Good Practice Guide to social media

Social media can be a useful resource for family solicitors to connect with the public and other professionals, publicise campaigns, raise the profile of members and communicate about the work we do. As it can potentially reach a very wide audience, we must be careful about how our use of social media impacts on our client-related work.

This Guidance was reviewed in April 2019. The law or procedure may have changed since that time and members should check the up-to-date position.

This Guide to Good Practice is a set of guidelines to help Resolution members who are using social media, whether in an official or personal capacity. In particular, we explain how members can put the principles of the Code into practice when using social media.

The standards of Resolution members do not change because they are communicating through social media rather than face to face, or through other traditional forms of communication. However, the use of social media creates new circumstances to which the Code of Practice will apply. Members may find it helpful to review the Guides to Good Practice on Correspondence and Working with Litigants in Person, and the Law Society Family Law Protocol as a reminder of the principles that should apply.

Scope

The Guide covers any activity in which members manage, administer or participate within social media platforms. As well as this guidance you should keep up to date with your own organisation’s policy on social media, and we recommend the Law Society practice note on social media.

What are social media?

Social media are ‘websites that allow groups to generate content and engage in peer-to-peer conversations and exchange of content’[1]. Specific audiences may form online communities through different social media channels.

In this Guide we use ‘social media’ to include the following:

  • Forums and comment spaces on information-based websites (eg The Guardian, BBC, or the Law Society Gazette).
  • Social networking sites (eg Facebook or LinkedIn).
  • Video and photo-sharing websites like Flickr or YouTube.
  • Weblogs, including corporate and personal blogs.
  • Micro-blogging site (eg Twitter).
  • Forums and discussion boards such as LinkedIn Groups or Google Groups.
  • Online encyclopaedias, such as Wikipedia.
  • Any other websites that allow individual users or companies to use simple publishing tools.

Privacy

Be aware of the limitations of privacy online, in particular:

  • Social media sites cannot guarantee confidentiality.
  • Clients, your employer or potential employers may be able to access personal information.
  • Information about your location may be available for people to see.
  • Once information is published online it can be difficult to remove.

You should be clear when posting anything online whether they are doing so in a professional or personal capacity, and only post something online if they are happy with the whole world knowing about it. It can be helpful to draw distinctions between personal and professional lives by having separate and clearly different profiles, ensuring that the security settings are appropriate to the type of use that is planned.

If a client contacts you online through a private profile you should direct them to your professional profile.

Information published on external websites is in the public domain and cannot be easily removed. If you feel you need to, consider adding a disclaimer to your signature or profile stating your legal position with regards to the content you are publishing, for example “All views expressed are my own.”

Maintaining confidentiality

Outcome 4.1 of the SRA Code of Conduct requires that ‘you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents’.

Many members use sites that are not accessible to the public to share information about their practice. It is important that you are careful not to share confidential information about clients. Beware of the impact of any comments you make on your clients and their partner or family. You may not intend it but a client could identify themselves from your comment or mistakenly assume you are referring to them. An example of this might be where you refer to taking part in a client meeting or attending court and make a comment from which the client may be able to identify themselves. It is important to remember that the client’s perspective of that meeting or event is likely to be very different from ours. Pause before posting and think about how your client/s would perceive your intended comment.

 

Professional objectivity

One of the benefits of social media is the ability to share information, experiences and opinions easily.

You should be careful to maintain professional objectivity when making comments online. Before doing so, consider how this reflects on you as an individual, a professional, and on the firm you work for. One misplaced comment can impact on your reputation within the profession and publicly.

Treat online discussions the way you would any other networking activity. Be courteous and professional and remember that as members you are representing Resolution. If you disagree with opinions stated, respond with sound reasoning and in an appropriate tone, even in the face of provocation.

 

Entering into discussions with third parties

Community spaces are provided to facilitate information exchange and peer-to-peer discussion. Members should be aware that there are a number of groups that try to engage Resolution members in negative and conflictual discussions online. If you are ever unsure about how to respond, members are invited to contact the Communications team for advice (communications@resolution.org.uk).

