Handling Social Media PLEA5e
Fernando Aguilar de Carvalho (Uría Menéndez) Nigel Boardman (Slaughter and May) Clare Corke (Corrs Chambers Westgarth) Shyam Radia (Sunbird Group)
17 November 2016
/ What is social media?
Social media platforms are internet-based tools which enable information to be communicated or shared
What platforms might lawyers encounter? o Social (Facebook) and professional (LinkedIn) networking sites o Blogs (Tumblr) and Micro-Blogs (Twitter) o Video (YouTube) and photo (Instagram, Snapchat, Pinterest) sharing sites o Instant messaging (WhatsApp) o Online encyclopaedias (Wikipedia)
/ 2 Social Media and Law Firms
/ Social media principles for the legal profession The IBA Council approved and adopted a set of social media guidance principles for member bar associations entitled IBA International Principles on Social Media Conduct for the Legal Profession. 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.
Maintaining Independence Integrity Responsibility Confidentiality public Policy confidence
/ Reasons to use social media
o Positioning and brand reinforcement o Where stakeholders are found
o Opportunity to differentiate o Where references are obtained
o Attracting talent o Complementary to other means of communication: newsletters, events, o Knowledge management publications, etc.
o Media information
o Keeping in touch with alumni
/ Using social media for advertising and recruiting
OPPORTUNITIES RISKS •By-pass traditional, •Misleading and deceptive expensive forms of conduct advertising •Discrimination •Connect with people when •Privacy Issues they are on the move •Responsibility for other •Deliver specific content to people’s posts people who are interested in it •Useful tool for recruitment (Linked In)
/ Practical pointers: navigating social media
Create a policy on use of social media
Clarify that information given on social Keep up to media is not date on legal advice technological and cannot be changes relied upon for How to that purpose mitigate the risks
Teach your employees Communicate about social as clearly as media best possible practice and pitfalls / Problems of using social media
o Very conservative sector and important deontological restrictions
o Demand an active role within the context of a clear communication strategy
o It is advisable to have a protocol for behaviour on social networks for our lawyers
o Share the same risks as those for offline communication, but require a more immediate response
/ Giving advice on social media: ethical risk areas
Risk: Inadvertently Risk: Creating Risk: Bringing the law Risk: Dealing directly disclosing client unintended solicitor- into disrepute with another lawyer’s information client relationships client
justice E.g. Expressing E.g. Lawyer tweets E.g. Lawyer’s opinions on merits of E.g. Lawyer sends a that they are in a Facebook friend posts potential/current Facebook “friend” certain location, a legal/quasi-legal legal proceedings request to another either through text question on lawyer’s may interfere in the lawyer’s client to or geotagging may Facebook wall any administration of gain access to their unintentionally answer posted by the justice Facebook page or lawyer may be Adverse/demeaning accepts a “friend” disclose that they are Inadvertent retainer construed as legal comments about request from a person Duty of confidentiality Duty of working with an
advice for which the Duty not to communicate whom the lawyer identifiable client other lawyers may lawyer’s other client with lawyer may become diminish public knows to be another and breach duty of liable of Duty to the administration lawyer’s client confidentiality confidence in the administration of unethical conduct justice
/ 9 What to watch out for: Other risk areas Defamation
Defamation laws apply to communications made on social media channels
Use as evidence
Evidence of behaviour of social media can be used as evidence
Employees’ use of social media May be interpreted as representing the views of the firm, may impact adversely on firm or may cause breaches of ethical behaviour to occur
Risk to reputation
Risk of a practitioner’s reputation being adversely affected. / War stories: what not to do Defamation
In Mohareb v Palmer, Palmer posted Breach of duty not to contact posters with inflammatory comments other lawyer’s client towards Mohareb (including the suggestion that Mohareb “may or may In US v Bank of America Corp, a not be related to Satan” on a juror complained that the defence Facebook page. A Deed of Settlement had cyberstalked him on LinkedIn and Release was entered into which after a first-year associate required Palmer to post public unintentionally left an electronic apologies on the Facebook page. calling card recording his visit. Palmer removed the apologies several Columbia District Court of Appeal times. The New South Wales District held: rebuked the defence Court required Palmer to pay his costs lawyers, stating that while lawyers ($14,721) due to non-compliance with were allowed to collect the Deed. information about jurors that was In Hockey v Fairfax Media Publications available online, they were Pty Limited, the Federal Court of prohibited from communicating Australia held that twitter posts about with jurors. former treasurer Joe Hockey were found to be defamatory.
/ War stories: what not to do
Social media post as evidence Breach of confidentiality In Gulliver Schools, Inc. & Anor v In In the Matter of Peshek, Illinois Snay No. 3, Snay signed a disciplinary tribunal recommended settlement agreement with that an assistant public defender Gulliver, his former employer, be disbarred after she discussed containing a non-disclosure clause. her cases on her blog. She Snay told his daughter who breached her obligation of published to her 1200 Facebook confidentiality to her client and friends: “Mama and Papa Snay won made comments about the the case against Gulliver. Gulliver judiciary that were prejudicial to is now officially paying for my the administration of justice. vacation to Europe this Summer. In In re Skinner Ga, Georgia SUCK IT”. Florida District Court of Supreme Court found that a lawyer Appeal held: that Snay’s daughter’s who revealed confidential post was “impressive evidence” of information about a former client his breach. Ordered Snay to pay when responding to negative back $80,000 to Gulliver. online reviews by that client should be subject to sanction.
/ War stories: what not to do
Facebook Facebook In Portugal, a trainee at a law firm posted a photo on Facebook in which In Texas, a lawyer requested a period some confidential documents were of leave due to the loss of his father visible. and the judge of the case found out through Facebook that, in fact, he was out partying.
Twitter In England, a judge was forced to resign because of a Tweet about matters related to some of his legal cases
/ Dealing with social media crisis. Top Tips:
1. Anticipating a crisis
2. Forecasting possible scenarios
3. Awareness of abilities and resources
4. Assembling a crisis management team
5. Producing messages in the event of a crisis
6. Response time
/ © Slaughter and May, 2016 This material is for general information only and is not intended to provide legal advice. For further information, please speak to your usual Slaughter and May contact.
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