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SRA Principles and Code of Conduct in Social Media

Info: 3449 words (14 pages) Law Essay
Published: 4th Dec 2020

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Social media has become one of the most important mediums of communication throughout the world. The use of social media (hereafter referred to as SoMe) within the legal profession is a relatively new form of communication[1] and has brought with it a myriad of ethical dilemmas. As expressed by Jan L. Jacobwitz; ‘Social media has created communities and its own culture’ [2]viewing SoMe as a separate culture is intriguing, as it emphasises the caution one must show when visiting this new territory. The benefits of SoMe are undeniable[3], for one it enables lawyers to be on par with their clients, providing an informal platform for communication. It offers an affordable method of marketing reaching a large audience[4], but on the other hand, it presents vast challenges especially in relation to ethical responsibilities as lawyers navigate the virtual minefield of SoMe[5].

The SRA Principles and Code of Conduct are mandatory requirements, as such there is no way around them, and it can have detrimental effects to violate these[6]. This begs the question of how the influx of SoMe and all the pitfalls within, should be considered in relation to the SRA Principles and the Code of Conduct. Firstly, one must identify the areas that are likely to provide the highest risk of ethical violations within the SRA. The most blatant violation of the SRA Codes is that of confidentiality and disclosure[7], it might seem rather obvious that tweeting personal information about a client’s case would violate this code. However, viewing the influx of SoMe in line with the thoughts of Jan L. Jacobwitz[8] as the influx of a new culture, it would only seem natural that one would need to understand the rules and customs applying to this culture in order to successfully integrate within.  In order to avoid sharing inappropriate details on SoMe, we must address how and why we interact as we do within this new culture.  Referencing Courtney Seiter[9], it is deeply rooted within human nature to share information which is triggered by SoMe. When sharing information with others on SoMe, we achieve an emotional satisfaction which stems from the innate joy we experience in self portrayal, as such SoMe appeals to our ego[10]. This may provide an explanation for why some lawyers exaggerate or disclose too much information on SoMe, essentially chasing virtual recognition and popularity to boost their ego. Section 8.8 of the SRA Codes of Conduct relate to this issue as you must …ensure that any publicity in relation to your practice is accurate and not misleading’[11].

The power of SoMe is demonstrated in a case described by Herring[12];relating to the tweet of a solicitor at the firm Baker Small[13]; after winning a case resulting in their client (a council) not having to provide certain services to a group of children with special needs. Following this win the company tweeted ‘Crikey, had a great “win”’[14] which sent the firm into a whirlwind of criticism from the public. The tweet was considered as being insensitive in the context of the case and the firm effectively lost contracts over this tweet and the subsequent public reaction[15]. The SRA reprimanded the firm and ordered them to pay £600 cost[16], the SRA deemed that the solicitor had not acted in a way that maintains the public trust in him[17]. Ultimately these tweets where picked up by the public who reported their complaints to the SRA, showcasing the strength of the public on SoMe. It can further be discussed whether tweeting of a glorious win, effectively over children with special needs, would be deemed as an act of integrity.

A definition of ‘integrity is provided in the case of Wingate v SRA[18] by Mr Justice Holman; ‘...the word "integrity" in a professional code of conduct means something more than mere honesty. It involves adherence to the ethical standards of one's own profession...’[19] Mr Justice Holman seems to define integrity as more than mere honesty, making honesty the first, but not only, requisite for acting with integrity, this definition has been adopted by the SRA[20] as it is expected that all solicitors act with integrity to maintain the public trust[21].

The Baker Small case[22] illustrates the power of SoMe and is on point with Weltge and McKenzie-Harris[23] asserting that SoMe is a minefield of potential ethical violations. As the firm celebrated their victory on twitter, it was subsequently evident that the public moral on SoMe plays a huge role, especially in cases with a strong ethical dimension. Moreover, it illustrates the importance of understanding the broad audience of SoMe[24] being international and intercultural in the true sense of the words. Lawyers communicating on SoMe must ensure to follow solid policies and procedures as recommended by the SRA[25] as virtual communication can quickly spin out of control.

When operating with the term integrity it is impossible to not consider that of dishonesty as the two are closely linked, as established by Mr Justice Holman[26]. Clearly one cannot have acted with integrity if being dishonest, so what is the view on dishonesty in a legal context. In the Bolton case[27] Lord Bingham stated that dishonesty is the most serious breach of the SRA Codes, and Lawyers 'should discharge their professional duties with integrity, probity and complete trustworthiness'[28], anything less than this would be regarded as a serious breach[29]. This is of course challenged by the spontaneity and fast-moving pace of SoMe[30] and also the innate triggers of SoMe culture to achieve ‘likes’ and attention to your posts.