 

Engage with your community

Social networks thrive on interconnectedness. You are encouraged to get involved in discussions, mention other users in your posts to engage them, and use appropriate and relevant hashtags or tagging to ensure your voice is not lost in the social media ‘noise’.

You should actively seek opportunities to re-post content that contributes to the dissemination and exchange of useful information about family law and Resolution-related topics. You may be asked to re-post content from other users. Consider these requests on a case-by-case basis.

Resolution has its own social media platforms and members are encouraged to link up their social media accounts or pages with the official Resolution version. You are encouraged to follow and re-post to reinforce the Resolution message and increase their own member profile.

Twitter: @ResFamilyLaw

Facebook: Resolution – first for family law

LinkedIn Company Page: Resolution – first for family law

 

Following and unfollowing

You do not need to automatically follow organisations or individuals who follow you. Resolution members should consider following relevant organisations including local referral organisations/individuals in the family law sector, commentators on family law and other accounts you can feel an affinity with. Regularly review accounts you are following and unfollow any that are no longer useful or inactive.

Be transparent

You can post as a Resolution member but with your own voice. Share your views and be honest about why you hold them. If you make a mistake you should rectify it as soon as possible.

Identify yourself as a Resolution member in your online bio. This helps to mark you as a member of Resolution and ensures you are listed when people search for Resolution on social media platforms.

 

 

APPENDIX A: SRA Warning Notice on Offensive Communications

https://www.sra.org.uk/solicitors/code-of-conduct/guidance/warning-notices/Offensive-communications–Warning-notice.page

Warning notice

Offensive communications

Issued on 24 August 2017

Status

While this document does not form part of the SRA Handbook, we will have regard to it when exercising our regulatory functions.

Who is this warning notice relevant to?

This guidance is relevant to you if:

  • you are a solicitor, a REL or an RFL and your communications fall short of the standards expected of the profession, whether in the course of private practice, in-house practice, or outside practice
  • you work in an SRA-regulated practice as a manager, consultant, employee or trainee, whether as a lawyer or an unqualified person, in relation to communications made by you during the course of business
  • you are an SRA-regulated law firm or the COLP in a SRA-regulated law firm

Our concerns

We have experienced a significant increase in the number of complaints we receive concerning inappropriate communications, specifically (but not limited to) in relation to emails and the use of social media, both inside and outside of practice.

Examples of the type of behaviour we have investigated, (and which we subsequently referred to the SDT), include:

  • making offensive or pejorative comments relating to another person’s race, sexual orientation or religion
  • referring to women in derogatory terms and making sexually explicit comments
  • making comments which harass or victimise the recipient
  • using language intended to shock or threaten
  • making offensive or abusive comments to another firm about that firm or its client, or to individuals who are unrepresented

The warning below focuses on social media (which in this context includes emails, texts and social media networks), but it is also relevant to communication by telephone or letter.

The SRA Principles and mandatory Outcomes

You must comply with the Principles and in particular:

  • Uphold the rule of law and the proper administration of justice – Principle 1
  • Act with integrity – Principle 2
  • Behave in a way that maintains the trust the public places in you and in the provision of legal services – Principle 6
  • Run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity – Principle 9

You must also have regard to the relevant Outcomes under the SRA Code of Conduct 2011, but in particular those referred to below.

Communications in the course of practice

Whether you are a manager, a consultant or an employee in a law firm, or you practise in-house, you must behave in a way that demonstrates integrity and maintains the trust the public places in you and in the provision of legal services.

In the context of letters, emails, texts or social media, this means ensuring that the communications you send to others or post online do not contain statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress.

