1.1 Who should read this practice note?
All practitioners and practices interested in using, or currently using social media. This practice note may be particularly interesting to compliance officers and marketing professionals.
1.2 What is the issue?
Social media continues to be a popular and growing area. As such, it is important for the profession to keep up to date with developments in social media which present real opportunities if harnessed effectively.
The growth of the use of social media by clients may result in a corresponding expectation that the legal profession should also embrace it as part of its working practices.
Social media can offer many professional and personal benefits. Commercial benefits can arise from the ability to market products and materials as well as to communicate with a wide and/or targeted audience.
Social media activity is beneficial for engaging with clients and other professionals, for example through direct and immediate feedback from those who have used legal services, and can be used to allow greater access to legal information and resources.
It also provides greater opportunities for professional networking, and enables geographical barriers to be broken down, for example setting up a profile on LinkedIn facilitates global access to your profile.
Finally, it can be used to debate, share opinions and share experiences by 'posting' or commenting in public spaces.
Alongside the possible benefits, it is important to be aware of the potential risks involved. One of the fundamental considerations that those participating in social media activity should take into account is the potential blurring of the boundaries between personal and professional use, and the importance of recognising that the same ethical obligations of professional conduct apply in an online environment.
The increased use of mobile devices (especially smartphones) which provide access to social media accentuates many of those risks. For instance, by easily facilitating instantaneous responses.
The purpose of this practice note is to increase understanding of social media in the profession and provide guidance to individuals and practices engaged in, or considering whether to engage in, social media activity. It also includes two case studies which demonstrate in different ways how social media is being used within the profession.
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2 What are social media?
Social media is defined as websites and applications that enable users to create and share content or to participate in social networking.
Social media are web-based and mobile technologies that turn communication into active dialogue. There are many different types of social media channels, which attract specific audiences for different purposes. These include:
- forums and comment spaces on information-based websites, for example BBC Have Your Say, the Law Society Gazette or Roll on Friday
- social networking websites such as Facebook and LinkedIn
- video and photo sharing websites such as Flickr, Instagram and YouTube
- weblogs, including corporate and personal blogs
- micro-blogging sites such as Twitter and Tumblr
- forums and discussion boards such as Yahoo! Groups or Google Groups
- online wikis that allow collaborative information sharing such as Wikipedia
- any other websites that allow individual users or companies to publishing or share content with other users.
Some channels may be more appropriate for a practice's or individual's business needs than others, particularly in relation to social networking. For further information see section 4 Online social networking
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3 Ethical obligations
The same ethical obligations that you adhere to professionally also apply to your conduct in an online environment.
You should read the terms and conditions of the social media provider to appreciate their application fully. For example, a user may relinquish ownership or grant extensive licences for the reproduction and use of posted content and account holder information.
You must ensure that before you participate in social media activity, and throughout, that you adhere to the principles (see SRA Principles in the Legal status box above).
A social media channel may allow a user to choose a unique name or 'handle'. It is important to consider that this does not guarantee anonymity, as the social media platform will hold the registration data of the individual, and there are other legal and technology tools available to trace the account holder.
3.1 The solicitor-client relationship
3.1.1 Previous or current online relationship
If you first form a relationship with a client through social media there is no reason for you and your client to cease interacting via social media.
However, if you continue to have an online relationship with an existing client or form an online relationship with a client, you should consider whether you might breach any of the principles or requirements in the SRA Code.
- Two examples
- It may be that a client contacts you via LinkedIn and you become 'connected' with that client. You must take into account chapter 4 on confidentiality and disclosure and whether simply being 'connected' with a client on LinkedIn, thus acknowledging that you have a link with that client, would result in a breach of any of the outcomes in this chapter. In this situation you should also think about chapter 1 on Client care and whether contact with a client via social media may affect your obligations to provide a proper standard of service.
- Completing an online biography/curriculum vitae with project names or details which could identify a client or client matter would result ina breach of the outcomes in chapter 4 on confidentiality.
3.1.2 No existing online relationship
Even if you do not have a relationship with clients via social media, you should take account of the fact that your presence on social media channels like weblogs and micro-blogging sites may inadvertently impact on your professional obligations towards your clients.
- For example: If you comment on Twitter that you are in a certain location at a certain time, you may unintentionally disclose that you are working with a client and breach outcome (4.1) in chapter 4 on Confidentiality and disclosure 'you must keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents'.
3.2 Posting comments and opinions
One benefit of using social media is the ability for professionals to share their experiences and opinions, as well as to engage in debate.
