Many lawyers tread with apprehension through the relatively uncharted waters of social media. This may be prudent or simply a lost opportunity.

Using social media could help you to connect with existing and potential clients, provide exposure to you and your firm, keep you abreast of legal and industry trends, and provide you with insight on your competitors.

If you’re avoiding social media, consider the potential audience you’re missing. According to a 2014 lawyer survey conducted by the OBA, 69% of respondents said that they read social media everyday and only 4% said they never read social media. Meanwhile, 34% of respondents actively used social media (writing, posting, sharing content) everyday. As social media has become more embedded in daily activities, its use among lawyers is probably even more pronounced today.

How do you ensure you’re using it to its fullest potential and avoiding the risks? Here are 10 issues lawyers should consider when using social media.

Have a social media plan

Many people and companies participate in social media for the sake of saying they participate in social media. Don’t bother. An unclear social media strategy could actually cause you more harm than good.

Like any other marketing initiative, assuming one of your objectives is marketing, you need a social media plan that outlines your specific and measurable goals. Are you trying to learn what your potential clients care about? Are you trying to attract clients? Are you trying to attract lawyers or employees? Your social media goals may start off modestly and develop into more specific and ambitious initiatives. There are a number of books on the subject, and even ones that cater to lawyers. You may find it helpful to do some research and develop your plan.

Bob Tarantino, media and entertainment counsel with Dentons, and prolific social media contributor says, “A social media plan can be as simple as branding yourself as a source of insight and information about your chosen practice area. But your use of social media should emphasize the ‘social’ - make sure your personality shines through!”

Pick the right social media platform and understand the Terms of Use

Not all social media platforms are the same. Each one may attract different audiences and have different social ecosystems you will need to respect. You need to consider your primary social media goals and objectives and align those with the appropriate social media platform.

First, don’t pick too many platforms and risk spreading yourself too thin. Focus and master one or two that meet your goals and objectives. Facebook, Linkedin, Twitter, Instagram, Pinterest and Tumblr, just to name a few, have different users who will expect to consume content and engage in the platform differently.

Additionally, familiarize yourself with the applicable Terms of Use of your chosen platforms so you understand whether you’re granting the platform any specific rights that you didn’t intend to grant.

When asked why Bob Tarantino selected the social media platforms he’s selected, Tarantino says, “I think every lawyer should have a presence on LinkedIn and Twitter. LinkedIn is the contemporary version of those old lawyer directories – if you’re not on there, your peers might wonder if you’re still actively practicing. Twitter is where the conversation is, with breaking news and real-time reactions – if you want to be heard, dive in and speak up.”

Have a Social Media Policy

Diana Miles, Executive Director, Organizational Strategy and Professional Competence at the Law Society of Upper Canada reminds us that, “Lawyers should be mindful of their obligations to assume complete responsibility for their practice of law. They are also required to directly supervise non-lawyers working for their firm.”  If you manage a firm or a company, consider establishing a social media policy. The policy should set out the do’s, don’ts and general social media best practices. The reality, like it or not, is that your employees and colleagues are probably already using social media, so you should put your mind to how you expect them to conduct themselves.

The lines between personal and professional personas often blur online. Without proper direction and expectations, employees and colleagues are likely to post something that is sensitive, confidential or generally embarrassing. As an employer or a partner at a firm, social media could expose you to a whole host of liability issues like copyright infringement and defamation claims. Consider creating a policy that provides guidance and enforce it.

Pascale Daigneault, managing partner of the personal injury firm Fleck Law, advises firm managers to set a social media policy for staff, even if the firm itself isn’t engaged with social media. “The true value of a social media policy is in ensuring that safeguards are in place before the first negative incident. Not every scenario can be anticipated and avoided, but establishing and communicating expectations for employee conduct will provide clarity on how infractions will be handled.”

Miles adds, “Having a policy may reduce the risks of firm employees breaching confidentiality or of the public attributing inappropriate statements by firm employees on social media to the firm.”

The LSUC provides a sample Online Activity and Social Media Policy and a sample Confidentiality Agreement that may be helpful to you.

Lawyers’ Rules of Professional Conduct

As lawyers, we can’t forget that the Rules of Professional Conduct apply on social media as well. Since social media can present some professional risks, all legal practitioners should carefully review the Rules of Professional Conduct when considering the use of social media for marketing or personal purposes.

"In an age where short, pithy comments 'trend' or are repeatedly ‘shared’ on social media, it could be tempting to market legal services this way,” says Diana Miles. “Be mindful that the same rules apply to marketing via social media as to traditional print advertising.  Lawyers must ensure that their marketing on social media platforms is true, accurate, and verifiable and that it does not mislead, confuse, or deceive the public."

In particular, lawyers in Ontario should look at Rule 4.2 on marketing, which addresses the ways lawyers are able to market themselves to the public using various media, so long as the marketing: (a) is demonstrably true, accurate and verifiable, (b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and (c) is in the best interests of the public and is consistent with a high standard of professionalism.

In addition, when using social media for marketing or personal purposes, consider Rule 1, prohibiting conduct unbecoming of a barrister or solicitor, which is defined as “conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession”. While it may feel cathartic to declare your disbelief and frustrations with a judge, opposing counsel, colleagues or that unbearable client, don’t post it on social media. Bottle it up, like generations of lawyers did before us.

