By -

Social media is a very powerful means of communication. For legal practitioners, there are several obligations connected with its use.

Responsible use

First and foremost, the approach to the use of all social media should be in the context of responsible use, and in compliance with professional obligations of confidentiality and discreet communication.

Confidentiality is essential when managing all information about a client that a solicitor may possess. According to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, unless there are exceptions where “… a client expressly or impliedly authorises disclosure … or other exception to confidentiality,” all information from clients should be treated as confidential.

Rule 9.1 states:

“A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:

a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice [rule 9.1.1], or

a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client [rule 9.1.1].”

Adherence to these requirements may be jeopardised when information is provided in an innocent tweet or post. The ease of posting on social media can lead to a decrease in the vigilance every solicitor needs to demonstrate.

There are additional obligations that restrict any communication on social media in relation to current proceedings. Rule 28.1 states:

“A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.”

It is essential to remember that the growth of identity fraud and cybercrime, and the increase in the incidence of impostors acting as legal professionals, have been facilitated by the greater use of social media and the release of information by participants in social media.

Advertising a practice via social media

Legal professionals should also understand the social media obligations in relation to practice promotion, advertising and solicitation. 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.”

Legal professionals cannot make false claims about specialist expertise on social media – or in any other medium used for advertising their services. Rule 36.2 states, “A solicitor must not convey a false, misleading or deceptive impression of specialist expertise and must not advertise or authorise advertising in a manner that uses the words “accredited specialist” or a derivative of those words (including post-nominals), unless the solicitor is a specialist accredited by the relevant professional association.”

Answering your questions

As a general rule, as a legal professional you should exercise care with all content you share when using social media. If you have a question about ethical issues relating to the use of social media, please contact the Law Society of NSW’s ethics help line.

Paul Monaghan is a Senior Ethics Lawyer at the Law Society of NSW.