Unlike other more traditional forms of communication social media enables professionals, both nationally and internationally, to more easily interact with each other.
Usually this sort of engagement will encompass current issues, affairs and developments in the legal profession.
However, individuals are also able to post comments or opinions about clients, their cases and other legal professionals. You should consider that in doing so you may be breaching the requirements on client care, confidentiality, conflicts of interests and publicity in the SRA Code, and should exercise caution in this area.
- For example: You may be engaged in a general discussion about access to justice issues and, while posting a comment about your previous experiences, disclose information about a previous case you have worked on, thus breaching client confidentiality.
When thinking about whether to post comments and opinions of this nature you should take into account that, even if you do not contravene the requirements in the SRA Code in terms of confidentiality, conflict of interests and publicity, you could breach Principle 2 on acting with integrity.
Personal integrity is central to your role as a practitioner and must characterise all of your professional dealings. You should think about how your, or your practice's, image may be affected by any comments you make and the potential impact this may have on your professional standing.
- For example: You may be posting a comment about another legal professional on a social media site and intend to send the comment to one person but in fact respond to everyone connected to that social media site, so making your opinion public when you did not intend to.
You should also take account of the fact that posting comments and opinions of this nature might affect public trust and confidence in the legal profession, hence breaching Principle 6.
One misplaced comment or opinion from a legal professional may not only damage that individual's reputation (and their fitness or propriety as a regulated individual) but could reflect negatively on the legal profession more generally.
- For example: You may make an anonymous comment about a client or case of a personal nature on a social media site which may be picked up by the media and reported on.
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4 Online social networking
Social networking allows users to communicate with each other by creating profiles, 'posting' comments and opinions, connecting or forming 'links' with others on the site, joining different 'networks' and adding 'friends' or 'connections'.
4.1 Personal vs professional
Social networking sites are used both personally and professionally. It is often not clear where personal and professional boundaries lie and when your professional obligations start and end.
It may also be difficult at times to distinguish casual or informal interactions from more formal communication.
You must give proper consideration to the fact that the same professional ethical obligations apply to your conduct in 'online' and 'offline' environments. It is important that personal and professional uses are not confused, and the most appropriate social media channel is selected for your activity.
Even when you are using social media channels for personal use, you should consider whether you will be associated with activities which may be visible online and which, in the future, could be viewed by other professionals or clients.
You should be aware that information you share with contacts or friends online, or information posted about you by contacts or friends, may be accessible to a much wider audience than is intended.
The implications of this can be varied and may have the potential to reflect both positively and negatively on you:
For example: At a job interview you may be questioned about activities that you have carried out, or comments or opinions that you have publicised, in the past which the potential employer has found simply by searching for your name on the internet. Either:
- you may have displayed experience which is relevant or be viewed as an advantage to the role that you are applying for, so reflecting positively on you
- you may have made a comment, or expressed an opinion, that ultimately is viewed as contrary to the values of the organisation you are applying to work for.
You should regularly review the content of your personal social media channels, which will enable you to remove any information that you feel could reflect negatively on you or you do not feel comfortable with.
You may want to take into account the fact that some social media channels are more appropriate for a practice's or an individual's business needs than others, and consider whether to set out certain parameters as to which channels are most appropriate for your business.
You may approve certain channels for use, but stipulate additional scrutiny where the use of other channels is proposed.
4.2 LinkedIn and Twitter
LinkedIn and Twitter are social networking sites that are widely used and recognised by professionals.
LinkedIn is a business orientated social networking site which is primarily used for professional networking. It allows users to create professional profiles, build and maintain professional contacts and is a marketing tool for businesses. It is a global network with over 360m members.
Twitter is an online social networking and microblogging service that enables users to send and read small amounts of information called ‘Tweets’. A guide to doing business on Twitter can be found on the Twitter website.
4.3 Facebook, YouTube and Flickr
Other well known social networking channels such as Facebook, YouTube and Flickr may only have limited business use as they are more widely recognised as channels for personal use.
However, this does not mean that you should discount these channels as viable social media channels to be used professionally. For example, YouTube could be used to host a video for a business campaign.
Rather, these channels should be used with caution, for example if you make 'friends' with clients on Facebook, you should evaluate whether this may affect any of your ethical obligations (outlined above). Please note, this does not apply if a practice creates a business page as individuals can 'like' a business page but the page cannot make 'friends' with individuals.
4.4 Privacy settings
If you are intending to use any social networking site, you should review that site's privacy settings to enable you to control, and put restrictions on, who is able to access your information.
