SOCIAL MEDIA ETIQUETTE FOR LAWYERS PRESENTED BY ASSISTED

SOCIAL MEDIA ETIQUETTE FOR LAWYERS PRESENTED BY: ASSISTED BY: JUSTICE GILLIAN LUCKY SHACARE’ GORDON (Attorney-at-law)

SOCIAL MEDIA Over the past two decades came the revolution of technology - mainly in the form of the computer and the internet. These tools created a significant change in the world of work. Globally, professionals had to study and adapt to the new developing technology. Social media is yet another force that has emerged in the past few years. It is something that we all use - even if used to the smallest degree. As attorneys we must all learn to utilize this tool while staying within the confines of the law and adhering to the rules that govern our profession.

WE ALL USE SOCIAL MEDIA IN ONE WAY OR ANOTHER

• Using Social Media is not an issue. • What could be an issue is the way it is used. • As an attorney, you are INEVITABLY held to a higher standard than the general public.

CODE OF ETHICS Legal Profession Act, Third Schedule

In Relation to the Profession and Himself PART A 1. An Attorney-at-law shall observe the rules of this Code, maintain his integrity and the honour and dignity of the legal profession and encourage other Attorneys-at-law to act similarly both in the practice of his profession and in his private life, shall refrain from conduct which is detrimental to the profession or which may tend to discredit it. Even in your private life, one must be sure to refrain from any activity which would bring the profession into disrepute. Professional and personal life is often intermingled and might at times be difficult to separate.

Personal v. Private “Sometimes attorneys will develop both a private and public persona on the web, believing the two will remain separate. Unfortunately, this is simply not the case. It takes very little effort to perform research on the web and to connect the public and private behaviours of someone who has written something offensive or upsetting. In an infamous case, an assistant Michigan attorney general was fired due to his online (and perhaps offline) behaviour surrounding the student body president of the University of Michigan. The attorney argued that his speech was political and also had nothing to do with his work as an assistant attorney general. But in the end, the public and private became much too intertwined, and the attorney general was left with no choice but to fire him. Recently the student won a verdict of $4. 5 million for invasion of privacy, defamation, abuse of process, and intentional infliction of emotional distress. The attorney in this case did not hide who he was, but he did try to argue that his actions had nothing to do with his work. However, as a public servant and as an attorney, it was simply impossible to separate the public employee from the (not so) private behaviour, and that cost him his job. He was fired for, “violating office policies, engaging in borderline stalking behaviour, ” and more. The attorney sometimes posted his online attacks while at work, and engaged in behaviour that was, “not protected by the First Amendment…”……. It is unwise to believe that anyone can live two separate lives online. If one engages in controversial behaviour, the result will be a magnifying glass of attention. In turn, it is virtually impossible for the individual to keep his private and public online lives from colliding. ” -Social Media for Law Firms: An Overview By Jennifer Ellis

The rules concerning social media and the profession are currently more or less non existent in Trinidad and Tobago. This area is novel and everyone is on the learning curve. One must just be sure to err on the side of caution.

Our Code of Ethics has not been amended to include the new wave of technology or many other facets of the world today. HOWEVER Does this mean - that silence in the Code of Ethics on particular issues will not cause a breach?

Our Code of Ethics is undoubtedly archaic and a variety of issues are not addressed. HOWEVER PLEASE NOTE. Part A 53. Where in any particular matter explicit ethical guidance does not exist, an Attorney-at-law shall determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

POSTING PHOTOS/VIDEOS

WHAT TYPE OR KIND OF PICTURE MIGHT BE SAID TO BRING THE PROFESSION INTO DISRIPUTE?

ARE PICTURES IN SWIMSUITS APPROPRIATE?

DOES THE TYPE OR KIND OR SWIMSUIT MAKE A DIFFERENCE? DOES THE POSE IN THE PICTURE MAKE A DIFFERENCE?

CARNIVAL Carnival is a part of the culture in Trinidad & Tobago. ‘Wining’ in parties or during carnival celebrations is also a norm. Are ‘raunchy’ videos or pictures posted during Carnival time appropriate because it is part of our culture?

POSTING COMMENTS/OPINIONS

Posting comments Be aware of the statuses you post even if you show no indication that you are an attorney-at-law on your social media platforms. Once posted on the internet – even if deleted, it just takes one person to take a screenshot.

