Social media sites such as Facebook, Twitter, and LinkedIn are an integral part of the way people communicate. These sites are increasingly used by members of the legal profession both in their personal and business capacities.
Used properly, social media platforms can perform a valuable function, allowing legal professionals to change the way they conduct and promote their businesses. Used properly, social media can be a legitimate communication and marketing tool but also presents certain risks and challenges. Many of these risks are not, however, unique to social media. Legal professionals should consider the general risks associated with all forms of engagement and communication, and how these can be minimised or avoided (on this see also the Law Society’s Guidance on Public Comments by Solicitors’)
The really tricky thing about social media sites is their constantly evolving nature. The internet is bursting with details of social media courses and the Law Society of Scotland’s CPD team produce a broad range of training courses which often include social media training with the profession’s needs in mind.
This advice and information touches on issues relating to use of social media by the legal profession for business purposes, as well as issues which firms may encounter as employers. It also explores some of the ways in which social media is influencing and changing the content and practice of law.
It encourages individual legal professionals to think about how they use social media, and some of the professional and ethical issues that may arise. Social media has a lot to offer, and both firms and individuals have much to gain through engaging. By being aware of potential issues, members of the legal profession can make the most of social media.
Participating in social media provides the opportunity to engage with a diverse group of bodies and individuals. The ability to share links, text, photographs, and videos allows for a much wider range of information to be distributed and accessed. The instantaneous nature of much social media provides the ability to take part in conversations and follow or react to ongoing events.
As with any project, the research stage is fundamental to your success. As well as reading this advice look at what the competition are doing, consider taking a course, do some online reading – there is a wealth of information available for free online – or just chat to your colleagues. It’s possible, if not likely, that there is some untapped social media expertise in your firm, happy to lend you the benefit of their experience.
You might not be the most experienced social media user, but as a legal professional, you exercise good judgement on behalf of your firm and clients on a daily basis. Use that same decision-making ability in your approach to social media. Use your common sense. Social media offers brilliant opportunities to promote your business and services, establish a corporate personality and engage with your clients but you also need to consider the risks and potential consequences of your posts before going live. You can afford to be more conversational in tone on social media but avoid causing offence or alienating your audience.
Good communication means listening is just as important as talking. Social media is a good opportunity to tap in to what your clients and colleagues are interested in reading about and want from your business. Use their feedback to generate content, improve your service and build relationships.
How the legal profession is using social media
- Many firms in Scotland now market properties through Twitter. LinkedIn communities and groups are being used for business development - for example, employment lawyers providing information to HR managers to build a following. Some larger firms use Facebook to stay in touch with prospective trainees during the PEAT 1 / Diploma stage of training. Another example is a firm using Facebook as an easy method of obtaining photographs from a client located in a different country.
- Firms are increasingly using Twitter and Facebook as ways to broadcast their news and promote the services they can offer
- The Law Society of Scotland uses Twitter, LinkedIn and Facebook to discuss and provide information about legal events and issues, and also to gauge the reaction of the profession and public as events unfold
3. The Platforms
There are an increasingly large number of different social media platforms and over time more are likely to evolve. This section aims to provide a brief introduction to some of the main sites - LinkedIn, Facebook and Twitter. These are just examples and there are many other forms of social media such as blogs, YouTube, online communities and forums or chat rooms, providing a range of opportunities for both individuals and firms. If you are more of a digital native or social media expert, do jump ahead to the next section.
When considering which platform to use, think about your target audience and who you want to engage with your social media posts. Are you primarily concerned with private clients? Does the type of law you practise mean that your clients fall within a particular demographic? Is your objective to engage with other businesses or is your audience mixed in terms of age, location, gender, relationship and professional profile? You need to ask yourself these questions and understand who your target audience is, before you can begin to tailor your social media content to their interests and for greatest impact.
LinkedIn is a business oriented site aimed at professional networking. With over 680 million members globally, spread over 200 countries, with more than 10 million in the UK, the site considers itself to be the world's largest professional network on the internet.1
Users of the site can maintain a list of connections to other professionals they know. This then allows for further networking through the connections of the people you know. Businesses and firms can create their own profiles with discussion groups. Users can form and join groups, allowing for networking within specific areas of interest. The site is also used as a job search tool, allowing both individuals to connect with potential employers and recruiters to identify potential candidates for a job.
