SOCIAL MEDIA AND LAWYER'S ETHICS


Social media is an excellent marketing / communication channel because it provides the ability to connect and engage directly with fans and customers online. Law is almost entirely a relationship based business / profession, which infect called as calling, so this interactivity can be particularly powerful for attorneys. So every one now want to establish a presence on major social media outlets like Facebook, Twitter, and LinkedIn. However, lawyers are held to a higher ethical standard than most other professions, and social media comes with some potential ethical traps for the unwary attorney. For that we have to go through the Bar Council of India Rules 36 under Section IV, which is of prime importance and states as follows:-
An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
                                                An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organization or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
Here are major ethical concerns of social media that all lawyers should know about.
1. Advertising
Most social media posts are pictures of food or pets, new relationship statuses, or complaints about the everyday annoyances in life. You certainly would not assume that such posts would be considered advertisements.
However, under the Bar Council of India Rules 36 under Section IV, any communications made by an attorney regarding the availability of legal services may be considered “advertising material.”
Under this definition, it’s certainly possible for a lawyer’s social media profiles and posts to be considered advertisements, in which case there are a few ethical concerns that come into play. The two major ones are regarding solicitation and false or misleading statements.
But as a general rule, attorneys should be very careful about interacting with anyone on social media if it’s apparent that the person has legal questions or possible legal issues. Whenever that’s the case, the rules on attorney advertising will apply, and the necessary disclosures must be made.
2. Solicitation
Prohibited solicitation is one of the trickiest ethical concerns of using social media for lawyers. The Bar Council of India Rules 36, definition of “solicitation” is may be fairly broad and includes any communications whether in person, in writing, or via electronic means (which would include social media posts).
Under Bar Council of India Rules 36 under Section IV, lawyers may not solicit employment by anyone unless the person is also an attorney, or has a prior existing relationship with the attorney (e.g. family members, close friends, or former clients).
                                                  This of course excludes situations where a prospective client has contacted the lawyer about representation beforehand. However, social media, by its very nature, is intended to facilitate easy and open communication between people.
                                     Prospective clients may be posting about their legal questions and concerns on different social media sites, looking for help or advice. You can probably imagine how replying to those posts or messages may present a tricky ethical situation for attorneys.
                                 The point is, in order to avoid making prohibited solicitations on social media, just be sure to choose your words wisely if you are posting anything legal-related.
3. False/Misleading Statements
Any statement regarding a lawyer’s services falls within the scope of Bar Council of India Rules 36 under Section IV, which prohibits communicating false or misleading information. This would almost certainly include social media posts about an attorney’s practice. Such statements may also be deemed advertising material, as explained above.
The major concern with social media is that because it is such a fluid and open space for communications to occur, there can be a tendency for people to make bold claims about themselves, or say things which are exaggerated, misleading, or untrue.
For instance, seemingly harmless things like stating that you are an “expert” or listing your “specialties” on your profile might get you into hot water in certain situation, even participating on a third party Q&A website where the website claimed that the people answering questions were “experts” was enough for the Bar Council to deem it a misleading claim.
Attorneys should be particularly careful about the information they put in their social media profiles and how they portray themselves in order to avoid ethical issues.
4. Attorney-Client Relationship
The attorney-client relationship is one of the most important parts of being a lawyer. It’s a highly sensitive and important relationship which comes with certain legal rights and a lot of expectations for both parties. Thus, it’s imperative to walk the fine line between the formation and non-formation of an attorney-client relationship with extreme caution.
At present it is recognized that an attorney-client relationship can inadvertently be formed via electronic communications. In the event that one is formed, the corresponding obligations would come along with it, e.g. a duty to maintain confidentiality and avoid conflicts of interest.
Any time an attorney is communicating with someone in his or her professional capacity, concerns about the attorney-client relationship may arise. Messaging with people on social media is no exception, and again because social media inherently involves such a high level of interactivity, it should always be managed with care to avoid creating an attorney-client relationship inadvertently. Under Bar Council of India Rule 17 under II, provides duty to advocate that an advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act. This provide to an advocate not to disclose communication between him and his client.
5. Not appear for opposite parties
An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter as per Bar Council of India Rules 33 under Section II. Therefore a lawyer should be very careful in posting on social media regarding any legal matter which may be considered as his advice and which may bring some ethical issues in future.
6. Not to negotiate directly with opposing party
Under Bar Council of India Rules 33 of Section III, An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties. Therefore an advocate should be very careful in writing for any legal issues as his opposite party may also available on the social media
               Social media has revolutionized the internet in many ways, creating a massive and open communication channel and making the world a more connected place. It’s a powerful way for any business to engage and communicate with both prospective and existing customers.
Social media is definitely a good marketing strategy for an  advocate / law firms. However, it poses a number of ethical challenges for attorneys around advertising, client communications, and the unauthorized practice of law. It’s important for lawyers to understand the ethical rules and use social media carefully in order to avoid an ethical violation with the state bar.
                                                              In this way we see that Bar Council of India Rules are already there, under which all the ethical rules regarding advocates in terms of social media can be covered. Moreover it will be better to have specific rules regarding this to cover the ethical question by making it more clear and transparent as new development in the area of social media and internet is taking place day after day, so rules can be framed looking into the role of social media in contest to present scenario.
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