In particular, you must achieve the following outcomes:

  • O(2.1) – you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings, and
  • O(2.2) – you provide services to clients in a way which respects diversity

We treat any communications which are offensive seriously, whether on the grounds of any of the ‘protected characteristics’ under the Equality Act 2010 or otherwise. The protected characteristics are age, race, disability, religion or belief, pregnancy or maternity, sex or sexual orientation, gender reassignment and marriage or civil partnership. Depending on the circumstances, you may be at risk under all of the Principles referred to above.

You should also note that where a court or tribunal makes a finding that you have committed an unlawful act of discrimination in a communication sent or posted by you, we will treat that as prima facie evidence of misconduct which may give rise to disciplinary proceedings.

Bear in mind that sending an offensive, threatening or harassing communication may also amount to a criminal offence (eg under section 1 of the Malicious Communications Act 1988, section 127 of the Communications Act 2003 or the Protection from Harassment Act 1997). Depending on the circumstances, committing any of these offences or failing to comply with the Equality Act 2010, could leave you at risk under Principle 1.

Inter-office emails

The Principles and outcomes referred to above apply not only when communicating with third parties outside the firm, but also to emails addressed to colleagues within the firm. You are expected to act at all times with integrity and the fact that you intended such communications to be private will not excuse your conduct.

Bear in mind also that once sent, you have no control over what happens to your email. Moreover, by using the firm’s email system, you run the risk that others may be able to access those emails.

Likewise, you cannot justify your conduct on the grounds that you did not intend to cause offence, or that the recipient(s) of your email was not offended. One of our key concerns as a regulator is to protect public confidence in the integrity and high standards of the profession; you should therefore bear in mind that you will be at risk of disciplinary action if you send an email which has the potential of causing offence and/or undermining public trust in the profession and that email subsequently comes to light.

Entering into an exchange with others which you perceive or intend to be humorous can pose a particular risk, especially when your humour is at the expense of others; what may seem to be light-hearted banter to you may be offensive to a third party. You should ensure that you do not inadvertently cross the line and become offensive in any of the ways referred to above.

Communications with clients

Most firms these days communicate with their clients by email or text rather than by letter. However, there are inherent risks in this. Such forms of communication by their nature are more ‘instant’ and tend to be less formal than letters.

This can lead to the blurring of the line between client and friend and the informality, together with the expectation of a quick reply, makes it easy to overlook the need to consider carefully what you are saying.

Whilst being on friendly terms with your client or using informal language is not of course a problem in itself, you must be careful to ensure that your communications remain professional, both in the tone and content, at all times. This is particularly so where it is foreseeable that the communication is likely to be disclosed to a wider audience at some point.

If a client makes derogatory, discriminatory or inappropriate references to others in their communications to you, you should not participate or endorse those comments. Nor should you pass the offensive comments on if it is not necessary to do so. Where your client’s comments are potentially in breach of the law, you should draw this to your client’s attention.

Communications with other law firms and litigants in person

It is not uncommon for emails between law firms in relation to a client’s matter to be robust, particularly in litigation. However, you should ensure such communications do not cross the line by using inflammatory language or being gratuitously offensive, either to the other side or about their client.

Your role is to act in the client’s best interests; antagonising the other side is unlikely to achieve this. You should remain objective and not allow the matter to become personal, regardless of the provocation or your client’s instructions. You are not your client’s ‘hired gun’ and you may be at risk under Principle 3 if you allow your independence to be compromised by being drawn into using offensive language or making offensive comments in order to meet your client’s expectations.

It is equally important to remain professional when dealing with an individual who is representing him or herself, or has appointed a McKenzie Friend. In a recent decision, the SDT fined a solicitor for his heated and abusive exchange of emails with a litigant in person, calling this ‘completely unacceptable’. The SDT said it was the solicitor’s responsibility to maintain his professionalism regardless of what that person may have done.

Managers and supervisors

You will be at risk under the Principles referred to above if you are a sole practitioner or a manager of the firm and you become aware of such emails, but do not take appropriate steps to stop the behaviour and deal with the sender(s) (for example, in accordance with your disciplinary policy).

This also applies if you are not a manager, but you are responsible for supervising a colleague’s work and do not take steps to stop the behaviour.