Users can post images or short videos that can be useful to market statistics or services that you or your business offer. It can be ideal for launching new services or product offerings. You may wish to publish business wins or successful recruitment appointments. Another use is for highlighting events that your firm may be holding. You could also see what similar firms are doing and take note of anything you could also be doing.
Many individuals carry a LinkedIn page from job to job, making it a form of personal online CV and list of contacts, of course, those contacts may relate directly to work - an issued touched on later. Confusion can occur when one individual builds and manages a firm’s page or where it relates to a particular type of work, for example, an employment law discussion page, rather than showcasing the firm as a whole.
Facebook is a site which allows individuals to set up profiles to share information and communicate with their contacts. Businesses can set up pages to interact with people and provide information about their services.
The site has over 2.5 billion active users. Users can share status updates, photos, links, and personal information. All of this can be accessed by the public unless use is restricted through the privacy settings.2
Facebook is used as a platform for the development of applications, and is also used by businesses for advertising, directly through targeted advertisements on the site, or by using their pages.
Similar issues arise as noted above for LinkedIn. The more personal and family focus of Facebook means that for the legal profession many profiles will only be shared with friends, rather than business contacts. This can reduce the risks.
For a business, Facebook can be used to create a home page, post status updates, add photos relating to the business or individuals employed at the business, create an “about page” for the business and pages relating to services the business provides.
Facebook also allows businesses to make use of the events section, create a community for clients to interact with the business, display ads the business may be running, show any offers. Businesses can even allow reviews and also create a shop to display and advertise business offers.
Facebook also provides tools to monitor which pages are doing well and what is working or not working.
Twitter is a social networking and microblogging site with over 152 million daily active users. When using Twitter a business can make use of a banner image, profile picture, name, description, pinned Tweet and Twitter handle.
Describing itself as a real time information network, users can share messages of up to 280 characters (previously 140), and follow messages from selected other users. Other content, including pictures and videos, may also be linked to and viewed through the site. These Tweets are public by default, but can be restricted by using the privacy settings. There are over 500 million Tweets sent every day.3
Twitter can be a work or personal tool, or both. It can often be hard to determine if posts more strongly relate to an individual or their work.
Twitter provides a means to connect to your existing or potential new customers. With Twitter being free to use this is an inexpensive tool for you to use to promote your activities. Again this is another tool where you can see what similar firms are using the tool for and glean some ideas for your own business.
4. Good Practice
Participating in social media can present significant personal and business benefits, and members of the legal profession should seek to engage with social media in a positive way. Above all, remember that all professional responsibilities apply regardless of the medium of communication.
4.1 Some practical tips
Some general good practice is to:
- Focus on quality over quantity: Engaging with social media and creating numerous posts on numerous channels can be overwhelming, with the prospect of devoting precious time you are already short of, but actually you may need to do less than you think. Focus on creating quality content which offers value rather than simply selling – give your audience a reason to engage.
- Use compelling images: People have come to expect their social media content to come with a visual element. According to Twitter, people are three times more likely to engage with Tweets that include visual content. So think about adding videos, images, and GIFs to your posts. You do not need to be a professional photographer to take a shot that will grab your audience’s attention. People love photos of people and using images of your colleagues (with their consent) can help to put faces to names at the end of the phone and build relationships. If you are considering using a visual that neither you or one of your team has produced, there are plenty of online sources offering free image content, for example via Flickr on a Creative Commons licence - you should be mindful of using material which is the subject of copyright. Use your imagination and be creative.
- Measure, review and improve: As with every business initiative, it is crucial that you evaluate your performance, identify what’s working well and what you want to do more of, what’s not been such a success and you can do away with in future campaigns and what completely new ideas you want to consider going forward. Most social media platforms come with their own reporting tools and if driving traffic to your website is a key performance indicator, then you can use one of the many website analytics tools available to tell you which posts have clients clicking to find out more.
