Question of Ethics

September 2016

Using social media

Q. We are considering using social media to attract new clients.  What sort of things should we bear in mind from a conduct point of view?

You can use social media to advertise your firm and engage with prospective clients, but you should consider the following:

  • Social media is a form of publicity. Whilst you can therefore engage over channels such as Twitter or Facebook where appropriate, just like any other form of advertising or marketing, you must ensure your social media content is accurate and not misleading (Outcome (8.1) of the SRA Code of Conduct).
  • You should always behave in a way that maintains the trust the public places in you (Principle 6). The internet is an inherently public medium and generally speaking, anyone can read what you post. The casual nature of many social networking services such as Facebook, Twitter etc, poses an increased risk. You should carefully consider the tone and not just the content of any social media communication. Even comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others. It is advisable to avoid getting drawn into heated debates or arguments; comments designed to demean or insult are likely to diminish public confidence in the profession.
  • Retainers can arise by implication and you should therefore take particular care to avoid inadvertently entering into a retainer online. It may be sensible to avoid entering into any kind of "discussion" with potential clients about their matters; you can save this for the first appointment.
  • To achieve Outcome (11.1) (unfair advantage) of the Code, unless there are exceptional circumstances, you should not contact a member of the public where you are aware they have already instructed a lawyer in a matter (see Indicative Behaviour (11.4). For instance, you should not seek to "friend" the opposing client to gain access to private information which might assist your client's case.
  • Bear in mind you duty to keep your client's affairs confidential. It is inadvisable to send confidential communications to your client over social media and you should not do so unless you can be satisfied that your client's confidentiality will not be at risk and your client has agreed. If your client does wish you to contact him or her in this way, you will need to consider not only the security of the system but also its privacy policy. Some host sites allow the host to access otherwise private information, despite it not being posted to the client's "wall" or "blog".

    You may also want to consider less obvious risks; for example, by advertising the fact that you are in a particular location at a particular time (perhaps via a "geotagged" status update), you may risk inadvertently revealing that you act for a particular client.

  • As this is a risky area, to achieve Outcome (7.2) of the Code, your firm should have systems and controls in place to ensure compliance with the Principles and Outcomes. For Instance, you could implement a policy whereby only the managers, or those who have undertaken appropriate training in this area, can access the firm's social media accounts.