Why you should check your social media habits, post haste

Could your LinkedIn post do more harm than good? Social media blunders by legal practitioners continue to make headlines, writes Annette Beashel.

Social media is a great way to expand your professional network and raise your profile.

However, the public nature of social media means that it carries with it certain risks if it is not used appropriately. Despite the known risks, there has been an increase in examples of lawyers not thinking before they post and, as a result, inadvertently breaching their professional conduct rules. Perhaps it is time to revise your firm’s policies and make sure your staff know what to do.

It’s easy to get it wrong…

Below are some examples of the type of behaviour and use of social media which can result in a breach of professional conduct obligations, as well as a few recent cases on the topic:

1. We have all seen posts on LinkedIn of people’s work set-up at home, particularly with most people engaging in hybrid work patterns. In addition, as travel picks up, there are more photos popping up of people working remotely from beaches or airports. These posts could breach client confidentiality; for example, if documents containing client names or confidential information are visible on your desk or screen. Or they could give the impression that you are working from a location that compromises confidentiality.
2. In a recent case, a NSW lawyer had his practising certificate suspended after publishing several posts on Facebook which encouraged the public to not comply with COVID-19 mandates in place at the time (see Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328).
3. In the US, a lawyer boasted at a firm function about obtaining a positive result for a client by allegedly implying that he misrepresented the facts of the case. A person at the function took a video of the speech and posted it on the firm’s social media page. The video was later removed, but it was downloaded by a member of the public beforehand and circulated on Twitter. This resulted in confidential information being leaked which was not in the best interests of the client and the matter being called back to court for a potential retrial (see the full story here).
4. There have been various examples of lawyers tweeting complaints about working long hours and the work they have been assigned. It is easy to identify which firm those individuals work at, and even those tweets that used pseudonyms were picked up by legal gossip website, Roll on Friday.  This is reputationally embarrassing for the firm and individual lawyers, but clients may also not appreciate staff complaining about working on their matters.
5. Taking a selfie in a court room and posting it on to Instagram or another social media site is risky. Photos are generally not permitted within courts for good reason, including to protect the identity of witnesses. Likewise, posting a picture of yourself with a client outside a courthouse with a caption “great win today” could cause disclosure of confidential information with respect to acting for that client. This is particularly a trap for younger lawyers who may be used to regularly posting updates on social media.

Your obligations

When using social media, the below obligations contained in the Australian Solicitors Conduct Rules (ASCR) should be front of mind. These requirements apply to professional and personal, or private posts. Regulators will consider conduct outside of work if it breaches the below rules. Posting anonymously will not absolve you of your professional obligations. 

• A solicitor is an officer of the court and has a paramount duty to the court and to the administration of justice (Rule 3 ASCR).
• A solicitor must not engage in conduct that would demonstrate them to not be a fit and proper person, 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 5 ASCR).
• A solicitor must not disclose confidential information except as permitted by Rule 9 of the ASCR. 
• A solicitor must not publish any material concerning current proceedings which may prejudice a fair trial or the administration of justice (Rule 28 ASCR).
• A solicitor must not in course or acting or in connection with legal practice or their profession engage in conduct which constitutes discrimination, sexual harassment, any other form or harassment or workplace bullying (Rule 42 ASCR). 
• A solicitor must ensure that advertising, marketing and promotion is not false, misleading, offensive or prohibited by law (Rule 36 ASCR).

The rules around inadvertent disclosure (Rule 32), unfounded allegations (Rule 32) and dealing with other persons (Rule 34) could also be engaged depending on the conduct.

A breach of the rules could constitute unsatisfactory professional conduct or professional misconduct, and may give rise to disciplinary action by the Law Society (Rule 2.3 ASCR). Therefore, depending on the severity of the conduct engaged in on social media, there could be serious consequences.

Be wary, too, that the prohibition on having contact with another solicitor’s client (Rule 33) could be breached if you connect with that client through social media; for example, by accepting a friend request or connection request on the relevant platform.

Managing the risks

There are three key steps firms can take to manage the risks around social media:

1. Have a robust social media policy – firms should ensure that they have a policy that addresses what is appropriate use of social media, prohibits posting of offensive or inappropriate content, and includes a process for dealing with breaches of the policy. 
2. Have controls around posting – if there are firm accounts on social media, only a limited handful of senior staff should be entitled to post to those accounts. Ensure articles are vetted before posting. Do a regular audit of recent posts by staff to identify anything inappropriate that may have been posted.
3. Offer regular training and reinforcement of key messages – ensure that all staff are aware of the firm’s social media policy and receive regular training or reminders about the requirements.

For individual lawyers, know your firm’s policy on social media and, before you post anything online, stop for a minute and ask yourself the following questions: What would my clients think? Would this impact my or my firm’s reputation? Could this breach confidentiality? What will I think of my post in the future?

Remember that whatever you post on social media will be there forever and may come back to haunt you.

There are a lot of benefits to using social media and it can be a useful tool for building a successful professional career. However, care must be taken to remain professional at all times.

Annette Beashel is Senior Risk Lawyer and Regional Risk Manager APAC (Australia)

for Clyde & Co, and has 15 years’ experience in advising international law firms on

internal legal and regulatory compliance risks, across Australia, Asia and the United

Kingdom.