{"id":292,"date":"2019-08-05T11:31:11","date_gmt":"2019-08-05T11:31:11","guid":{"rendered":""},"modified":"2019-08-07T11:17:40","modified_gmt":"2019-08-07T11:17:40","slug":"solicitors-ethical-dilemmas-when-using-social-media-sra-code-of-conduct","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/english-legal-system\/solicitors-ethical-dilemmas-when-using-social-media-sra-code-of-conduct.php","title":{"rendered":"Solicitors Ethical Dilemmas when Using Social Media: SRA Code of Conduct"},"content":{"rendered":"

The ethical dilemmas
\nfaced by solicitors when using social media in relation to <\/strong>SRA Code of Conduct <\/strong><\/p>\n

Introduction<\/h3>\n

Law
\nSociety has defined social media \u201cas websites and applications that enable
\nusers to create and share content or to participate in social networking\u201d[1]<\/a>.With
\nthe passing of time, social media has become indispensable to the law
\nenvironment. No matter how indispensible though, it is still quite new within
\nthe legal profession, and as such, represents ethical dilemmas for solicitors in
\nrelation to Solicitors Regulation Authority.    
\n  <\/p>\n

\n

\u201cThe interactions of solicitors on social media, both during office hours and outside them, present multiple ethical dilemmas for solicitors. It is often difficult for solicitors to appreciate this because social media is fairly new to the legal profession, and therefore many solicitors struggle to take it seriously when contemplating Code of Conduct breaches.\u201d[2]<\/a><\/p>\n<\/blockquote>\n

The
\nabove quote by Mena Ruparel and Richard Burnham will be discussed in this essay
\nin comparison with SRA Code of Conduct by touching on the following subjects: social
\nmedia in the legal profession, how ethics applies to social media and the SRA
\nCode of Conduct.<\/p>\n

Social media in the legal profession <\/h3>\n

When
\nsocial media was born, it was used only as means of communication. Only after
\nyear 2011, the businesses found use for social media. Today\u2019s impression is,
\nthat if a firm is not online, it is not trustworthy. Platforms of social media
\ninclude: The firm\u2019s website, LinkedIn, Facebook, YouTube and other. As advised by
\nMena, social media is used in two ways: as a \u201cmarketing tool for a firm\u201d and as
\n\u201ca marketing tool for an individual solicitor.\u201d[3]<\/a><\/p>\n

Firstly, when social media is used as a
\nmarketing tool for a firm, the firm is promoted to the general public, such as
\noutlining the firm\u2019s objective, highlighting their services and fees, their
\ncontact address, and so on. Secondly, when used as a marketing tool for an individual
\nsolicitor, it is used for the promotion of individual services. Sometimes,
\nwithout even realizing it the solicitors may end up, unknowingly, promoting the
\nfirm also just by working with that specific firm. Similarly, individual
\nsolicitors may use social media only for personal reasons without the
\nprofession in mind. Advisable is to keep the professional and personal accounts
\nseparate. In that way, they would get the opportunity to think twice whether it
\nis worth posting. <\/p>\n

This
\nnext paragraph will outline the key benefits and risks of the social media. The
\nmain benefit of social media is the little or no cost of advertising a law
\npractice, contrary to traditional advertising routes. This goes very well with
\nthe smaller firms because even they can afford marketing costs. Another
\nimportant benefit is that firms choose their own advertising information about
\nthemselves rather than relying on third parties or word of mouth. Thirdly,
\nsocial media is available to everyone around the world without any geographical
\nlimitations. This is a great opportunity for niche firms to advertise their
\nservices globally. Lastly, clients expect a social media presence as would
\nconstitute a forward thinking attitude and not having one would raise a red
\nflag.<\/p>\n

Because the information on social media becomes
\navailable very quickly to the public, this could constitute a massive risk, if
\nthe statement were to be untrue or breaks the confidentiality of a client and
\neither the firm or the individual could be made liable under Outcome(8.1)of SRA
\nCode of Conduct, \u201cyour publicity in relation to your firm or in-house practice
\nor for any other business is accurate and not misleading, and is not likely to
\ndiminish the trust the public places in you and in the provision of legal
\nservices\u201d[4]<\/a>. Another
\nserious risk would be the breach of regulatory principles, such as, to act with
\nintegrity or behave in a way that maintains the trust the public places in you
\nand in the provision of legal service. All of these would bring disciplinary
\nproceeding from SRA.<\/p>\n

