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Handling Social MediaPLEA5e
Fernando Aguilar de Carvalho (Uría Menéndez)
Nigel Boardman (Slaughter and May)
Clare Corke (Corrs Chambers Westgarth)
Shyam Radia (Sunbird Group)
17 November 2016
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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)
What is social media?
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Social Media and
Law Firms
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Social media principles for the legal professionThe 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.
Independence Integrity Confidentiality Policy Responsibility Maintaining
public confidence
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Reasons to use social media
o Positioning and brand reinforcement
o Opportunity to differentiate
o Attracting talent
o Knowledge management
o Media information
o Keeping in touch with alumni
o Where stakeholders are found
o Where references are obtained
o Complementary to other means of
communication: newsletters, events,
publications, etc.
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Using social media for advertising and recruiting
OPPORTUNITIES
•By-pass traditional, expensive forms of advertising
•Connect with people when they are on the move
•Deliver specific content to people who are interested in it
•Useful tool for recruitment (Linked In)
RISKS
•Misleading and deceptive conduct
•Discrimination
•Privacy Issues
•Responsibility for other people’s posts
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Practical pointers: navigating social media
How to mitigate the risks
Create a policy on use
of social media
Keep up to date on
technological changes
Teach your employees
about social media best
practice and pitfalls
Communicate as clearly as
possible
Clarify that information
given on social media is not legal advice
and cannot be relied upon for that purpose
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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
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Duty
of
confi
denti
ality Risk: Inadvertently
disclosing client information
E.g. Lawyer tweets that they are in a certain location, either through text or geotagging may unintentionally disclose that they are working with an identifiable client and breach duty of confidentiality
Inadvert
ent
reta
iner Risk: Creating
unintended solicitor-client relationships
E.g. Lawyer’s Facebook friend posts a legal/quasi-legal question on lawyer’s Facebook wall any answer posted by the lawyer may be construed as legal advice for which the lawyer may become liable D
uty
to t
he a
dm
inis
trati
on o
f ju
stic
e Risk: Bringing the law into disrepute
E.g. Expressing opinions on merits of potential/current legal proceedings may interfere in the administration of justice
Adverse/demeaning comments about other lawyers may diminish public confidence in the administration of justice
Duty
not
to c
om
munic
ate
w
ith o
ther
law
yer’
s client Risk: Dealing directly
with another lawyer’s client
E.g. Lawyer sends a Facebook “friend” request to another lawyer’s client to gain access to their Facebook page or accepts a “friend” request from a person whom the lawyer knows to be another lawyer’s client unethical conduct
Giving advice on social media: ethical risk areas
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What to watch out for: Other risk areasDefamation
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.
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In Mohareb v Palmer, Palmer posted
posters with inflammatory comments
towards Mohareb (including the
suggestion that Mohareb “may or may
not be related to Satan” on a
Facebook page. A Deed of Settlement
and Release was entered into which
required Palmer to post public
apologies on the Facebook page.
Palmer removed the apologies several
times. The New South Wales District
Court required Palmer to pay his costs
($14,721) due to non-compliance with
the Deed.
In Hockey v Fairfax Media Publications
Pty Limited, the Federal Court of
Australia held that twitter posts about
former treasurer Joe Hockey were
found to be defamatory.
Defamation
In US v Bank of America Corp, a
juror complained that the defence
had cyberstalked him on LinkedIn
after a first-year associate
unintentionally left an electronic
calling card recording his visit.
Columbia District Court of Appeal
held: rebuked the defence
lawyers, stating that while lawyers
were allowed to collect
information about jurors that was
available online, they were
prohibited from communicating
with jurors.
Breach of duty not to contact
other lawyer’s client
War stories: what not to do
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War stories: what not to do
In In the Matter of Peshek, Illinois
disciplinary tribunal recommended
that an assistant public defender
be disbarred after she discussed
her cases on her blog. She
breached her obligation of
confidentiality to her client and
made comments about the
judiciary that were prejudicial to
the administration of justice.
In In re Skinner Ga, Georgia
Supreme Court found that a lawyer
who revealed confidential
information about a former client
when responding to negative
online reviews by that client
should be subject to sanction.
Breach of confidentialityIn Gulliver Schools, Inc. & Anor v
Snay No. 3, Snay signed a
settlement agreement with
Gulliver, his former employer,
containing a non-disclosure clause.
Snay told his daughter who
published to her 1200 Facebook
friends: “Mama and Papa Snay won
the case against Gulliver. Gulliver
is now officially paying for my
vacation to Europe this Summer.
SUCK IT”. Florida District Court of
Appeal held: that Snay’s daughter’s
post was “impressive evidence” of
his breach. Ordered Snay to pay
back $80,000 to Gulliver.
Social media post as evidence
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War stories: what not to do
In Portugal, a trainee at a law firm
posted a photo on Facebook in which
some confidential documents were
visible.
In Texas, a lawyer requested a period
of leave due to the loss of his father
and the judge of the case found out
through Facebook that, in fact, he
was out partying.
In England, a judge was forced to
resign because of a Tweet about
matters related to some of his legal
cases
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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
/PowerPoint Presentation
© 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.
