Last December the Law Society became the first UK regulatory body to issue guidance on the use of social media. The guidance is targeted at practising lawyers as well as law firms’ compliance officers and seeks to highlight the importance of adhering to professional ethics and standards online in the same way as in the workplace. The guidance seeks to reinforce the importance of ensuring clear distinctions between the professional and personal aspects of one’s life. A copy of this guidance can be found at http://www.lawsociety.org.uk/productsandservices/practicenotes/socialmedia/5049.article
Social media has become an integral part of many law firms’ marketing strategies as firms have begun to appreciate the potential it offers. While there are opportunities to develop existing relationships, as well as develop new client contacts, through the marketing opportunities which social media provides, the potential pitfalls are equally significant.
This article will suggest that while the Law Society’s guidance is welcome, it should be one stage in the process of the firm establishing a comprehensive and workable strategy for their employees. The guidance sets out a number of aspects that the firm must be aware of when setting their policies in order to ensure that they are compliant.
Social Media
Social media covers a number of different platforms that enable a user to interact and share information such as comments, photographs, videos and audio publically or privately with another user online. The most well-known social media platforms include LinkedIn, Twitter, YouTube and Facebook. It is believed that nearly 50% of partners and employees at the top 50 law firms now have a LinkedIn account, double the figure from the previous year’s research, demonstrating the increased acceptance of social media platforms in the workplace.
The advent of social media has facilitated the ability to initiate and maintain connections with individuals and businesses in ways which would have been impossible during the early days of networking. It is possible, even common, to look at the profile of a contact to understand their expertise, connections and background in a few minutes rather than relying upon word-of-mouth recommendations. However, with this acceptance, there is a still significant area of uncertainty around who owns what and what is the most successful strategy to implement.
Social media is technology that enables online users to interact and share information (including video, audio, photographs and text) publicly or privately with one another. Social media includes a variety of internet-based communication tools, such as Facebook, Twitter, blogs and wikis (for example, Wikipedia).Social media is technology that enables online users to interact and share information (including video, audio, photographs and text) publicly or privately with one another. Social media includes a variety of internet-based communication tools, such as Facebook, Twitter, blogs and wikis (for example, Wikipedia).Social media is technology that enables online users to interact and share information (including video, audio, photographs and text) publicly or privately with one another. Social media includes a variety of internet-based communication tools, such as Facebook, Twitter, blogs and wikis (for example, Wikipedia).Social media is technology that enables online users to interact and share information (including video, audio, photographs and text) publicly or privately with one another. Social media includes a variety of internet-based communication tools, such as Facebook, Twitter, blogs and wikis (for example, Wikipedia).
The Guidance
The Law Society Guidance runs to 13 pages and is designed to highlight some of the important issues that should be considered by firms and employees when using social media. The obligations that the Guidance sets out mirror those the employee faces in all other practices within the firm. The SRA’s Solicitors Code of Conduct 2011 established ten key principles, which act as a base in determining whether a solicitor is meeting the standards expected of them. The principles are to be used both when examining a legal issue as well as an ethical dilemma. Put simply, this means that, when engaging with social media, solicitors are required to adhere to the key principles set out in the SRA handbook.
Three principles which the Guidance specifically highlights as those most likely to be tested due to the use of social media are:
- the requirement to act with integrity (Principle 2)
- the need not to allow one’s independence to be compromised (Principle 3)
- behaving in a manner that maintains public trust in you and the profession (Principle 6).
In addition, the Guidance identifies a number of potential areas of risk that can be presented by the use of social media, these include confidentiality, control over information and defamation. The Guidance does not seek to set out a single solution to the potential problems that can be created by social media. Rather the intention appears to be to raise understanding and awareness that, in addition to the seemingly obvious danger of posting ill-conceived comments, it is possible to inadvertently fall short of the high standards expected. This is highlighted with the use of examples concerning client confidentiality – such as giving advice based (at least in part) on experience for previous clients or giving your location (which can show that you are meeting with a particular client).
A key area raised in the Guidance is the importance of keeping the professional and personal uses of social media separate. While this sounds simple and common sense, in practical terms this may not always be possible. The vast majority of those who have recently attended university/law school are likely to have a number of friends as contacts who may in turn become clients. The guidance appears to suggest creating a divide between professional and personal and utilising different social media channels to achieve this. Although this may help, it is important, as discussed below, to remember that private, may not be as private as you believe and that you should avoid posting any content which as a solicitor you would prefer not to be associated with. One suggestion in the Guidance is that the personal use of social media should be regularly reviewed to ensure that the choice of platform and content is at all times suitable.
Best Practice for the Firm’s Policy
In order to establish an effective social media policy, it is important to remember that, while there are certain safeguards that must be implemented, the policy needs to meet the aims and strategy of the firm and allow for development as the firm’s requirements change. The firm’s compliance officer should take an active role in ensuring that the firm is adequately protected against breaches of the policy (and breaches of the Solicitors Code of Conduct).