However, you should be aware that by adopting privacy settings this does not necessarily mean that the information you post on social media sites will be protected. Some sites are totally open to the public.
Both Twitter and Facebook have privacy settings and offer an explanation of how the privacy settings work. However, the default privacy settings for both Twitter and Facebook allow some information to be shared beyond an individual's contacts. As such, you as the user are responsible for actively adjusting the privacy settings of your account.
4.5 Practices adopting social media internally
Using social media internally could be both an efficient form of communication and an effective method of learning and development.
Corporate forums or weblogs for example may drive innovation and boost employee morale. Examples include Yammer or Tibbr.
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5 Benefits and risks of using social media
Several of the benefits and risks of engaging in social media activities have already been highlighted but set out below are some of the most significant benefits, and areas of social media activity which present the highest risk to you and your business.
Engaging in social media can be used to raise the profile, and general awareness, of yourself and your practice.
It provides an opportunity for you to determine what information is available online about you and your practice, rather than relying on third parties to do this for example through news articles.
You have an opportunity to shape the messages about you and focus on the areas of your practice that you would like promote.
5.1.2 Engagement with clients
Quantifying the benefits of engaging in social media activities is not always easy, but you should bear in mind that some clients may expect to be able to communicate via social media platforms.
Some clients may use social media channels, rather than email, as their main method of communication. The increased use of social media by clients could result in a corresponding expectation that these channels of communication should be available in relation to legal services. You must decide carefully how to incorporate social media into your communications with clients, remembering that you must be able, for instance, to maintain a complete record of instructions.
The lack of geographical barriers and constraints offers those engaging in social media activities the opportunity to reach a wider audience than would otherwise have been achievable via other more traditional forms of communication.
Social media activity could be an efficient marketing tool for promotion of you/your practice's legal services. For example an advert on a social media site has the potential to reach an extremely wide audience.
You should note that chapter 8 of the SRA Code requires that you take steps to ensure that publicity is not misleading and is sufficiently informative so that clients can make informed choices about the services they receive. You must also ensure that you are complying with any relevant statutory requirements and voluntary codes.
Having set up a social media channel, engaging with clients and other professionals via social media will incur costs. However, you will need to take the time to maintain any social media activity as an ongoing part of your business.
Costs might include staff time, paid advertising (for example, boosting posts on Facebook and Twitter), the cost of employing an outside expert to help with search engine optimisation and analytics or the costs of up-skilling your workforce in these areas, and the cost of social media management tools such as Hootsuite or Sprout Social.
The use of social media among legal professionals is extremely varied and, as detailed in section 2 What are social media?, there are many different types of media channels for different audiences with differing purposes.
In addition to the more general issues surrounding the personal and professional boundaries of social media activity discussed above, you should also bear in mind the following specific areas of risk.
The law of defamation allows persons who consider that their reputation has been, or may be harmed by statements made by others, to sue for damages or to prevent the making of those statements.
Defamation law can apply to any comments or opinions posted on social media sites. You may want to consider including this in your social media policy (outlined in section 6 below).
As already noted, social media activity presents challenges to compliance with the requirements set out in chapter 4 on Confidentiality and disclosure of the SRA Code.
Outcome (4.1) states that you must 'keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents'. The use of social media exposes you to the risk that confidential information may be inadvertently (or otherwise) disclosed, as illustrated in some of the examples above.
188.8.131.52 Logging out and password security
Given the wide-reaching and impactful nature of social media, it is important to ensure that the security measures protecting access to accounts are properly safeguarded - any client or member of the public will presume that messages from your account properly represent you (even if you have delegated use or maintenance of your account to others).
You must always ensure that you log out of social media sites, particularly if you share a machine with other colleagues. If you remain logged in your account can be viewed by another user, even if you turn off your machine or quit your browser.
5.2.3 Control over information
You should consider how information on social media channels is used and by whom. The speed at which information can be circulated, and the proliferation of that information, is something over which your practice will have little control. Similarly, even though you may attempt to remove any posted content, it is possible for others to take and retain screenshots of that content, and thereafter make it available.
184.108.40.206 Right to be forgotten
There is currently a debate about whether or not information is ever deleted from social media sites. Information published on social media is not always easily removable, particularly when this information comes from a third party. This is a point that has been controversial regarding Facebook.
Currently, both Twitter and Facebook have the following statements on this:
Twitter: 'You can also permanently delete your Twitter account. If you follow the instructions here your account will be deactivated and then deleted... After 30 days, we begin the process of deleting your account from our systems, which can take up to a week.'
