In July 2013, an article in LawTalk 812 entitled “Social media’s legal criteria”, quoted figures showing that about 2.3 million New Zealanders, or roughly 51% of the population, were on Facebook alone. By January 2018 this figure had grown significantly, with statistics company Statista estimating that 73% of the population, or roughly 3.5 million Kiwis, had accounts with the social media giant.

Other social media platforms such as YouTube, Instagram, Pinterest, Twitter and Snapchat have also experienced rapid increases in New Zealanders subscribing to their services. In 2018 YouTube overtook Facebook as New Zealand’s most popular social media platform of choice. Whatever your views on the phenomenon, it is clear from its growing popularity that social media is here to stay.

This proliferation of personal users has inevitably seen a related increase in the number of businesses using such platforms for marketing purposes. As demonstrated by Donald Trump’s use of social media throughout his 2016 presidential campaign and current presidency, professional and personal social media identities can become so entwined and intermingled that differentiation is often difficult and/or artificial. Accordingly, lawyers need to be aware of the potential consequences of their use of both personal and professional social media accounts. What follows are some matters that lawyers should consider when publishing content on social media platforms:

Protecting your personal information

One of the most important things to remember when using social media is that once you have posted, uploaded or commented on a social media platform you effectively lose control of how that content may be used and how far it may be disseminated. This is particularly true if your social media account is public, ie, content is made available to the world at large.

Public accounts are useful for businesses and professionals as they are available to everybody; however, this is not ideal for accounts containing personal information. Restricting access to your personal accounts – often by changing your privacy settings to “private” – will provide a higher degree of privacy, but limiting access in this manner does not guarantee such material will remain with those with immediate access. In other words, while you may only intend that information goes to select individuals, or “friends”, there is not necessarily any reasonable expectation that that information will not be disseminated further. As stated by the High Court in Senior v Police [2013] NZHC 357:

“The Court takes judicial notice that persons who use Facebook are very aware that the contents of Facebook are often communicated to persons beyond the ‘friends’ who use Facebook. What information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of ‘friends’.”

While the comments of the High Court in Senior v Police arose in the context of an alleged criminal breach of a protection order, lawyers in many other fields will recognise that social media is playing a larger role in proceedings before all courts. Comments from Chief District Court Judge Jan-Marie Doogue, reported by Stuff on 9 April 2018, indicate that social media evidence is particularly prevalent in the Family Court as parties involved in disputes often use it to communicate back and forth.

Professional responsibility and social media

In August 2017, the United Kingdom’s Solicitors Regulation Authority (SRA) issued a warning notice to British solicitors concerning their professional and private use of social media. That warning followed an increase in reports of offensive and inappropriate posts and came just a week after the Solicitors Disciplinary Tribunal suspended for 12 months, with a £25,000 fine, a solicitor for anti-semitic and anti-Zionist comments he posted through his personal Facebook account. The Tribunal found that the solicitor’s comments had caused “offence to the public to the detriment of the collective reputation of the profession” and that “being a solicitor was not a feature of one’s being that one could switch on and off as one chose.” (SRA v Mahmood, Case 11625-2017, 15 August 2017).

Back in New Zealand, the Lawyers Complaints Service and the Law Society Registry have also experienced an increase in the number of matters before them concerning lawyers’ use of social media.

Complaints about inappropriate use of social media fall into two main categories: inappropriate/misleading statements and misuse of ‘private’ information.

Complaints in the first category usually take the form of an allegation that a lawyer has published something on a social media platform that the complainant considers improper or offensive. The most common examples of this kind of complaint include allegations that a comment by a lawyer is derogatory, offensive or deceptive.

In most cases complaints in this category are not likely to progress beyond an initial referral to a standards committee. In contrast to the United Kingdom, the disciplinary process in New Zealand is more limited to the conduct of a lawyer in their professional capacity. A lawyer is entitled to the same freedoms of speech as any member of the public.

Comments relating to role as lawyer

However, when a lawyer’s social media comment(s) relates to their role as a lawyer, a complaint can prompt further disciplinary response. As alluded to above, the disciplinary regime is primarily concerned with a lawyer’s conduct in the course of carrying out the work of a lawyer – or in other words, conduct at a time when providing regulated services. When determining whether the posting of a comment on a social media platform is made at a time when providing regulated services, standards committees consider all the circumstances in which the comment was made. Factors that are commonly key to any such consideration are: the nature and purpose of the comment, the nature of the platform on which the comment is made, and whether the commenter’s profile identifies/relies on their status as a lawyer.

For example, it is not unreasonable to expect that a lawyer’s LinkedIn account will be more likely to fall under disciplinary scrutiny than a comment made on a lawyer’s personal Facebook account. Likewise, a comment from a lawyer concerning proceedings they are involved in will attract more scrutiny than an expression of opinion on political matters unrelated to the lawyers’ practice.

The second, and less common, category of social media complaints relate to allegations that a lawyer has improperly used social media in the course of their representation of a client. As these complaints concern the representation of a client they are more likely to be connected with the provision of regulated services.

Most commonly these complaints concern the alleged improper procurement and/or disclosure of social media evidence. Generally speaking, obtaining evidence available to a client through their own social media account(s) is unobjectionable. However, issues may arise where a lawyer uses their own social media account to progress the interests of a client. Such instances are likely to be rare and it is not immediately clear whether such an approach would raise issues of professional responsibility, however some guidance may be found in rules 6, 7, 7.3 and 13 of the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008.

6 In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.

[...]

7 A lawyer must promptly disclose to a client all information that the lawyer has or acquires that is relevant to the matter in respect of which the lawyer is engaged by the client.

[...]

7.3 A lawyer is not required to disclose information to the client if –

(a) the client has given informed consent to the non-disclosure of particular information; or

(b) the disclosure would be likely to place at risk the health (including mental health) or safety of the client or any other person; or

(c) disclosure would be in breach of law or in breach of an order of the court; or

(d) the information relates to a proposed retainer that the lawyer has declined.

[...]

13 The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

Registry social media issues

Social media issues dealt with by the Law Society’s Registry typically take the form of individuals who have misclassified themselves on a social media platform in potential breach of ss 21(b)(i) or 22 of the Lawyers and Conveyancers Act 2006. Examples of this kind of breach include:

• A new graduate who, having recently completed their professionals course and having been admitted to the High Court, identifies themselves as a lawyer on LinkedIn. Such a person would not be a lawyer as defined by s 6 of the Act, not being a person who holds a current practising certificate as a barrister or as a barrister and solicitor.
• A barrister who, having recently joined the bar, forgets or omits to update their LinkedIn account and still advertises themselves as a barrister and solicitor.

More serious issues that the Registry deals with are when an applicant’s use of their social media account has raised issues as to whether they are a fit and proper person to practise law. For example, in Lincoln v New Zealand Law Society [2018] NZHC 3050 the High Court found that the use of a Facebook post to threaten and intimidate was reprehensible and inconsistent with the requirement that the applicant be a fit and proper person to practise law. Mr Lincoln has subsequently appealed the High Court decision.

Be careful but don’t be paranoid

In brief, lawyers should take care before uploading information on to any social media platform.

Unlike verbal or more traditional forms of written correspondence, social media content has much greater potential to reach unintended audiences, including the Lawyers Complaints Service.

Although complaints concerning social media are still rare, and disciplinary findings rarer, as a general rule, practitioners should treat social media in the same way as any other form of written publication to the world at large – if you wouldn’t want information to be disseminated that far you may wish to reconsider posting it.

Jonathan Sutton is a Legal Standards Officer with the New Zealand Law Society