In the UK In the United Kingdom a law firm partner who sent a series of offensive messages about various religions has been suspended from practising for 18 months. The Solicitors Disciplinary Tribunal told Deborah Elizabeth Daniels that she had caused reputational damage to the profession by identifying herself as a solicitor and behaving in a way which lacked integrity in such a public way. Daniels was charged with using her Twitter account over a 14 -month period to post offensive words and/or express hostility towards Islam, Judaism and Catholicism, and to use offensive or discriminatory words in response to a photograph of a drag artist. At all times her Twitter account publicly identified her as a solicitor. Daniels, 71 this year, has been a solicitor for 32 years and is the compliance officer at West Yorkshire firm Bird and Daniels, where she is one of the two partners. The first tweet flagged up by the Solicitors Regulation Authority was from January 2016, when Daniels tweeted that all women ‘must carry staining pepper spray, learn self defence and do everything necessary to rid the world of Islam’. Several respondents pointed out her status as a solicitor and tweeted replies with the SRA’s twitter handle included. Daniels tweeted to individual commenters that Islam was a ‘sexist cult’. Later she suggested that Muslims be put in a work camp and ‘educate them or get rid’.

A member of the public who followed Daniels’ tweets provided a witness statement to the tribunal which said he was shocked and disappointed to discover a highly-educated professional woman should post such messages. Daniels admitted posting the messages and accepted they were offensive, stating that she had recently read about frightening events in the Middle East and not reflected on what she was saying. Around a year after the first Islam tweets, Daniels sent three messages which referred to sexual crimes committed by members of the Catholic church. She also sent offensive messages related to Judaism and retweeted someone else’s message talking about a global conspiracy to rule the world. She denied being antisemitic and said her tweets were prompted by reports of killings of Palestinian children. Daniels submitted in mitigation that she had undertaken ‘extensive and painful soul searching’ since sending the tweets and gained insight into why she sent them in the heat of the moment. She has now removed herself from social media. Without her presence, she said, the firm would cease to exist, putting five jobs at risk. The tribunal accepted that Daniels showed ‘genuine remorse’ and a degree and insight, and was unlikely to repeat her misconduct. The 18 -month suspension was deemed to strike a balance between an appropriate punishment, recognition of the harm caused to the profession, the need to provide public protection and the mitigating factors presented. She will also pay £ 11, 000 in costs.

Eventually, as this area of law progresses, we could undoubtedly see an influx of persons making complaints to the disciplinary committee about the social media comments or opinions by attorneys. To this end – always be cautious and THINK BEFORE YOU POST!

Client confidentiality Tweeting the details of your live case can definitely cause a possible breach of your client’s confidentiality. Do not take for granted that social media is a public platform and you have a duty to your client.

Client confidentiality “People read what you post, and the seemingly informal forum of a social media site is no shield for ethical violations of improper client disclosures. An Illinois public defender found this out the hard way, being found to have unethically revealed confidential details about a case when she posted comments such as, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch’” and “Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me? ” She lost her job. Attorneys must also be careful what they post with regard to their own personal life. For example, a Texas attorney requested and received a continuance because her father had passed away. The judge who granted her continuance was subsequently notified of comments on Facebook chronicling days of drinking and partying. Another attorney was summoned to appear before the Florida Bar and fined $1, 200 for calling a judge an “Evil, Unfair Witch” on the attorney’s blog. Attorneys should also warn their clients about revealing information through social media during a pending case, as doing so could result in the client unknowingly waiving the attorney-client privilege, and opening up information for discovery. This happened in a 2010 case where the client discussed attorney-client conversations in his e-mails, blogs, and instant messages with family and friends. The court ultimately found that the client had waived his attorney-client privilege, entitling the opposition to discovery of the information disclosed online, including his motivation for pursuing litigation, the litigation strategy, and other facts surrounding the case. ” -American Bar Association, Attorney Ethics and Social Media 2015

Comments about Judicial Officer Part A, Rule 36 (1) An Attorney-at-law shall maintain a respectful attitude towards the Court and shall not engage in undignified or discourteous conduct which is degrading to the Court. (2) An Attorney-at-law shall encourage respect for the Courts and the Judges. (3) An Attorney-at-law shall support Judges and magistrates against unjust criticisms. Part B Rule 19 An Attorney-at-law shall not engage in undignified or discourteous conduct which is degrading to the Court or his profession. ” Part B Rule 20 An Attorney-at-law shall not wilfully make false accusations against a Judge or magistrate.

Comments about Judicial Officer It goes without saying that negative comments by an attorney, on social media about a judicial officer is a Breach of the Code of Ethics.

? S T H G U O H T

ADVERTISING & SOLICITING

PART A 7. The best advertisement for an Attorney-at-law is the establishment of a well merited reputation for personal integrity, capacity, dedication to (a) to solicit business by circulars or advertisements or interviews not warranted by personal relations; (b) to seek retainers through agents of any kind.