In both a personal and professional capacity, it is good practice to have given thought to the risks and opportunities posed by social media, and to regularly review content and accounts. By considering the potential for negative situations to arise, it is possible to plan an advance strategy to respond to such situations.
4.2 Policies and processes
Law firms and in-house legal teams should have a social media policy in place for partners and staff.4 Individuals considering using social media in any way which could be perceived as relating to their work should check whether a policy is in place. If there is no policy, individuals should discuss issues in this Advice and Information in advance with an appropriate manager, and document that discussion.
Having and using a policy will assist in setting expectations, and in raising awareness of the risks and how to manage them while making the most of the opportunities available.
Issues to consider in a policy or in discussion with managers follow, and some of these are then explored in more depth:
- guidance on acceptable use of social media at work and how this may be monitored. Use information provided by relevant third parties such as the Information Commissioner’s’ Office when developing the policies.
- the use of social media on company equipment and whether it is permissible to access social media sites during working hours or whether such sites are blocked at work
- the use of social media in a personal capacity where it links with work, for example, making comments about the company or linking with clients as friends
- a reminder that employees are expected not to behave in a manner which would reflect poorly on the business and its reputation
- issues around data protection if client details are being stored on, for example, LinkedIn
- issues around client confidentiality, reminding solicitors and staff of their absolute responsibilities in this area
- privacy issues (relating to staff and clients)
- copyright, other IP and defamation issues relating to content
- consideration of all the facets of social media which may include a database of contacts, events or work diaries, extended content (such as blogs and articles), video, and images (for example, photographs of work social events uploaded)
- guidance on which sites may or may not be deemed appropriate for business use
- guidance as to who is deemed to own the content on business related social media sites, and personal ones where business contacts are being collected
- guidance on the company's social media strategy, including a policy on business profiles and using social media in a business capacity and in recruitment
- links to other relevant policies - for example, cyber bullying is an issue in the workplace, and may be committed out of hours on social media
- arrangements for dealing with others who post inappropriate comments (for example, a client posting a joke which could be deemed to breach the firm's equality policy)
- arrangements for amending or taking down social media sites if the main password holder is incapacitated or unavailable, including ensuring passwords and usernames are available
5. Making it work for you
5.1 Business Considerations
Social media can provide a number of opportunities and new avenues for a business to interact with and communicate with a range of organisations and individuals. The effective use of social media requires a degree of consistency, consideration and commitment. This can result in the need for considerable time and resources spent maintaining and monitoring activity and content. Take some time out to do your planning. The scale of this exercise will depend on the size of your firm and the extent of your ambition. If, for example, you are sole trader there might be less of a need to formally document your decisions but you should still give some thought to which platform(s) you are going to focus on – if resource is an issue it can be advisable to begin with one platform, rather than spreading yourself too thinly – and creating a content planner. Do not initiate your communications until you know you have enough ideas for content to keep your account active for a reasonable period of time. Some platforms will allow you to schedule and automate your posts. Proper consideration of the business purposes and strategy for use of social media can assist in creating a plan to ensure that social media use is effective and efficient.
Elements of this include considering how the business would respond to a negative event or comment, who is authorised to open and maintain accounts on behalf of the firm, and ensuring that social media policies and guidance are in place for staff. It is also worth considering arrangements for decommissioning social media content; for example, if a site is set up to test a new platform but ends up underutilised and with out of date content it may be better to take it down.
Linked to the issue of controlling who is authorised to represent the firm through social media is the question of ownership of contacts and content developed by an individual through use of social media for business purposes.
Particular issues arise when an individual who has built up a considerable following or contacts changes employers.5 The situation can be complex: removing a complete list of clients from firm database would be likely to raise issues around theft, data protection, employment law and other issues. Many staff may, however, have significant data build up in, for example, LinkedIn. This may be a personal profile, but contacts may have been added during work time and through contact which would not have been made other than for a work relationship. Not only will the person continue to have easy access to these contacts, but when the person updates their profile with a new employer it is likely an automatic message will be generated to inform their network. There are also issues around content provided to contacts. For example, where a firm mails or emails an HR update to HR managers they retain control when any individual member of staff moves on - the publication continues to go to the same group of (potential) clients. When someone provides content through their LinkedIn profile then followers move with them if they leave, and the list needs rebuilt by a new lawyer within the original firm. These issues should be carefully covered in the firm's social media policies and be made clear when considering the use of social media by employees for business purposes. The policy should also explore behaviours by former employees on social media regarding the employer.