Due to the increased use and importance of social media in a professional capacity it is necessary to implement and enforce a coherent firm-wide policy, which protects the firm from breaches of the code and damage to its public image. The policy should however be bespoke to the business requirements and strategy that the firm has in place or wishes to pursue. While the employee should take on responsibility for ensuring that he or she complies with the policy, it should be created and updated in conjunction with the firm’s compliance officer to ensure that practical considerations are not overlooked.
The guidance given by the Law Society should act as a platform for the creation of a suitable social media policy (and social media strategy if one is not already in place). The requirements and demands of clients change over time and an increased expectation of using social media as a viable, and practical, method of communication with the firm is now commonplace amongst many. An important aspect of the policy is that it is a living document that takes account of the nuances and culture within the departments in the firm. A “one size fits all” policy is unlikely to be as effective as one that is tailored to the specific needs (and opportunities) of the firm. There are however some areas which should be covered in all social media policies and these are:
- anti-harassment and bullying policies
- confidentiality obligations
- data protection policies
- electronic information and communications systems policies
- equal opportunities policies;
- ethics and standards of conduct policies or other policies dealing with misconduct
- intellectual property aspects (concerning ‘ownership’ of content and contacts)
- monitoring procedures (see below for further details)
- reporting procedures and contacts for queries.
By adopting a social media policy which interacts with the different requirements and challenges facing the departments within the firm, there will be a flexible and dynamic policy which is practicable rather than an overly formidable document. This in turn will help to develop the firm’s own strategy and complement the firm’s business development. The firm will be able to market itself as having a unique selling point of being able to respond to change and recognise that such a policy demonstrates to clients that they offer clients a system that inspires confidence that their interests are being correctly safeguarded, thus adding value to the legal services rendered while allowing for networking and business without geographical limitation. The implementation of such a policy may even draw new clients in. It is better to invest now in a comprehensive social media policy which addresses safeguards for the client and offer it as an added incentive to use your firm rather than wait until the implementation of the policy becomes obligatory and the firm is left at the back of the queue.
In addition to establishing a policy, firms should seek to train their staff on areas such as privacy settings, the potential legal consequences of breaching the policy, template formats to be used etc. Once the policy has been implemented and any teething troubles worked out the firm must ensure that the policy is adequately monitored.
As part of the training programme given by a firm it would be prudent for all employees to:
- familiarise themselves with the firm’s social media policy
- regularly review the content of their personal social media channels (are they comfortable that the content would not reflect negatively on themselves or the firm?
- ensure all privacy settings are up to date
- understand where the line between professional ends and private begins
- never stay logged into social media platforms when not at the computer
- remember that you can control what you write but you cannot control who reads it – think before you upload content.
Successful monitoring needs to be proportionate and employees should be involved in the process where possible. Prior to the implementation of a monitoring policy the firm should undertake an “impact assessment” to ensure that all legislative requirements are adhered to. The assessment should be carried out by the firm’s designated compliance officer in conjunction with departments such as IT, human resources and marketing. It would be prudent for the assessment to be repeated at regular intervals after the implementation of the policy to take account of changes in technology and the law.
Employees should be actively encouraged to raise questions if and when they are uncertain. It is necessary for the employee to take an active role in familiarising themselves with the firm’s policy. The Solicitor’s Code of Conduct specifically draws the employee’s attention to the requirement to know and adhere to the rules and policies of the regulator and the firm. In addition the employees should understand how the monitoring process itself will work (this should be an integral part of the training process) and be provided with copies of the monitoring policy (in addition to it being available on the firm’s intranet). A successful policy will be a two-way process between the employer and the employees.
Conclusion
Social media is now established as part and parcel of everyday life both in a professional and personal capacity. It is therefore prudent for firms to establish clear policies and strategy for its implementation into the work place. While many may see its implementation as a threat, particularly in light of unwitting potential breaches of the Solicitors Code of Conduct as raised in the Law Society’s Guidance, its opportunities far outweigh these threats.
Firms should see social media as an opportunity to embrace the potential of new technology to develop in terms of communication with their clients. By setting out, monitoring and enforcing a well thought through and clearly drafted social media policy, the firm can ensure that it is complying with all necessary regulations and expected standards of conduct.
It is necessary however to involve the employees of the firm at all stages of such a policy from its creation through to its enforcement. Many potential areas of concern can be eliminated through training and education, such as the danger of blurring the lines between professional and personal. Each employee should recognise their own importance in ensuring that both they and the firm are complying with their obligations and where necessary seek out additional training.
The Law Society’s Guidance is on the whole helpful, and provides firms with a useful map from which they can begin to establish a strategy and policy to achieve their medium-term goals. Disappointingly, it fails to draw out the point at which the employee may be in breach of professional obligations to the extent that many had wished. To many, social media is not yet a central part of their business, or even their marketing, and it is only with time and effort will it be fully accepted as an integral part of day-to-day business, as was the case with the implementation of e-mail.
Each firm has its own personality and culture and these should be incorporated into a social media policy as the aim of such a policy is not to curtail the freedoms of the firm but to enable it to continue to grow.
People buy People. Would the client want to buy you and the services you provide?
Laura Scaife is a trainee solicitor at Hill Dickinson. You can follow her on LinkedIn
