The ethical dilemmas
faced by solicitors when using social media in relation to SRA Code of Conduct
Introduction
Law
Society has defined social media “as websites and applications that enable
users to create and share content or to participate in social networking”[1].With
the passing of time, social media has become indispensable to the law
environment. No matter how indispensible though, it is still quite new within
the legal profession, and as such, represents ethical dilemmas for solicitors in
relation to Solicitors Regulation Authority.
“The 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.”[2]
The
above quote by Mena Ruparel and Richard Burnham will be discussed in this essay
in comparison with SRA Code of Conduct by touching on the following subjects: social
media in the legal profession, how ethics applies to social media and the SRA
Code of Conduct.
Social media in the legal profession
When
social media was born, it was used only as means of communication. Only after
year 2011, the businesses found use for social media. Today’s impression is,
that if a firm is not online, it is not trustworthy. Platforms of social media
include: The firm’s website, LinkedIn, Facebook, YouTube and other. As advised by
Mena, social media is used in two ways: as a “marketing tool for a firm” and as
“a marketing tool for an individual solicitor.”[3]
Firstly, when social media is used as a
marketing tool for a firm, the firm is promoted to the general public, such as
outlining the firm’s objective, highlighting their services and fees, their
contact address, and so on. Secondly, when used as a marketing tool for an individual
solicitor, it is used for the promotion of individual services. Sometimes,
without even realizing it the solicitors may end up, unknowingly, promoting the
firm also just by working with that specific firm. Similarly, individual
solicitors may use social media only for personal reasons without the
profession in mind. Advisable is to keep the professional and personal accounts
separate. In that way, they would get the opportunity to think twice whether it
is worth posting.
This
next paragraph will outline the key benefits and risks of the social media. The
main benefit of social media is the little or no cost of advertising a law
practice, contrary to traditional advertising routes. This goes very well with
the smaller firms because even they can afford marketing costs. Another
important benefit is that firms choose their own advertising information about
themselves rather than relying on third parties or word of mouth. Thirdly,
social media is available to everyone around the world without any geographical
limitations. This is a great opportunity for niche firms to advertise their
services globally. Lastly, clients expect a social media presence as would
constitute a forward thinking attitude and not having one would raise a red
flag.
Because the information on social media becomes
available very quickly to the public, this could constitute a massive risk, if
the statement were to be untrue or breaks the confidentiality of a client and
either the firm or the individual could be made liable under Outcome(8.1)of SRA
Code of Conduct, “your publicity in relation to your firm or in-house practice
or for any other business is accurate and not misleading, and is not likely to
diminish the trust the public places in you and in the provision of legal
services”[4]. Another
serious risk would be the breach of regulatory principles, such as, to act with
integrity or behave in a way that maintains the trust the public places in you
and in the provision of legal service. All of these would bring disciplinary
proceeding from SRA.
From a firm’s perspective, the risk is
lower compared to the individual solicitor’s risk. This is because there are
more people involved in the decision of making something public on their
website and it is more regulated. The individual solicitor’s thought process is
his own and if rushed to publish an opinion, it presents riskier than such of a
firm. The firms can only do so much as to save their solicitors from not using
social media in the workplace but outside of the working hours the solicitors
still represent a risk to the firm.
Ethics and Social Media
Solicitors
still face ethical dilemmas when it comes to using social media during and
outside of working hours. This is because social media is still new to the
legal profession. As such, solicitors are not used to paying so much attention to
what they are posting and are not taking social media very seriously because,
in some of their opinions, there are really bad things happening in the world
and posting an advice to a colleague about a client he had, seems so small.
Also another thought of these reticent lawyers is that if they are off work it
does not really count as they are off to be private citizens.
Lord Woolfe, in the case Hodgson v
Imperial Tobacco Ltd [1998]in the Court of Appeal (Civil Division), said parties
should be entitled to have their problems being dealt in court without “improper
interference with the course of justice”[5]. In
the appeal, one of the questions raised was weather the court should grant an
order preventing the parties or their legal advisers to make any comment in the
media without the leave of the court.
It was clarified that any judgement made
in chambers is it normally considered a public document and it is not
confidential unless stated otherwise.
The judge also stated:
” 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”[6]
The above comment highlights that because
the comments on social media are instantaneous, and because they are addressed
to the wider public, it is easy to result in regulatory and ethical breaches
when solicitors communicate on social media. Social media is very risky and
needs to be handled with care as it could lead to serious consequences such as
striking off. SRA still considers a regulatory breach the fact that solicitors
post, after hours, unethical comments and using their personal accounts.