Another practical issue arises on the death of an individual. Accounts on different social media sites can be difficult to close without access to administrative passwords. Any individuals using social media for business purposes, including sole practitioners managing social media accounts for their firm, should ideally ensure that a record of their passwords is available for their firm and/or executors. This will allow an executor to promptly remove accounts referring to the practitioner or the firm. In some cases, delays in removing social media presence could result in professional conduct complaints, or allegations of executors holding themselves out as solicitors.
A firm also needs to consider listening and responding by monitoring comments and answering questions about the firm on your business’ social media channels. In some circumstances, it might be appropriate to invite the individual who has posted a comment to take the conversation offline and out of public view, but in general, keeping up to date with queries and comments is not only an opportunity to engage with prospective clients and get information about your business out there, but a valuable opportunity to find out how your business is viewed and improve its perception.
Where a firm does not have a policy a member of staff or a partner starting to use social media may wish to have a discussion with others to ensure what they are doing is understood, that these issues have been addressed and to encourage the development of a policy.
There is increasing concern over the potential for employers to check candidates' social media profiles prior to appointment. This may disclose considerable personal information including information which may have equalities implications, such as regarding race, sexual orientation, and religion.
Social media and employment law, including its use in recruitment, is a rapidly developing area which firms should take care to monitor.
Employers need to be aware of the potential issues and take steps to ensure that discrimination on the grounds of a protected characteristic is avoided. Remember, it is often possible for experienced social media users to access information regarding who has been viewing their profile.
Considering non-protected information on a candidate which is in the public domain is not in itself necessarily contrary to employment or equalities law. It would be considered good practice, however, to consider the motivation behind carrying out such checks, and how to manage the risks involved in that process. It may be good practice to disclose to candidates that social media presence will be checked as a part of the recruitment process, and how information gained from such checks will be used.6
Individuals may also wish to minimise risk in this situation by checking, on a regular basis, the privacy settings on their social media platforms. For example, Tweets can be locked so that people require permission to follow someone; and on Facebook settings can be increased so that even where someone else uploads a photograph the identified individual needs to approve it before their name is 'tagged' in it (which then allows other users to search for that photograph specifically). It may be worth checking settings and contents before entering a job application process.
6. Ethical Considerations and Professionalism
Once again, the use of social media is subject to the same ethical and professional standards as all other conduct of a member of the legal profession. Individual solicitors must ensure they abide by the professional practice rules and maintain professional relationships with clients and other members of the profession.7
Social media is often designed to encourage informal communication and sharing of personal views and opinions. The nature of social media also often leads to a blurring of the distinction between public and private. Although building personal relationships and creating a personal dimension to a profile may be a good thing, care is needed to ensure that appropriate standards are met, even in a more informal environment.
Defamation may be committed through comments made online, including through social media. Tone can be much harder to convey through text-based communications, and what was meant as a joke may be treated more seriously.8 Anonymity cannot be guaranteed, even when posting under a username. Members of the profession should always assume that comments may be traced back to them, and exercise appropriate discretion.
Issues around confidentiality should be carefully considered. Information made available by you to a small group in private can then be republished to a wider audience. Likewise, individuals should take care when forwarding or 're-Tweeting' information to understand in what context that information was sent to them, and whether it was intended for re-publication. Once information is committed to social media a large degree of control is lost.
Professional duties such as acting in the best interest of a client remain key issues when using social media, especially given the potentially large audience who may be able to see the information posted. Other areas where members of the legal profession have specific duties include the duty to maintain respectful and courteous relationships with the courts and with other members of the profession.
One of the key characteristics of most social media sites is the ability to link to other users, for example by becoming a 'friend' or 'follower'. The links between different users are often publicly visible.
