content; PSU provides guidance to all solicitors regarding their obligations under the Uniform Law and Rules, in the areas of costs, ethics and regulatory compliance, and in relation to the AML/CTF reforms. Enquiries to PSU can be made by telephone, email, or in person.
Costs: costs@lawsociety.com.au or (02) 9926 0116
Ethics: ethics@lawsociety.com.au or (02) 9926 0114
Regulatory Compliance: regulatory.compliance@lawsociety.com.au or (02) 9926 0115
AML/CTF: aml@lawsociety.com.au or (02) 9926 0249.
[1] Legal Profession Uniform Law (NSW), section 10.
[2] Ibid.
[3] Ibid.
[4] Ibid, section 211.
[5] Ibid, section 47(6).
[6] Ibid, section 298.