Facebook: 'When you delete an account, it is permanently deleted from Facebook. It typically takes about one month to delete an account, but some information may remain in backup copies and logs for up to 90 days. You should only delete your account if you are sure you never want to reactivate it. Find instructions to delete your account'.
Although much of the information on social media sites will be public, some of it will not be (either as a result of privacy settings or because it is only available to selected users). You should consider that information on social media sites could be produced as evidence by either side in litigation or in a regulatory investigation into conduct.
220.127.116.11 Accuracy and presence on multiple media/channels
You should consider how you will maintain the accuracy of information on the social media sites. You have a responsibility not to mislead or misinform (potential) clients and third parties. This can include, for instance, where you change organisation or position within an organisation.
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6 Setting a social media policy
6.1 Purpose of a social media policy
Engaging in social media activity requires planning, and practices should consider having a policy in place. Policies will vary according to your own business needs, but broadly it should define the parameters of social media activity and the guidelines for engagement. The purpose of a policy should be to:
- consider what value engaging in social media will bring to a practice and its clients
- ensure that staff making use of social media are aware of the standards and processes that are in place, and are using the most appropriate channels
- assessing your expectations on the use of social media apply to 'personal' or 'non-business' accounts
- protect your practice's reputation from inappropriate use of social media
For smaller practices, it may not be necessary to have a written policy in place. However, you should note the points outlined below and think about electing one individual to be responsible for overseeing social media activity within your practice.
6.2 What a social media policy should include
You may wish to consider the following points when drafting your social media policy:
- Goals: Once you have defined the goals for your social media activity, how will they be measured? Various ways: Klout, Kred, impressions, Facebook insights, etc
- Evaluation: What will you do if your social media efforts are unsuccessful - abandon your channels, try out new ones, move away from social media altogether?
- Strategy: How social media activity will support or promote your practice's aims and objectives.
- Guidelines for engaging: What the limitations are as to what can be discussed, commented on or promoted via social media to avoid potential for reputational damage to an individual or practice. To include:
- details of how these guidelines will be communicated to those participating in social media
- where relevant, details on the use of disclaimers stating that the views expressed are those of the employee and are not representative of the employer's view
- Management: Who will manage your practice's social media policy and be responsible for ensuring compliance? To include:
- any restrictions in employment contracts
- details of the training and support required for those using social media
- details of the process for managing breaches of the social media policy, for example withdrawing an individual from a project.
- Roles and responsibilities: Who will oversee social media activity and take responsibility for the day-to-day administration of the different activities, and who will be able to participate in social media activity within your practice? To include:
- details of who will 'own' social media contacts. If you are responsible for your practice's page on a social media site, it will be the practice that owns the content and contacts, whereas the contacts on your own personal page on a social media site belong to you.
- Is it more appropriate to use a work or personal email address? For example, if you are setting up a personal profile on LinkedIn it may be more practical to use a personal email address as this would not be affected if you changed employers. On the other hand, a work email address would be more appropriate if you are promoting services.
- Compliance: How will you ensure that your social media activity is compliant with the SRA Handbook and Code of Conduct 2011?
- Confidentiality: How will your practice ensure that confidentiality is maintained when social media is used?
- Consistency: How will your practice ensure consistency in its approach to drafting messages and contributing to discussions that take place within different social media channels? You may also wish to ensure that the presentation of social media activity is consistent with your practice's branding guidelines.
- Response: Do you have a response plan for dealing with an incident involving social media? Who within your practice should control the process for any such incident?
- Complaints: Do communications on a social media platform indicate a complaint which needs to be managed in accordance with your complaints policy? See our practice note on handling complaints for further information.
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7 Setting up a social media channel
When a practice or individual is setting up a new social media channel, the following factors should be considered:
- What is the aim of it and how does it fit in with the practice's strategy? (which may be set out in its social media policy)
Audience and format
- Who is the target audience?
- Is it aimed at a specific group or a more general audience?
- Having identified the audience, which social media channel will be used for the activity?
- Consider any 'unintended' audiences and potential lack of control over information
- Who will be resposible for this social media activity, and what roles will individuals have?
You should also think about the content and administration of the social media activity.
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8 Case studies
In 2014, the Law Society requested information from firms about use of social media in day to day practice. Firms were asked:
- to list the social media tools used
- the key benefits derived from using these social media tools
- about the risks they had identified and how these were mitigated
- how responsibility for social media was handled, and
- about any policies and procedures that had been put in place for reviewing social media activity.
