Social Media And The Modern Lawyer: 8 Ethical Blunders Lawyers Must Avoid On Social Media
Nowadays, with the emergence of social media sites like LinkedIn, Facebook, Twitter and others, many lawyers are flocking to social media to announce their professional profiles with little or no awareness of the potential ethical landmines that lie in wait especially those that prohibit legal advertising by lawyers. Decisions in Nigeria like Fawehinmi v. Legal Practitioner’s Disciplinary Committee have long since laid the marker against advertising by legal practitioners. While in the past advertising may have been limited to adverts placed on newspapers and billboards, there has been a sea change with the rise of social media. These days, advertising within the meaning of the rules of professional conduct for legal practitioners has been extended to the Innocuous, inadvertent posts lawyers place on social media which directly breach legal ethics.
The effect of a lawyer’s unethical conduct on social media could be the subject of a disciplinary hearing before the legal practitioner’s disciplinary committee and quite possibly constitute grounds for a lawyers disbarment or temporary suspension from practice. So it is important lawyers and law students seize this opportunity to acquaint themselves with the rules of legal ethics as they apply to social media and avoid future ethical blunders. I must add here, that I’ve had access to the rules of professional conduct for other common law jurisdictions including the UK and the state of New York and they do bear striking familiarity except for minor discrepancies.
(1) Never brag about your success rate as lawyer on social media
Part E, Section 39(2) of the Rules of Professional Conduct for Legal Practitioners in Nigeria states “A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which:
(c) Makes comparison with or criticizes other lawyers or other professionals;
(d) Includes any statement about the quality of the lawyers work, the size or his success rate.
Whether you are a judge or lawyer, your post on social media may be caught by this rule of you go bragging about how well you dealt with a client’s case or you use words like “I’m the best brief writer around” or anything in that respect.
(2) Don’t make false or misleading statements on social media
Section 39(2)(a) states that a lawyer shall not engage in any advertising or promotion of his practice of the law which “is inaccurate or likely to mislead”. I’m sure lawyers would have learnt something from precedents like Hedley Byrne & Co v. Heller & Partners Ltd on misstatements. Don’t hold yourself out as an expert in an area of law you are not. That would no doubt be misleading.
(3) Don’t make statements that amount to solicitation
The Black’s Law Dictionary 9th Edition defines solicitation as “an attempt or effort to gain business”. In the context of using social media, this may include acts of lawyers aimed at soliciting for potential clients. An example would be sending a social media message to non-lawyer users with whom you have no existing relationship offering to provide legal services whether for a fee or not. An exception would be if they are your close friends or family members.
(4) Avoid a breach of the duty of secrecy or privileged communications
Through the use of social media, there exists the potential risk of lawyers divulging inadvertently confidential or privileged information. A case in point would be revealing the identities of current or former clients without their consent.
(5) You may not befriend judges on social media
You should eschew sending judges a friend request when there is a strong possibility you’ll be appearing before them in court since your social media relations with the judge may appear as swinging the balance of justice in your favor. Justice they say “must not only be done but must also be seen to be done.” There may be a strong likelihood of bias. Where however you are already friends with the judge, then the best thing to do would be to “recuse” yourself from the matter.
(6) Avoid communication with represented parties
Section 27(5) of the Rules is to the effect that “during the course of his representation of a client, a lawyer shall not:
(a) Communicate, cause another to communicate, on the subject of the representation with party he knows to be represented by a lawyer in that matter unless he has prior consent of the lawyer representing such party in the matter or cause.
You must avoid communicating with represented parties without first obtaining the consent of the opposing client’s lawyer.
Equally you should not send opposing client’s lawyer a friend request on social media prior to a forthcoming case in order to gain access to their private media content.
(7) In dealing with unrepresented 3rd parties, caution must be the watch word.
Avoid using social media to obtain information from 3rd party witnesses that may be relevant in a current or forthcoming litigation. An exception would be if the information is publicly viewable on social media.
(8) Avoid inadvertently creating attorney client relationship on social media
Through interactions on social media with non-lawyers, a lawyer may form an attorney client relationship online with non-lawyers and this will in turn obligate them to maintain the duty of secrecy and privilege communications on all client information. An instance of creating such a relationships is where a lawyer answers legal questions non-lawyers put to them on social media. Some lawyers have sought to avoid the corollary of such situations by cleverly adding the words “I’m not Your Lawyer and you are not My Client” in answers to legal question non-lawyers pose to them online”. It is suggested you follow suit.