From a firm\u2019s perspective, the risk is
\nlower compared to the individual solicitor\u2019s risk. This is because there are
\nmore people involved in the decision of making something public on their
\nwebsite and it is more regulated. The individual solicitor\u2019s thought process is
\nhis own and if rushed to publish an opinion, it presents riskier than such of a
\nfirm. The firms can only do so much as to save their solicitors from not using
\nsocial media in the workplace but outside of the working hours the solicitors
\nstill represent a risk to the firm.<\/p>\n

Ethics and Social Media<\/h3>\n

Solicitors
\nstill face ethical dilemmas when it comes to using social media during and
\noutside of working hours. This is because social media is still new to the
\nlegal profession. As such, solicitors are not used to paying so much attention to
\nwhat they are posting and are not taking social media very seriously because,
\nin some of their opinions, there are really bad things happening in the world
\nand posting an advice to a colleague about a client he had, seems so small.
\nAlso another thought of these reticent lawyers is that if they are off work it
\ndoes not really count as they are off to be private citizens.<\/p>\n

Lord Woolfe, in the case Hodgson v
\nImperial Tobacco Ltd [1998]in the Court of Appeal (Civil Division), said parties
\nshould be entitled to have their problems being dealt in court without \u201cimproper
\ninterference with the course of justice\u201d[5]<\/a>. In
\nthe appeal, one of the questions raised was weather the court should grant an
\norder preventing the parties or their legal advisers to make any comment in the
\nmedia without the leave of the court.<\/p>\n

It was clarified that any judgement made
\nin chambers is it normally considered a public document and it is not
\nconfidential unless stated otherwise.<\/p>\n

The judge also stated: <\/p>\n

\n

\u201d The professionalism and sense of duty to legal advisers who conduct litigation of this nature should mean that the courts are able to rely on the legal advisers to exercise great self-restraint when making comment to the press\u201d[6]<\/a><\/p>\n<\/blockquote>\n

The above comment highlights that because
\nthe comments on social media are instantaneous, and because they are addressed
\nto the wider public, it is easy to result in regulatory and ethical breaches
\nwhen solicitors communicate on social media. Social media is very risky and
\nneeds to be handled with care as it could lead to serious consequences such as
\nstriking off. SRA still considers a regulatory breach the fact that solicitors
\npost, after hours, unethical comments and using their personal accounts.<\/p>\n

Caselaw is also important regarding duties
\nof the court and society. In case, Bolton v Law Society[7]<\/a>, where
\na solicitor misappropriated funds, Sir Thomas Bingham said\u201d Any solicitor who is shown to have
\ndischarged his professional duties with anything less than complete integrity, probity
\nand trustworthiness must expect severe sanctions to be imposed upon him by the
\nSolicitors Disciplinary Tribunal\u201d[8]<\/a>. Lawyers
\nowe a duty to officers of the court and a duty to society as to uphold the rule
\nof law by ensuring the best legal advice and representation is accessible to
\nevery client.<\/p>\n

High ethical standards are also contained the Legal Services Act
\n2007 S 1(3)\u201d professional principles\u201d[9]<\/a> an example is \u201c(a)the
\nauthorized persons should act with independence and integrity\u201d[10]<\/a>. All of these go hand in
\nhand with social media. <\/p>\n

SRA Code of Conduct and Social Media<\/h3>\n

The
\nSRA is the regulatory body for users of legal services and it focuses on the protection
\nof consumer interests and the general public of England and Wales. The SRA is
\nsplit into: SRA principles, which define the ethical and professional standards
\nthat is expected of law firms – ten Principles which are mandatory ; and SRA
\nCode of Conduct- which is divided into five sections, subsequently divided into
\nfifteen chapters known as outcomes which are also mandatory that set out \u201cwhat
\nfirms and individuals are expected to achieve in order to comply with the
\nrelevant Principles\u201d [11]<\/a> and
\nIndicative Behaviors, to see guidance from SRA, that decide if an outcome has
\nbeen achieved in compliance with the principles, non-mandatory. <\/p>\n