8.1 A firm that utilises thirteen different social media tools
One firm that responded to our request for information listed the use of the following thirteen online or social media tools: Google Analytics, Google Plus, Sitebeam, LinkedIn, Twitter, Hootsuite, Social report, Crowd booster, Facebook, Foursquare, mention.net, Flickr and YouTube.
The benefits of using such a range of tools include widening marketing reach and sharing knowledge, driving traffic to its website, demonstrating that it is a commercial firm by engaging in digital marketing, developing new relationships with journalists and allowing the firm to react immediately to hot news topics.
This firm cited management of content as the main risk identified. However, its signing off process ensures that nothing is published without the approval of a senior marketing person. There is also a website policy that clarifies the processes for adding and maintaining content. This policy is reviewed and updated annually.
Additionally, all staff are trained on LinkedIn and Twitter, and a social media policy has been produced by the firm in consultation with staff and the head of risk and compliance. The firm's intranet has FAQs and video clips on how to tweet.
Additional guidance and training is provided for the set up and development of the firm's Twitter accounts. Individual teams have 'Tweet sheets' for use with the firm's central document management system. This allows easy identification of any content that fall outside the firm's social media policy.
The firm also has a Twitter best practice group to share knowledge and successes. Finally, Hootsuite, mention.net and Google Alerts provide the firm with tools to monitor its own activity, both internally and externally.
8.2 Firm whose target client group are avid users of social media
Another firm employing a more limited range of social media tools included within the perceived benefits the following: engaging with the target client audience and other business professionals, raising the profile of individuals within the firm, assisting with campaign work and raising awareness of the firm's work, strengthening brand awareness and debating or sharing opinions.
Its target client base, the disabled, are avid users of social media so it is natural for them to engage with the firm in this way.
In terms of mitigating risk, the firm included the following as potential problems: the blurring of boundaries between personal and professional use, breaching confidentiality and defamation, and damaging the firm's brand.
The firm has a social media policy which stipulates that employees must keep professional accounts separate from personal accounts wherever possible. The policy prohibits individuals from posting any online content that is 'defamatory, pornographic, inappropriate, harassing, libellous or that creates a hostile work environment'.
Only two individuals at the firm have access to the account and they work closely together to ensure that any online communication does not breach the firm's policy.
To avoid breaching confidentiality and defamation, the permission of clients is always sought before the firm writes about cases it has been involved in.
The firm also recognises that it has a responsibility to assist clients if details of their cases are reported online.
The managing partner and consultant engaged by the firm work closely together to devise on-line media strategies for each high profile case or campaign. The managing partner has full control over the strategy and what is posted online.
This person reviews all media releases and website news stories before they are posted.
In terms of guarding against any damage to the firm's brand which is viewed as being of paramount importance, all posts on social media and online are made with the utmost integrity.
The managing partner and consultant regularly review the content of all social media channels associated with the firm and its employees.
This includes monitoring not just the firm's law based accounts, but potentially also the personal Facebook and Twitter accounts of individuals within the firm. (This is an area on which you should seek advice.)
Employees of the firm are made aware by the firm's social media policy that the firm may observe content and information made available by employees through social media.
If employees publish content after-hours that involves work or subjects associated with the firm, a disclaimer is used, the wording of which is provided by the firm.
8.3 Firm which is the subject of criticism on social media
Another firm found that clients and third parties (e.g. an opposing side in litigation) used social media to air grievances against the firm or individual solicitors. This firm implemented a six-point plan as part of its social media policy for dealing with this situation:
- They stressed the importance of responding quickly. This was to avoid the situation getting out of control.
- They prepared some standard responses which could be used as a basis of a response. This allowed more consistency and speed of response.
- They agreed who the appropriate person and social media account to respond was.
- They applied the appropriate empathy and humanity in responding; they avoided making light of the situation or taking the situation personally.
- They limited their responses to such grievances – after a second reply, they would not engage further through social media (preferring instead to communicate privately and directly).
- They monitored the grievance and any follow-up actions (including recording this on their complaints log).
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9 More information
9.1 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays or email firstname.lastname@example.org
9.2 Professional ethics helpline
The Solicitors Regulation Authority's professional ethics helpline for advice on conduct issues.
9.3 Risk and Compliance Advisory Service
If you require further support, the Risk and Compliance Advisory Service can help. Please contact us on 020 8049 3748, or email email@example.com.
Find out more about the Risk and Compliance Advisory Service
9.4 Other resources
Bookshop: Social Media in the Legal Sector: Special Report.
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