The impact of suggesting a relationship or interest through creating links through social media should be carefully considered. Issues such as conflict of interest may arise, with the possibility that a perception of conflict may be created even if the individual does not consider a conflict to exist. This may happen, for example, if a client notices that his or her solicitor is 'friends' with a solicitor acting for the opposing party to a case or with a judge or tribunal members involved in a case.
Creating a link with clients through accepting them as friends on a social media site should be approached with caution. Members of the legal profession should take care to consider the nature of their activity on that site - including whether it is a business or personal account - and how the client might view the solicitor's online activities and relationships, visible through the site.
Some social media platforms will show content from friends and contacts within your own 'stream'. Consideration should be given to how this external content could be perceived by employers and clients, and consideration given to settings to ensure all linked information within your pages is appropriate.
Linking to other members of the legal profession should likewise be treated with common sense, and care should be taken to avoid inappropriate online communication, such as discussing a case or posting any other confidential information, and any potential or perceived conflict of interest. It is worth remembering that even 'direct messaging' (private communication between two individuals) is not necessarily secure. It should also be noted that the internet allows information to be linked together, and that issues have arisen for professionals from that. For example, a passing comment about a 'difficult client' on Twitter might be linked with the time of the tweet, and information from a public court hearing to specifically identify the client in question (as happened in an English disciplinary case).
The Law Society of Scotland Practice Rules 2011 covers many areas that may be relevant to online activity including:
- Advertising and approaching represented persons (rule B3)
- Confidentiality of client matters (rule B1.6)
- Relations with the courts (rule B1.13)
- Relations between regulated persons (rule B1.14)
Most social media sites will have a range of customisable privacy settings. Members of the legal profession who use these sites should take care to familiarise themselves with these settings and to ensure that they are adjusted to provide the security and audience desired as these tools can be damaging in the wrong hands.
Use different passwords for every platform, change them regularly and remember to log out. Avoid using personal details in your passwords. You would be surprised how easily someone wanting to access to your account can find out your birthday and the names of your kids! Keep your phone locked and password protected and do not be afraid to use the ‘block’ button or report a spammer – you are protecting others as well as yourself and your business. You can find useful information on broader aspects of staying secure online in the Law Society of Scotland’s cybersecurity guide.
By being aware of who is able to see the information posted on a site, individuals can tailor their content to achieve their goals for that site. For example, a purely private profile may be best restricted with the highest privacy settings, while a business profile might benefit from being publicly discoverable and accessible. Different settings may also be used to create different views for various categories of contacts, for example by having stricter privacy settings for photographs in comparison to notes or comments.
Confidentiality will always be a key issue for all communications, particularly online. Information posted online is extremely difficult to remove, and may be accessible for a considerable period even after deleted. Great care should be taken to avoid posting any confidential or sensitive information through social media.
Many social media sites are designed to encourage people to create a profile containing considerable amounts of personal information. Care should always be taken when sharing personal information that may become publicly available. Consideration should be given to the desirability and potential consequences of making information such as current employer, office and private contact details visible so as to minimise risks such as social engineering (such as phishing) and identity theft. Employers should also be aware of the potential for false or unauthorised profiles to be set up, which may purport to be related to the firm through use of profile information or other links.
In addition to different privacy and profile controls, each platform will have its own set of terms and conditions. These are often lengthy, complicated and difficult to find. Yet where social media is being used in a professional setting, it is important to ensure that those using social media have read and understood the key terms and conditions of each site being used, in particular around privacy and data ownership. These terms may contain, for example, certain conditions relating to promotion of services and interactions with other members of a site. They may also provide for rights of ownership or reuse of information and content by the owners of platform.
Personal and physical security should also be considered. Revealing a significant amount of personal information may allow clients to identify a home address and to make contact with you there, and posting information on holiday plans, if a sole principal, could indicate when an office was being left unattended for a week.
8. Social Media and the Law
As social media becomes an increasingly important part of everyday life, its impact on and interaction with the law is becoming clear.
As a means of communication, social media is seen as relevant in a number of different areas, including defamation and criminal prosecution. There is debate about the extent to which social media users can be seen as journalists. Social media also has a wider relevance.