Another case defining dishonesty is that of Ivey v Genting Casinos[31], here the test for dishonesty was modified from the original test in Gosh[32], the Ivey test changes the second limb of the Gosh test, to that of the test previously known in civil law, from the cases of Royal Brunei Airlines[33] and Barlow Clowes International[34]. Now the test for dishonesty applies broadly across civil and criminal law. In the Ivey test the defendant is judged on the facts as he believed them to be and whether what the defendant did was dishonest according to the ordinary standards of reasonable, honest people, it is not necessary for the individual to know that he was being dishonest by the standards of reasonable, honest people[35].

Lawyers are held accountable to the SRA Principles and Code of Conduct both in their professional and personal use of SoMe if they can be identified as a solicitor. Therefore, lawyers must streamline their personal appearance on SoMe to conform with their professional responsibilities. Mark Zuckerberg has expressed how you importantly have one identity, as having two would be a lack of integrity[36], following this it is no longer possible to have a separate work identity to your private identity, with the influx of SoMe these have become intertwined[37]. Consequentially, even in your personal use of SoMe you will have to be vary of the information and opinions you post not to breach any SRA Principles and Codes. An example is that of Aysh Chaudhry, a trainee at Clifford Chance, who after the Charlie Hebdo attack posted a 20 min YouTube rant[38], his case was considered by the SRA who subsequently decided that as he was a trainee-solicitor he was not yet bound by the SRA codes, however had he been qualified he would have been accountable for his actions and potential violations of the SRA codes. This was the case for a Yorkshire solicitor who was suspended from practising for 18 months[39] following offensive twitter rants showcasing hostility towards different religions. She tweeted from her personal account but as this account identified her as a solicitor, she still had a duty to act in accordance with the SRA Codes and Principles.

Conclusively it is only fair to say that SoMe does in fact represent a virtual minefield of ethical violations as expressed by Weltge and McKenzie-Harris[40], navigating through the virtual landscape of SoMe as a legal professional, you must show utmost care to not breach any of the SRA Codes and Principles. This has proven to be intrinsically complex and at times SoMe can seem incompatible with the legal profession. However, it is widely agreed that SoMe represents enormous benefits to the legal profession[41] and therefore it is up to the legal profession to find ways of eliminating the negatives of SoMe and enhancing the many prospects it brings to the practise of law.  

Bibliography

Primary sources

Unattributed Sources:

  • Solicitors Regulation Authority, SRA Code of Conduct, 2019
  • Solicitors Regulation Authority, Use of Social Media and Offensive Communications, 2019
  • The Law Society, Practice Guide on Social Media, 2019
  • The law Society, Ethics in Law, 2019

Table of Cases:

  • Bolton v Law Society [1994] CA (Civ Division) 1 WLR 512
  • Wingate v SRA [2018] EWCA Civ 366
  • Ivey v Genting Casinos [2017] UKSC 67
  • R v Ghosh [1982] QB 1053
  • Royal Brunei Airlines v. Tan [1995] 2 AC 378
  • Barlow Clowes International v Eurotrust International [2005] UKPC 37 

Secondary Sources

Books:

  • Carolyn Elefant, Nicole Black, Social media for Lawyers: The Next Frontiers, (American Bar Association 2010)
  • Jonathan Herring, Legal Ethics, (2nd Edition, Oxford University Press 2017)

Journal articles:

  • Jan L Jacobowitz, 'Lawyers Beware: You Are What You Post - The Case for Integrating Cultural Competence, Legal Ethics, and Social Media' (2014) 17 SMU Sci & Tech L Rev 541
  • Jessica Weltge and Myra McKenzie-Harris, ‘‘The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and Avoid the Pitfalls of Modern Technology” (American Bar Association Section of Labor and Employment Law Ethics & Professional Responsibility Committee Midwinter Meeting, 24 March 2017)
  • Kylie Burns and Lillian Corbin, 'E-Professionalism: The Global Reach of the Lawyer's Duty to Use Social Media Ethically' (2016) 2016 J Prof Law 153
  • Michael E Jr Lackey and Joseph P Minta, 'Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging' (2012) 28 Touro L Rev 149

Websites:


[1] Burns, K., Corbin, L. E-Professionalism: The Global Reach of the Lawyer's Duty to Use Social Media Ethically (2016) Journal of the Professional Lawyer, 153-172

[2] Jacobowitz, J. L. (2014). Lawyers beware: You are what you post the case for integrating cultural competence, legal ethics, and social media. SMU Science and Technology Law Review, 17(4), 541-580