The Principles that apply to social media are: Principle 2: Act with integrity; Principle 3 – You must not allow your independence to be compromised; Principle 4: Act in the best interest of each client; Principle 6- Behave in a way that maintains the trust of the public places in you and in the provision of legal services.[12]<\/a><\/p>\n

Principle 2 and 3 are the easiest to be
\nbreached through social media. Also, to note \u201cwhere two or more principles conflict,
\nthe one which best serves the public interest takes precedent\u201d[13]<\/a><\/p>\n

The Outcomes that apply to social media:
\nChapter 1- client care; Chapter 4-confidentiality and disclosure; Chapter
\n8-publicity; Chapter 11-relations with third parties.[14]<\/a><\/p>\n

Chapter 1- client care, looks at the
\nindividual needs of the client. Example of outcomes: \u201cO(1.1) you treat your
\nclients fairly; O(1.2) you provide services to your clients in a manner which
\nprotects their interests in the matter, subject to the proper administration of
\njustice\u201d7 <\/p>\n

Chapter 4- Confidentiality and Disclosure,
\nlooks at protecting the confidential information of the client and the
\ndisclosure of material information to clients. A great example is the \u201cO(4.1)
\nyou keep the affairs confidential unless disclosure is required or permitted by
\nlaw or the client consents.\u201d<\/p>\n

Chapter 8- Publicity, looks at making sure
\nthe information that firms advertise are not misleading and sufficiently
\ninformative in order for clients to make an informed decision. Outcome O(8.1)
\nis another great example \u201cyour publicity in relation to your firm or in-house
\npractice or for any other business is accurate and not misleading, and is not
\nlikely to diminish the trust the public places in you and in the provision of
\nlegal services\u201d<\/p>\n

Chapter 11:Relations with third parties,
\nlooks at making sure not to take advantage of third parties and act in a manner
\nwhich promotes the proper operation of 
\nthe legal system.<\/p>\n

Indicative behaviors that can apply to
\nsocial media: IB(1.1),IB(1.9) IB(1.2), IB(1.12), IB(1.18), IB(1.28),(10.2)and
\nother.<\/p>\n

Example of outcomes and principles breaches and how they apply
\nto social media. <\/p>\n

Paul receives an email from a fellow solicitor making a
\nderogatory comment about his client\u2019s ethnicity, a client that they all share. This
\nis a classic breach of Code of Conduct, more specifically Principle 2: Act with
\nintegrity; Principle 6- Behave in a way that maintains the trust the public
\nplaces in you and in the provision of legal services; Outcome (1.1)
\nyou treat your clients fairly; Outcome (4.1) You keep the affairs of clients
\nconfidential unless disclosure is required or permitted by law or the client
\nconsents; Indicative Behaviour (1.1)<\/p>\n

Anna receives a LinkedIn invitation from one of her clients and
\nshe is a divorce lawyer. Apart from Principle 2 and Outcome (4.1) that is being
\nbreached, Principle 4: Act in the best interest of each client is added. <\/p>\n

Posting information on the firm\u2019s website that it is a
\nmultinational organisation and has a 99% success rate when instead it is quite
\nsmall and no cases have been won by any solicitor, this constitutes a breach of
\nOutcome(8.1) as it is misleading the public.<\/p>\n

The hope for the
\nfuture is that the SRA will publish some guidelines with regards to social
\nmedia like BSB has done for their barristers (CD 3- honesty and integrity,CD-5
\nnot to behave in a way which is likely to diminish the trust and confidence of
\nthe public, CD8- not to unlawfully discriminate) as this shall undoubtedly
\nraise the awareness of how easy it is to breach the Code of Conduct.[15]<\/a><\/p>\n

In
\nconclusion, an ethical lawyer is a person that obeys and uses the law in order
\nto help their clients. If in doubt of how to use social media, they should look
\nat common law, statute and SRA Code of Conduct. There is a common belief that
\nsolicitors cannot really understand the risks of social media in or outside
\nwork and this dilemma will continue until further guidance can be given.<\/p>\n

Bibliography<\/h3>\n

Table of cases:<\/p>\n