PART B (3) An Attorney-at-law shall not advertise for business indirectly by furnishing or inspiring newspaper comment concerning cases or causes in which an Attorney-at-law has been or is connected or concerning the manner of their conduct, the magnitude of the interests involved, the importance of the Attorney-at-law’s position and any similar self-laudations. Provided however that— (a) an Attorney-at-law may permit limited and dignified identification of himself as an Attorney-at-law— (i) in political advertisements relevant to the course of a political campaign or issue; (ii) in public notices where the announcement of his professional status is required or authorised by law, or is reasonably necessary for a purpose other than the attraction of potential clients; (iii) in reports and announcements of bona fide commercial, civic, professional or political organisations in which he serves as a director or officer; (iv) in and on legal textbooks, articles, professional journals and other legal publications and in dignified and restrained advertisements thereof; (v) in announcements of any public address, lecture, or publication by him on legal topics, provided that such announcements do not emphasise his own professional competence and are not likely to be regarded as being concerned with the giving of individual advice by him

(b) An Attorney-at-law may speak in public or write for publication on legal topics so long as he does not thereby emphasise his own professional competence and is not likely to be regarded as being concerned thereby with the giving of individual advice. (c) The following cards, office signs, letterheads or directory listings may be used by an Attorney-at-law but in a restrained and dignified form: (i) a professional card identifying the Attorney-at-law by name and as an Attorneyat-law giving his decorations and degrees, legal or otherwise, his addresses, telephone numbers and the name of his law firm or professional associates so however that such cards are not published in the news media and are only handed out on request and for the purposes of identification or address; (ii) a brief professional announcement card to be delivered only to Attorneys-atlaw, clients, personal friends and relations and government bodies and stating new or changed associations or addresses, changes of firm’s name or like professional matters; (iii) a sign or a size and design compatible with the existing practice of the profession, on or near the door of the office and in the building directory identifying the law office; (iv) a letterhead identifying the Attorney-at-law by name and as an Attorney-at-law and giving his decorations and degrees, legal or otherwise, his addresses, telephone numbers and the name of his law firm and of his associates; (v) a listing in a telephone directory, a reputable law list, legal directory or biographical reference giving brief biographical or other relevant information; and any such professional card, office sign, letterhead or listing may state the Attorney -at-law is also a notary public.

“Is Social Media Advertising? …. If your account is completely private and you share only with friends and family, chances are very good that your posts would not be considered advertising. However, the question becomes cloudier when you open up your account to a larger group. My position is that if you are not certain whether your post is advertising, assume it is and act accordingly as far as your jurisdiction’s rules. Some jurisdictions define advertising very clearly. Others do not. …. ” -Social Media for Law Firms: An Overview By Jennifer Ellis THOUGHTS? ?

Attorney/Client relationship

Be wary of unintentionally creating an Attorney-Client Relationship. Attorney-client relationships may be created online just as they can be created offline. Circumvent the appearance of beginning an attorney-client relationship. Do not advise any course of action with respect to a particular set of facts, and take caution in asking or answering specific questions.

“Attorneys should also be careful not to inadvertently form attorney-client relationships through online activities. Model Rule 1. 18 provides that, “a person who discusses with a lawyer the possibility of forming a attorney-client relationship with respect to a matter is a prospective client. ” Moreover, an attorney-client relationship could be inadvertently formed if a client “reasonably relies” on what they believe to be the attorney’s legal advice through social media. Thus, when using social media, attorneys should not only speak in generalized terms, but also post explicit disclaimers stating that any interaction does not form an attorneyclient relationship in order to inform the user and ultimately rebut any reasonable belief that one exists. ” -American Bar Association, Attorney Ethics and Social Media 2015

CONSIDER: IS IT APPROPRIATE TO ADD CLIENTS AS “FRIENDS” OR FOLLOW THEM ON SOCIAL MEDIA PLATFORMS?

CLIENT COMMUNICATION THROUGH SOCIAL MEDIA Also consider whether it is appropriate to communicate on social media platforms such as Whatsapp with Clients? What safeguards can you put in place if the answer is yes?

GENERALLY 12. An Attorney-at-law should also bear in mind that he can only maintain the high traditions of his profession by being a person of high integrity and dignity.

BREACH OF THE CODE

35. (1) Breach by an Attorney-at-law of any of the Rules contained in this Part shall constitute professional misconduct and an Attorney-at-law who commits such a breach shall be liable to any of the penalties which the Disciplinary Committee and/or the Court is empowered to impose. (2) Breach by an Attorney-at-law of any of the provisions of Part A of this Code while not automatically amounting to punishable professional misconduct is a derogation from the high standards of conduct expected from an Attorney-at-law and may, depending on the circumstances of the particular case, amount to such misconduct or form a material ingredient thereof.

QUESTIONS?

THANK YOU!!