In family law an increasing number of issues are arising in relation to contact with parents or siblings where this has been prohibited by the court but contact is maintained through social media and this has later become known. Depending on how active or passive the contact has been, this can create serious issues. Solicitors may need to deal with the consequences of these actions with their clients, and it may be there is increasingly a need to proactively explain to clients the difficulties they may face if they use social media in such a way.
In relation to criminal matters the police regularly use social media to look for comments about an offence that has been committed or to check a version of events provided by someone who has been questioned. Solicitors may need to be proactive in assessing the implications of social media in a case. There are also issues linked to stalking and higher profile issues around racist, sectarian or threatening statements. Social media is affecting elements of bail conditions, with an example of individuals accused of encouraging rioting through Facebook were released on bail with a condition that they did not access the internet.11
Use of social media from courts, including Twitter, was first allowed in a Scottish court in January 2011.12 'Text based communications' are generally permitted in the Supreme Court, subject to certain exceptions, for example where reporting restrictions are in place.13
Courts in other jurisdictions, including England, have allowed documents to be served on individuals through Facebook and Twitter where other methods were unsuccessful.14
Issues are frequently arising in relation to employment law, particularly in situations relating to recruitment, misconduct and dismissal. 9 Solicitors involved in drafting wills are now also increasingly having to consider the digital legacy left by an individual - be that encouraging them to leave passwords and user names with their will to allow sites that some relatives may find upsetting after death to be taken down, through to advising on ownership of things such as collections of family photographs held on social media accounts.
Another example of the internet creating a new context for legal issues is advertising. In particular, the Institute of Advertising has warned that activities such as posting positive comments or reviews, or planting viral marketing advertisements, without making it clear that the individual is acting on behalf of a business, could breach the consumer protection laws.10 Similarly the Advertising Standards Authority and Financial Conduct Authority will seek to apply their own standards and regulations to social media if applicable. Firms should consider the implications of individuals using social media for business purposes, and whether activity on personal accounts may amount to advertising or paid for content.
New issues will continue to evolve. The legal profession should be aware of the potential for social media to affect any situation. For example, could a client's behaviour through social media lead to a breach of a court order restricting communication or contact? Could a client's online activity be used as evidence through statements made and locations indicated on social media sites?
In short, in every aspect of law and practice solicitors should increasingly be asking what new implications are brought to the fore by social media and our increasingly digital lifestyle.
9. References and further information
- For general information on LinkedIn
- For general information on Facebook
- For general information on Twitter
- For policy advice
- For example, see: http://www.guardian.co.uk/media/pda/2011/jun/22/laura-kuenssberg-twitter-account, or http://thenextweb.com/socialmedia/2012/02/02/phonedog-vs-noah-kravitz-the-twitter-case-continues, or http://www.computerweekly.com/news/2240102972/Former-Hays-employee-forced-to-disclose-LinkedIn-business-contacts, or https://podlegal.com.au/who-owns-your-social-media-contacts-you-or-your-employer/
- Information on the relationship between social media and employment issues, including recruitment, can be found through ACAS https://archive.acas.org.uk/index.aspx?articleid=3375
- All rules and guidance as available online https://www.lawscot.org.uk/members/rules-and-guidance/rules-and-guidance/
- As in the case of the Twitter bomb threat in 2010 leading to a conviction by the English courts for sending a menacing electronic communication
- See for a discussion of some recent cases in England and Wales: https://www.thompsonstradeunion.law/news/lelr/bi-annual-lelr-spring-2016-137/case-law-on-social-media
- See https://www.iabuk.com/policy/digital-policy-guide
- BBC, 'Web ban for teens accused of Facebook 'riot' page' (2011)
- The Guardian, 'Tweeting in court spreads to Scotland' (2011). See also http://ejlt.org/article/view/670/904
- View the Supreme Court's Policy on Live Text-based Communications in Court
- Practical Law Company, 'Facebook used to serve court order' (2011) BBC, 'Court order served over Twitter' (2009)
Electronic Communications Guidance
Please see the Electronic Communications Guidance
Public Comments by Solicitors
Please see the Public Comments by Solicitors’ Guidance