Bear in mind also that if the sender’s comments amount to serious misconduct, you have an obligation (as indeed does anyone in your firm) to report the individual(s) to us under O(10.4) of the Code. To do this, please see How to report.

Conduct outside practice

Solicitors, RELs and RFLs

If you are a solicitor, a REL or an RFL, Principles 1 (administration of justice), 2 (integrity) and 6 (public trust) continue to apply to you outside your practice, whether in some other business capacity or in your personal life. It is in this sphere – namely outside of practice – that we are currently receiving the majority of complaints.

The risk referred to above – namely that social media by its nature tends to encourage instant communication without the necessary forethought – tends to be greater when you are outside a work context. You must at all times be aware of the content you are posting and the need for professionalism.

This is especially true if you are participating in online discussion (whether this be on Facebook, Twitter, other social media, forums, blogs, etc) and you have identified yourself as, or are known to be, a solicitor. You should bear in mind the possibility that users will re-share the content you have posted on their own social network, potentially leading to rapid sharing with a huge number of users. Similarly, you cannot rely on your own privacy settings to prevent the posting from being passed on by others.

Even if you do not identify yourself as a solicitor, anonymity is not guaranteed; material which you post under a pseudonym may still be traced back to you or you may be identified as a solicitor if you include a photograph of yourself.

You should also consider carefully before retweeting an offensive comment. Unless you refute the content, you will be at risk of being seen as implicitly endorsing it. If it comes to your attention that a third party has accessed your computer and posted an inappropriate comment in your name on a social media network, you should take immediate steps to go online to refute the comment. It is advisable in any event to regularly audit your site to remove any material which makes you uncomfortable.

Trainees and other managers or employees

If you do not fall into the category above, the Principles do not apply to you outside your role in an SRA-regulated firm.

However, that is not to say that there might not be serious consequences should you get it wrong (eg significant embarrassment and damage to your reputation should your comments end up in the public domain, as well as the risk of internal disciplinary proceedings).

In addition, if you are a trainee solicitor, your conduct may in some circumstances have an impact on your entry into the profession (for example, where you have made discriminatory comments). In order to be admitted, we will assess your character and suitability and in doing so, will have regard to the SRA Suitability Test.

Your systems and procedures

You should have regard to the following Outcomes if you are the COLP for your firm, or you are a sole practitioner, manager or the head of an in-house legal department:

  • O(7.2) – you have effective systems and controls in place to achieve and comply with all the Principles, rules and outcomes and other requirements of the Handbook, where applicable
  • O(7.3) – you identify, monitor and manage risks to compliance with all the Principles, rules and outcomes and other requirements of the Handbook, if applicable to you, and take steps to address issues identified

Where a member of your firm sends or posts an inappropriate or offensive communication, it not only puts you at risk under the Principles above, it also has the potential of causing significant damage to your firm, both in terms of reputation and financially; for example, if clients react by withdrawing their business or are deterred from instructing your firm. In some circumstances, you could also be liable for your employee’s actions (eg if the communication amounts to victimising or harassing a third party).

To achieve O(7.3), you should assess the potential risks to your firm in light of the above, taking into account the nature and size of your firm to determine whether you need to put in place a social media policy or some other system or controls. It is likely to be easier to take disciplinary action against a staff member if you have a social media policy in place dealing with its improper use.

To be effective, you should ensure that members of your firm are conversant with any policy or system you put in place.

Remember: if a complaint is made against an individual in your firm, you may be asked to demonstrate how you have achieved the above Outcomes.

Enforcement action

Failure to have proper regard to this warning notice is likely to lead to disciplinary action.

Further guidance

For guidance on any of the above conduct matters, contact the Professional Ethics Guidance Team.

For advice on creating a social media policy for your firm, see the Law Society’s practice note.

The Crown Prosecution Service has issued guidance on hate crime, which can include offensive communications

[1] Wiggins, Effective Document and Data Management, 2012