Like many businesses, law firms use social media for marketing, communicating with clients, research, gathering evidence, attracting staff and more. However, unlike other professions, lawyers are constrained by certain ethical obligations.
This article will help you navigate these obligations and use social media effectively. It’s worth noting that each state has different rules, but the following apply in all states unless stated otherwise. The duty of confidentiality is noted, but not addressed below as it applies in all circumstances.
1. The basics
Social media follows the same guidelines as advertising, marketing or promotion. Meaning you cannot do anything that is:
- False, misleading or deceptive
- Likely to mislead or deceive
- Offensive
- Likely to be prejudicial to, or diminish public confidence in , the administration of justice
- Prohibited by law.
However, some firms take a less conservative approach when on social media than they would do say if they were advertising in the local newspaper. Better to err on the side of caution and when in doubt, get another practitioner to review what you intend to post.
2. The ‘expert’ title
In most states, you need to be careful about suggesting you are an expert or a specialist in a particular area of law. Usually, you need the appropriate accreditation from the relevant body before you can use these words.
3. LinkedIn Endorsements
It’s important that you aren’t misleading or deceptive in your LinkedIn Endorsements. This might sound straightforward, but there are a number of ways this can occur.
Make sure you check that no one has added skills to your profile that aren’t within your experience.
Check that the only people who have endorsed you actually have had first-hand experience of that skill e.g. you haven’t been endorsed by a supportive friend who hasn’t actually worked with you.
Consider whether you feel comfortable with colleagues from your practice endorsing you. They might have first hand experience of your work, however they’re not independent and their endorsement might be seen as self-serving.
It’s great when a client endorses you but the endorsement must be independent and in the clients own words, not solicited and certainly not paid for or given in response to some inducement.
4. Inadvertent relationships
When posting or commenting on Linkedin or other sites, it’s important to ensure that an inadvertent solicitor/client relationship is not formed. Lawyers are very careful to put disclaimers on newsletters or other publications but don’t seem to show the same concern to information posted online.
Admittedly, the risk of a non-client reading and relying on that information to their detriment and bringing a negligence claim is remote, but there seems no real reason to ditch the disclaimer that is so diligently placed on all other communication. I’m not suggesting every comment/post needs a disclaimer, but where it covers something substantial, at least think about it.
5. Data collection
While it’s not unethical to use Social Media to gather evidence, e.g. for an application for substituted service, to find a witness or party, or to investigate parties in personal injury claims or family law matters, you certainly cannot do so whilst pretending to be another person and it may also be questionable to do so without disclosing you are a legal practitioner. As well as this, The Privacy Act 1988 (Cth) may apply to the collection and use of that information.
6. Personal injury in WA and QLD
Personal injury lawyers in WA and Queensland have significantly more constraints on what they can do when advertising compared to lawyers in NSW and Victoria. (The Civil Liability Act (WA)2002 and Personal Injuries Proceedings Act (QLD) 2002. For example:
- Cannot encourage or induce someone to make a claim
- Cannot represent success rates
- Misleading to advertise with words like “win” or “loss”.
At the end of the day…
Review your state’s professional conduct rules and how you, your practice and your staff are using social media. You should also consider creating a social media policy for your practice, training all staff and monitoring use to ensure compliance.
About the Author
Cathryn Urquhart facilitates the Legal Practice Management Course at the College of Law -WA, presents training for FilePro and delivers CPD training to law firms. She was a lawyer in a former life working as a SA in 2 large firms and at Law Mutual (WA), PI insurer in WA, managing claims and presenting Risk Management.