I wrote briefly last year about the Practice Note on social media issued by the Law Society at the end of December.
I'm sure there will be some commentators who bemoan the fact that the Law Society "just don't get social media..." and that any kind of rules ignore the fact that we are living in a world of personal branding and thought leadership where the Twlawyer is king.
This isn't that kind of post.
The truth is that this is a difficult area for a professional body to get to grips with within the context of a complex regulatory environment.
A note like this has to address the entire profession from self appointed social media gurus to those who have no knowledge and even less interest.
So how well (in my view) have the Law Society managed it?
What's the point?
There are a few parts of the practice note which I disagree with. Top of the list is the statement:-
"There are no quantifiable benefits of engaging in social media activities…"
It is essential that law firms are able to measure the return on investment from social media activities.
There may be no quantifiable benefits in the way most law firms are actually using social media, but that's a different proposition.
Elsewhere in the note it seems that social media:-
"present real opportunities if harnessed effectively."
I don't think it is the Law Society's responsibility to advise firms on social media strategy, but these two seemingly contradictory positions may be off-putting for solicitors wondering whether to bother with social media.
A note about terminology
To start with some pedantic nit picking.
This is open to argument, but I personally don't like the use of the phrase "Social media are...".
I know that social media should be a plural noun, but the usage which has evolved is as a singular. Is Facebook a “social medium”?
I also struggle with the description of Twitter and other services as "sites".
You can tweet quite effectively via mobile devices (or even SMS) without ever visiting the Twitter website and it is more accurate to describe them as "services".
Neither of these are big points, but I do think the terminology used has an influence on the credence you can expect from the "power user" end of the readership spectrum.
It's the ethics, stupid
Putting terminology to one side, the main thrust of the note is about the ethical obligations of solicitors using social media.
This is common sense really, but it bears repeating. The same obligations apply when using social media as in any other field.
Solicitors are obliged to adhere to the Principles in the SRA Handbook when using social media. No surprise there.
However, the specific examples throw up some interesting (worrying?) issues
Can simply being connected to a client on LinkedIn breach confidentiality by acknowledging you have a link with that client?
I guess there are circumstances where this could apply, but in the situation described in the note where the client sent the invitation to connect this seems extremely harsh!
Back in 2010 I wrote about Locational Libel and a similar theme arises in the note.
Could sending a geotagged tweet from a certain location disclose that you are working with a client and give rise to a breach of confidentiality?
This scenario seems more risky than the LinkedIn one as this disclosure is likely to be made without the client's consent. Best to watch those location settings and avoid FourSquare check-ins at client meetings.
It's nothing personal...
The note refers in a number of places to the “blurring of boundaries” between personal and professional roles which can happen when using social media.
This begs two very interesting questions, which I think the note skates around.
To what extent do the rules cover "personal" social media use?
Who actually owns these social media contacts? Which are personal and which are purely business related?
On the first point, you could take Handbook Principle 6 as an example. This states that as a solicitor:-
"you must behave in a way that maintains the trust the public places in you and in the provision of legal services"
If the boundaries between professional and personal aren't clear, how does this apply to a purely personal Twitter account or blog (as an example)?
Does it make a difference whether your profile states that you are a solicitor, or even uses your real name so that this fact can be discovered?
The note suggests that it may be enough that your professional persona could be:-
"...associated with activities which may be visible online..."
I'm not sure what this means, but one interpretation is that anything posted using your real name and which is publicly accessible "may be used in evidence against you".
I have written about this in the past (see What not to Tweet) and my views haven't really changed after reading the note.
The best advice remains:- don't write anything online which you wouldn't be happy to see prominently attached to your professional record.
I am also interested in how this applies to anonymous bloggers (there are a few of these in the legal field). Do the same rules apply even if your identity is hidden and you don't refer to the fact that you are a solicitor?
The advice later in the note to:-
"regularly review the content of your personal social media channels [and] remove any information you... do not feel comfortable with"
seems a little shaky in this context. Far better not to post to begin with as there is absolutely no guarantee of putting the genie back in the bottle.
The second area where personal -v- professional is relevant is in relation to ownership of social media contacts.
In the light of the recent PhoneDog case in the USA it is interesting to see the Law Society advising solicitors setting up "personal" LinkedIn accounts to:-
"use a personal email address as this would not be affected if you changed employers."
This ignores a couple of key points, which are also relevant to the statement elsewhere in the note that "contacts on your own personal page on a social media site belong to you".
The basic technical point:- you can change your primary email address for LinkedIn at any time so this seems like a bit of a red herring.
Less obviously, most senior lawyers will be subject to restrictive covenants in their service contract or partnership agreement on leaving a firm or employer.
I'm not really sure what is meant by a "personal" LinkedIn account in this context (possibly it depends upon whether you set it up on your own initiative or at the request of the firm?).
In any event, as LinkedIn is a business networking service your contacts are bound to include clients or referrers of your firm.
My view is that actively contacting these clients and referrers using LinkedIn could constitute a breach of covenant. The email address used to sign up isn't really relevant.
I don't think this has been addressed by a Court yet, but these contacts receive an automated message on LinkedIn when you change jobs. Could even this be sufficient to constitute "solicitation"?
There are no easy answers, but the distinction between personal and professional really needs to be explored in more detail and I feel that the note sidesteps this issue.
Privacy and data
The note also touches on privacy settings and the "right to be forgotten" issue, which is certainly worth highlighting to anyone thinking of getting involved in social media.
How easy is it to actually delete your accounts at a later date? The note actually includes a link to the Facebook account deletion page, which is a nice touch.
The rest of the note covers more conventional ground with advice on social media policies and summaries of what the various services involve.
The advice on policies generally seems sensible, although I'm not sure about the support for including the commonly seen "views expressed are those of the individual and not the firm" disclaimer.
I would really prefer to see an analysis of what this actually achieves other than possibly creating a false sense of security.
Marks out of ten?
I'm not really about to start ranking Law Society guidance out of ten, but on the whole I thought the note was a useful guide to social media best practice.
If you want help with strategy then you will need to look elsewhere, but this isn't really the remit of this kind of guidance.
The elephant in the room though is the distinction between personal and professional use.
I'm not sure this is something which can easily be defined, but I expect to see these two related issues become more and more of an issue over the next few years:-
Do you have any legitimate expectation of a "private persona" online or is everything you write subject to the professional conduct rules?
What factors decide who owns the Twitter followers and LinkedIn contacts that a solicitor gains whilst working for a firm?
Until these points are settled there are going to be some huge grey areas for both firms and solicitors who use social media.