Caselaw is also important regarding duties
of the court and society. In case, Bolton v Law Society[7], where
a solicitor misappropriated funds, Sir Thomas Bingham said” Any solicitor who is shown to have
discharged his professional duties with anything less than complete integrity, probity
and trustworthiness must expect severe sanctions to be imposed upon him by the
Solicitors Disciplinary Tribunal”[8]. Lawyers
owe a duty to officers of the court and a duty to society as to uphold the rule
of law by ensuring the best legal advice and representation is accessible to
every client.
High ethical standards are also contained the Legal Services Act
2007 S 1(3)” professional principles”[9] an example is “(a)the
authorized persons should act with independence and integrity”[10]. All of these go hand in
hand with social media.
SRA Code of Conduct and Social Media
The
SRA is the regulatory body for users of legal services and it focuses on the protection
of consumer interests and the general public of England and Wales. The SRA is
split into: SRA principles, which define the ethical and professional standards
that is expected of law firms – ten Principles which are mandatory ; and SRA
Code of Conduct- which is divided into five sections, subsequently divided into
fifteen chapters known as outcomes which are also mandatory that set out “what
firms and individuals are expected to achieve in order to comply with the
relevant Principles” [11] and
Indicative Behaviors, to see guidance from SRA, that decide if an outcome has
been achieved in compliance with the principles, non-mandatory.
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]
Principle 2 and 3 are the easiest to be
breached through social media. Also, to note “where two or more principles conflict,
the one which best serves the public interest takes precedent”[13]
The Outcomes that apply to social media:
Chapter 1- client care; Chapter 4-confidentiality and disclosure; Chapter
8-publicity; Chapter 11-relations with third parties.[14]
Chapter 1- client care, looks at the
individual needs of the client. Example of outcomes: “O(1.1) you treat your
clients fairly; O(1.2) you provide services to your clients in a manner which
protects their interests in the matter, subject to the proper administration of
justice”7
Chapter 4- Confidentiality and Disclosure,
looks at protecting the confidential information of the client and the
disclosure of material information to clients. A great example is the “O(4.1)
you keep the affairs confidential unless disclosure is required or permitted by
law or the client consents.”
Chapter 8- Publicity, looks at making sure
the information that firms advertise are not misleading and sufficiently
informative in order for clients to make an informed decision. Outcome O(8.1)
is another great example “your publicity in relation to your firm or in-house
practice or for any other business is accurate and not misleading, and is not
likely to diminish the trust the public places in you and in the provision of
legal services”
Chapter 11:Relations with third parties,
looks at making sure not to take advantage of third parties and act in a manner
which promotes the proper operation of
the legal system.
Indicative behaviors that can apply to
social media: IB(1.1),IB(1.9) IB(1.2), IB(1.12), IB(1.18), IB(1.28),(10.2)and
other.
Example of outcomes and principles breaches and how they apply
to social media.
Paul receives an email from a fellow solicitor making a
derogatory comment about his client’s ethnicity, a client that they all share. This
is a classic breach of Code of Conduct, more specifically Principle 2: Act with
integrity; Principle 6- Behave in a way that maintains the trust the public
places in you and in the provision of legal services; Outcome (1.1)
you treat your clients fairly; Outcome (4.1) You keep the affairs of clients
confidential unless disclosure is required or permitted by law or the client
consents; Indicative Behaviour (1.1)
Anna receives a LinkedIn invitation from one of her clients and
she is a divorce lawyer. Apart from Principle 2 and Outcome (4.1) that is being
breached, Principle 4: Act in the best interest of each client is added.
Posting information on the firm’s website that it is a
multinational organisation and has a 99% success rate when instead it is quite
small and no cases have been won by any solicitor, this constitutes a breach of
Outcome(8.1) as it is misleading the public.
The hope for the
future is that the SRA will publish some guidelines with regards to social
media like BSB has done for their barristers (CD 3- honesty and integrity,CD-5
not to behave in a way which is likely to diminish the trust and confidence of
the public, CD8- not to unlawfully discriminate) as this shall undoubtedly
raise the awareness of how easy it is to breach the Code of Conduct.[15]
In
conclusion, an ethical lawyer is a person that obeys and uses the law in order
to help their clients. If in doubt of how to use social media, they should look
at common law, statute and SRA Code of Conduct. There is a common belief that
solicitors cannot really understand the risks of social media in or outside
work and this dilemma will continue until further guidance can be given.