[3] Jessica Weltge and Myra McKenzie-Harris ‘The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and avoid the Pitfalls of Modern Technology.’ American Bar Association, Ethics & Professional Responsibility Committee Midwinter Meeting, March 24, 2017

[4] The Law Society: Practice Guide on Social Media https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/ accessed December 16 2019

[5] Jessica Weltge and Myra McKenzie-Harris ‘The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and avoid the Pitfalls of Modern Technology.’ American Bar Association, Ethics & Professional Responsibility Committee Midwinter Meeting, March 24, 2017

[6] SRA Code of Conduct 2019

[7] SRA Code of Conduct 2019, section 6.3

[8] Jacobowitz, J. L. (2014). Lawyers beware: You are what you post the case for integrating cultural competence, legal ethics, and social media. SMU Science and Technology Law Review, 17(4), 541-580

[9] Courtney Seiter, 7 Social Media Psychology Studies that Will Make Your Marketing Smarter, https://buffer.com/resources/social-media-psychology-studies-smarter-marketing accessed December 16 2019

[10] Courtney Seiter, 7 Social Media Psychology Studies that Will Make Your Marketing Smarter, https://buffer.com/resources/social-media-psychology-studies-smarter-marketing accessed December 16 2019

[11] SRA Code of conduct 2019

[12] Herring 2017

[13] Amelia Gentleman, Fury as law firm boasts of 'great win' over parents of vulnerable children https://www.theguardian.com/law/2016/jun/13/baker-small-law-firm-parents-tweets-children-special-educational-needs accessed December 16 2019

[14] Herring, 2017

[15] Herring 2017

[16] John Hyde, Yorkshire solicitor suspended for Twitter rants https://www.lawgazette.co.uk/news/yorkshire-solicitor-suspended-for-twitter-rants/5067187.article accessed 16 December 2019

[17] SRA principle 2

[18] Wingate v SRA [2018] EWCA Civ 366

[19] Wingate v SRA [2018] EWCA Civ 366

[20] SRA Code of Conduct

[21] SRA Warning notice, Offensive communication

[22] Amelia Gentleman, Fury as law firm boasts of 'great win' over parents of vulnerable children https://www.theguardian.com/law/2016/jun/13/baker-small-law-firm-parents-tweets-children-special-educational-needs accessed December 16 2019

[23] The Minefield of Social Media and Legal Ethics, 2017

[24] Michael E Jr Lackey and Joseph P Minta, 'Lawyers and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging' (2012) 28 Touro L Rev 149

[25] The Law Society: Practice Guide on Social Media https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/ accessed 16 December 2019

[26] Wingate v SRA [2018] EWCA Civ 366

[27] Bolton v Law Society [1994] CA (Civ Division) 1 WLR 512

[28] Bolton v Law Society [1994] CA (Civ Division) 1 WLR 512

[29] Bolton v Law Society [1994] CA (Civ Division) 1 WLR 512

[30] The Law Society: Practice Guide on Social Media https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/ accessed 16 December 2019

[31] Ivey v Genting Casinos [2017] UKSC 67

[32] R v Ghosh [1982] QB 1053

[33] Royal Brunei Airlines v. Tan [1995] 2 AC 378

[34] Barlow Clowes International v Eurotrust International [2005] UKPC 37

[35] Ivey v Genting Casinos [2017] UKSC 67

[36] Jared Newman, Facebook Comments Expose a Flaw in Zuckerberg's Vision, TECHNOLOGIZER), http://www.technologizer.com/2011/03/07/facebook-comments-zuckerberg-vision/ accessed 16 December 2019

[37] Miguel Helft, Facebook, Foe of Anonymity, Is Forced to Explain a Secret, N.Y.TIMES, available at http://www.nytimes.com/2011/05/14/technology/l 4facebook.html?_r=0. accessed 16 December 2019

[38] Camilla Turner, Top law firm employee's video diatribe against 'apologetic' Muslims in wake of Charlie Hebdo attack https://www.telegraph.co.uk/news/uknews/law-and-order/11354615/Top-law-firm-employees-video-diatribe-against-apologetic-Muslims-in-wake-of-Charlie-Hebdo-attack.html accessed 16 December 2019

[39] John Hyde, Yorkshire solicitor suspended for Twitter rants https://www.lawgazette.co.uk/news/yorkshire-solicitor-suspended-for-twitter-rants/5067187.article accessed 16 December 2019

[40] Jessica Weltge and Myra McKenzie-Harris ‘The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and avoid the Pitfalls of Modern Technology.’ American Bar Association, Ethics & Professional Responsibility Committee Midwinter Meeting, March 24, 2017

[41] The Law Society: Practice Guide on Social Media https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/ accessed 16 December 2019

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