Confidentiality

Confidentiality deserves special attention. Rule 3.3 of the Rules of Professional Conduct relates to confidentiality. It says that a lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so. The Rule also makes specific reference to literary works, stating that if a lawyer engages in literary works, such as a memoir or an autobiography, which we can easily assume includes social media posts, the lawyer shall not disclose confidential information without the client’s or former client’s consent.

Consider whether your Tweet or Facebook post breaches a confidentiality agreement related to your latest business transaction or violates a settlement agreement on a recent litigation matter. It may also be wise to remind your client as well. Although your client may be excited about settling his most recent lawsuit for $100,000, it would be best if he didn’t post something like: “Yes, I finally got those lying cheats to pay! Cha-ching - $100,000! Las Vegas, here I come!”

Social Media Evidence

As you might imagine, social media could be used in many different types of litigation: criminal law, employment matters, business disputes, defamation and intellectual property disputes. Consider if you can use it in your next case. If using social media in your next matter, careful not to make broad requests for social media for discovery purposes, particularly if that search is unreasonable or unrelated to the claim.

Also, consider whether you need to advise your clients on how to use social media so that it does not hurt any of their cases. It may be more difficult defending your client in a slip and fall case if she is posting photos of herself rock climbing on a recent vacation. Having said that, be careful not to advise clients to delete existing social media sites particularly if there is a duty to preserve relevant evidence that they know, or reasonably should know, will likely be requested in reasonably foreseeable litigation.

Copyright Issues

Copyright laws apply to social media. Copyright applies to original works in all forms of media, including photos, music, videos and written content. Copyright law gives the owner certain exclusive rights in the work, such as the right to display the work and to make copies of the work. At its most basic level, copyright is exactly that – the right to copy or the right to reproduce.

Copyright infringement is something to consider in your social media activities. Using a third party’s photograph or other content in your social media activities could be a violation of that person’s copyright. Just because someone has posted a photograph on Facebook or Instagram, does not mean they have granted you a license to use that content in another context. A rights holder may file a takedown request with the social media platform to have the infringing content removed from the platform.

In Canada, a “fair dealing” exception may apply. The Supreme Court of Canada has referred to fair dealing as a “user’s right” to use copyrighted content without a license under specific circumstances, for example, using the third party content for criticism and review.  Ensure a proper analysis is done in order to be able to rely on that exception.

As noted above, familiarizing yourself with the applicable Terms of Use will also tell you what kind of copyright license you’ve granted the platform and its users. As an example, the Twitter terms say that “… you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Others will be able to freely retweet your content throughout Twitter and your content could also appear on Twitter’s broadcast partners’ networks.

Trademark Issues

Trademark laws also apply online. Trademarks are intended to identify the source of a product or service and distinguish them from others. You don’t necessarily need a trademark registration to assert trademark rights. Owners can have common law rights if a trademark is being used, even without registration.

Using confusingly similar trademarks in a social media post for example could invite a trademark infringement claim, particularly if the confusingly similar trademark is being used to promote similar or related products or services. This could include use of words and phrases in hashtags and other platform specific captions.

Defamation

Social media may be credited as the most important technology that has helped to develop defamation law. That’s a nice way of saying that social media is abundantly peppered with defamatory statements and as a result defamation is the most common internet tort. Widespread distribution and uncertain jurisdictions adds an interesting layer to the potential problems. Both the individual and the employer could be liable.

Defamation is essentially a derogatory false statement which has the potential to damage the reputation of a person or company. It must reflect badly on the victim, and the court will determine the ordinary meaning of the applicable words. Your intent not to defame is irrelevant.

There are a number of defenses to defamation. The most important one for this article is “truth”, which means you won’t be held liable if you say something about someone that you can prove is true, even if that statement might be damaging to that person’s reputation.

Friending Judges, Colleagues and Opposing Counsel

Building your social media networks has become a game for many – more “friends”, more “connections”, more “followers”. With that said, be mindful of whom you connect with online. If you are “friends” with judges or opposing counsel, consider your audience and consider whether these communications are likely discoverable and potentially prejudicial.

According to the Hon. Justice Jamie K. Trimble, a justice of the Superior Court, “A lawyer should not attempt to “connect” or “friend” a judge.  Unless you are a friend or someone who deserves a special position in the judge’s Facebook, MySpace or LinkedIn page, you have risked compromising the judge’s impartiality and privacy. Further, the mere making of a request to connect or friend the judge may have created an impression in that judge’s mind of you that may not be favorable.” Justice Trimble presents several etiquette tips for interacting with judges and Masters in his JUST. article, How to Interact with Judges on Social Media[link].

About the Author

Dan is Senior Legal Counsel for CBC, with extensive experience in the media and entertainment industries, providing strategic advice on a variety of business transactions including negotiating and drafting various intellectual property, technology, advertising, licensing, distribution and new media agreements. Dan is an adjunct professor at Osgoode Hall Law School and George Brown College. Dan successfully managed the OBA Entertainment, Media and Communications Section newsletter for nine years, publishing hundreds of articles geared to the media and entertainment bar. He is Chair of the OBA JUST. Editorial Board.