Bibliography
Table of cases:
- Bolton v Law Society [1994] 1 WLR 512
- Hodgson v Imperial Tobacco Limited[1998] 1 WLR 1056
Tables of Legislation:
- Legal Services Act 2007 <https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=21&crumb-action=replace&docguid=IAD41BDB192CD11DCA313C75C86B9113B> accessed 01 December 2018
Secondary Sources:
- Ruparel M and Burnham R, ‘How to be an Ethical Solicitor’, Ch 7: Ethics and Social Media’ (Bath Publishing 2017,136)
- SRA Handbook , SRA Code of Conduct 2011,Outcome(8.1). <http://www.sra.org.uk/solicitors/handbook/code/content.page > accessed 1 December 2018
- The Bar Standards Board, February 2017 < https://www.barstandardsboard.org.uk/media/1821624/bsb_social_media_guidance_pdf.pdf> accessed 1 December 2018
- The Law Society ‘What is social media’ (27 June 2018) <https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/> accessed 1 December 2018
[1] The Law Society ‘What is social media’ (27
June 2018) <https://www.lawsociety.org.uk/support-services/advice/practice-notes/social-media/>
accessed 1 December 2018.
[2]
M Ruparel and R Burnham, ‘How to be an
Ethical Solicitor’, Ch 7: Ethics and
Social Media’ (Bath Publishing 2017,136).
[3] Ibid.
[4] SRA
Handbook -SRA Code of Conduct 2011,Outcome(8.1)<http://www.sra.org.uk/solicitors/handbook/code/content.page > accessed 1
December 2018.
[5] Hodgson v Imperial Tobacco
Limited[1998] 1 WLR 1056.
[6] Ibid.
[7] Bolton v Law Society
[1994] 1 WLR 512.
[8] Ibid.
[9]Legal Services Act 2007 <https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=21&crumb-action=replace&docguid=IAD41BDB192CD11DCA313C75C86B9113B>
accessed 01 December 2018.
[10] Ibid.
[11] Ibid SRA.
[12] Ibid.
[13] Ibid 2.2 SRA
Principles-notes.
[14] Ibid SRA.
[15]The Bar Standards Board, February 2017 < https://www.barstandardsboard.org.uk/media/1821624/bsb_social_media_guidance_pdf.pdf>
accessed 1 December 2018.
Updated 21 March 2026
Update note: This article was written in 2018 and contains significant outdated material that readers must be aware of.
SRA Standards and Regulations 2019: The most important development is that the SRA Code of Conduct 2011 (the SRA Handbook), which forms the entire regulatory framework discussed in this article, was replaced by the SRA Standards and Regulations, which came into force on 25 November 2019. The 2011 Code’s structure of ten mandatory Principles, Outcomes, and Indicative Behaviours no longer applies. The new framework separates the SRA Code of Conduct for Solicitors, RELs and RFLs from the SRA Code of Conduct for Firms. The number of Principles changed: there are now seven Principles (not ten), and the Outcomes/Indicative Behaviours structure has been replaced by a shorter, more principles-based set of rules. All specific Outcome and Principle references in this article (e.g. Outcome 8.1, Principle 2, Principle 3, Principle 4, Principle 6, Chapter 1, Chapter 4, Chapter 8, Chapter 11, and the Indicative Behaviours cited) refer to provisions that no longer exist in their stated form.
SRA social media guidance: The article notes that the SRA had not published specific social media guidance and expresses hope that it would do so. The SRA has since published guidance on the use of social media, addressing how the Standards and Regulations apply in this context.
What remains broadly accurate: The general ethical principles discussed — integrity, confidentiality, not misleading the public, maintaining public trust, and duties to the court — remain relevant obligations under the 2019 framework, even though the specific rule references have changed. The cases cited (Bolton v Law Society [1994] and Hodgson v Imperial Tobacco Ltd [1998]) remain good law. The Legal Services Act 2007 remains in force. The underlying analysis of the risks social media poses for solicitors remains relevant in substance.
Readers should consult the SRA Standards and Regulations 2019 directly on the SRA website for the current regulatory framework, and should not rely on any specific Outcome, Principle number, or Chapter reference in this article without cross-checking against the current rules.
