When David Fraser started blogging as a junior associate at a Halifax law firm, social media was in its infancy and he had little counsel on the potential benefits and risks of reaching out online.
“I kind of made it up as I went along,” says Fraser, former chair of the CBA’s National Privacy and Access Section, who began blogging almost a decade ago, only a few years after graduating from law school. “Certainly there were no social media policies and certainly not at my firm. My sense was if I did it properly I would manage to stay out of trouble.”
These days, Fraser is one of the most well-known legal bloggers in Canada, and he credits the growth of his privacy, Internet and technology law practice, in part, to his early foray into social media. Aside from his award-winning Canadian Privacy Law Blog, he also tweets under the handle @privacylawyer and he was an early adopter of Facebook, using it as a venue for both business and personal connections.
Fraser, a partner at McInnes Cooper, is an example of how social media can vault young lawyers from relative obscurity to becoming leader in their fields – regardless of the size of their firm or market — by building the personal “Google juice” to get oneself recognized.
Sara Cohen, a fertility and surrogacy lawyer who avidly blogs, tweets, and posts on Facebook, adds that social media can be a significant career builder for both newcomers to the profession and for sole practitioners.
“If you’re trying to make a name for yourself, I think it really levels the playing field in terms of you don’t have to be with a huge firm to have just as loud of a voice,” says Cohen, a sole practitioner in Toronto and author of the award-winning blog Fertility Law Canada.
While Fraser and Cohen credit social media for building relationships, drumming up business, and providing a forum to share information, they also caution that there are risks associated with hanging out in public places online.
They advise against conducting business with clients through Facebook, Twitter, or blogs. When they get queries from existing or potential clients, they quickly move the conversation to more traditional — and less public and safer — means of communication, such as email or the telephone.
“Obviously it is legal advice and I would not be comfortable giving legal advice in 140 characters or less,” says Cohen.
Fraser and Cohen also avoid writing anything about clients on their blogs, and Fraser says it is common practice to do a “conflict search” before posting anything on a current issue to make sure he doesn’t write about or link to anything that could involve clients of other lawyers at his firm.
Fraser adds that he sometimes “goes dark on social media” while travelling on business, so he won’t give away potential confidential information, which can sometimes be revealed to a client’s competitors by location alone.
Fraser and Cohen add there are two other potential pitfalls that are particular to the legal professional — protecting solicitor-client privilege and ensuring that they do not inadvertently enter into a lawyer-client relationship by simply responding to a question from a reader, which could be construed as giving legal advice.
Many lawyers are still making up their own social media ground rules because not all law firms have policies, says Dan Pinnington, vice president of claims prevention at LawPRO, which provides malpractice insurance to members of the Law Society of Upper Canada.
Pinnington, while he advises young lawyers to “go ahead, be social” by partaking in social media, he cautions that not all risks are obvious and that good judgment is a must.
“The number one rule absolutely is be professional all the time, 100 per cent of the time regardless of whether it’s a LinkedIn post, Twitter tweet, or a post that you otherwise you think is private or personal on your Facebook page,” Pinnington says. “You have to assume that anything and everything you post is going to go out there and stay out there for a long time and could become public now or later. You never want to say anything that will embarrass you personally or professionally.” Pinnington has devised a list of pitfalls to avoid, which include:
- Don’t talk about clients or their matters, which he describes as “one of the most basic tenets of the lawyer-client relationship.”
- Don’t talk to clients about their matters. He says it is probably best to avoid using social networking tools to communicate anything about a specific matter you are handling for a client, even if you send direct messages that are not meant to be public.
- Never give legal advice online. “There is a huge difference between providing legal information and giving legal advice,” he says. Avoid any exchange that could be construed as a lawyer-client relationship.
- Avoid conflict of interest, which could happen when somebody with an ulterior motive contacts a lawyer online. Lawyers should confirm the identity of people they deal with and be careful about the information they share.
- Don’t mix your personal and professional lives. One possibility is to have separate Facebook pages for business and personal. Pinnington says lawyers should take the particular social-media tool into account when considering online contacts. A general rule of thumb is to reject Facebook invites from people you don’t know or know by name only. Reject LinkedIn invites from people you don’t know, but feel free to accept those from people you barely know or know in name only. If you are a litigator, be careful about connections with judges and experts, as it wouldn’t look good to your opposing counsel. While Pinnington does not dismiss the idea of being friends with clients on Facebook, he says that it is probably a bad idea in some cases. For instance, family lawyers should avoid becoming intertwined with clients because their personal lives are most often a legal issue as well.
Pinnington notes that using good judgment is an evolving measure that could change in the coming years. “It will be interesting to see as we go forward, when the younger crowd gets into positions of responsibility and authority, will there be a new yardstick for privacy or for accepting what may be out there?”
Janice Tibbetts is a freelance journalist in Ottawa.