online social networking report (feb 2012)

7/29/2019 Online Social Networking Report (Feb 2012)

1/40

The Impact o Online SocialNetworking on the Legal

Proession and Practice

A iitiati f t Lal Pts Ta

Fa 2012


2/40

Material contained in this report may be reely quoted or reprinted,provided credit is given to the International Bar Association

International Bar Association

4th Floor, 10 St Bride Street

London EC4A 4AD, United KingdomTel: +44 (0)20 7842 0090

Fax: +44 (0)20 7842 0091

Website: www.ibanet.org


3/40

The Impact o Online Social Networking on the

Legal Proession and Practice: February 2012

Contents

List o boxes and fgures 5

Introduction 7

About the survey 7

Survey methodology 7

About the authors 11

Next steps and project plan 11

Summary o fndings 12

Findings 12

Overall view o the presence o online social networking in the legal proession 13

Presence o legal actors on online social networking sites 15

Lawyers 15

Judges 16

Jurors 16

Posting o inormation and opinions by legal actors 17

Posting o comments by lawyers 17

Posting o comments by judges 18

Posting o comments by jurors 18

Posting o updates by lawyers, judges, jurors and journalists 18

Endorsement o legal products 20

Lawyer-client relationship 21

Judicial proceedings 21

Evidence in proceedings 21


4/40

4 The ImPAcT oF onLIne SocIAL neTworkIng on The LegAL ProFeSSIon And PrAcTIce: FebruAry 2012

Jury selection 22

Jury instructions 23

Public perception o lawyers and the judiciary 23

Public perception o lawyers 23

Public perception o the judiciary 24

Law students 26

Relationship between law students and proessors 26

Evaluation o candidates or admission to the Bar 26

Inormation sessions/trainings 27

Legal employment 28

Future actions is there a need or adaptation and intervention? 29

Advantages versus disadvantages o online social networking 29

Training course(s) or legal proessionals 30

Adaptation o ethical/proessional codes and standards 30

Intervention o local bar organisations, societies, and councils 31

Intervention o the IBA 32

Conclusions and recommendations 33

Summary o conclusions 33

Recommendations/uture steps 33

Annex 1: List o Survey Questions 35

Annex 2: Geographical regions used in this report 38

Annex 3: Further Reading 38


5/40

The ImPAcT oF onLIne SocIAL neTworkIng on The LegAL ProFeSSIon And PrAcTIce: FebruAry 2012 5

List o boxes and fgures

Boxes

Box 1: List o respondents and corresponding jurisdictions

Box 2: Geographic representation o respondents

Box 3: Distribution o respondents and responses by geographical region

Box 4: Major fndings

Box 5: Major fndings and conclusions

Figures

Figure 1: Do you think that online social networking presents a new set o challenges or the

legal proession?

Figure 2: Do you think it is acceptable or lawyers and judges to have each other as contacts

(riends, ollowers/ollowing, connections, etc) on online social networking sites?

Figure 3: Do you think judges should discontinue being online contacts (riends, ollowers,

connections, etc) with ormer colleagues comprising advocates and legal practitioners

once they become judges?

Figure 4: I your jurisdiction has a jury system, do you think it is acceptable or jurors and the

parties and/or witnesses in a case to have each other as contacts (riends, ollowers,

connections, etc) on online social networking sites?

Figure 5: I your jurisdiction has a jury system, do you think that jurors should be asked to

deactivate their online social networking accounts during proceedings?

Figure 6: Do you think it is acceptable or lawyers to post comments or opinions about judges

beore whom they are appearing, their clients, their cases, and/or opposing counsel on

online social networking sites?

Figure 7: Do you think it is acceptable or judges to post comments or opinions about the

lawyers and parties appearing beore them and/or pending/decided cases on online

social networking sites?

Figure 8: I your jurisdiction has a jury system, do you think it is acceptable or jurors to post

comments or opinions about the judges, lawyers, parties, and/or cases which they are

observing on online social networking sites?

Figure 9: Do you think it is acceptable or lawyers, judges, jurors and/or journalists to postupdates about proceedings (by posting status updates, tweeting, blogging, etc) on

online social networking sites, while a matter is pending beore the courts, strictly or

inormational purposes?

Figure 10: Do you think it is acceptable or judges to state their interests and/or preerences in

legal products (like, an, etc) on online social networking sites?

Figure 11: Do you think that lawyers should advise their clients to close their online social

networking accounts upon ormation o the lawyer-client relationship?

Figure 12: Do you think that lawyers should warn potential clients in advance that any

communication between them over an online social networking site will not in itselestablish a lawyer-client relationship?


6/40


Figure 13: Do you think it is acceptable or lawyers to access and use the inormation ound on

the online social networking profles o the parties in a case, which orms part o the

public domain, as evidence in proceedings?

Figure 14: I your jurisdiction has a jury system, do you think it is acceptable or lawyers to

consider the inormation ound on the online social networking profles o potential

jurors in selecting a jury?

Figure 15: I your jurisdiction has a jury system, in addition to routine instructions, do you thinkthat jurors should receive specifc instructions limiting their online communications and

use o online social networking sites?

Figure 16: In your opinion, does lawyers use o online social networks negatively aect the

publics confdence in the integrity and proessionalism o the legal proession?

Figure 17: In your opinion, does judges use o online social networks negatively aect

the publics confdence in the integrity and impartiality o the judiciary, thereby

undermining judicial independence?

Figure 18: Do you think it is acceptable or law proessors and current and/or prospective law

students to have each other as contacts (riends, ollowers, connections, etc) ononline social networking sites?

Figure 19: Should bar associations, societies and councils consider the inormation ound on

online social networking profles in evaluating candidates or admission to the Bar?

Figure 20: Do you think that law students should be inormed by their law schools as to

the potential risks and disadvantages associated with the use o online social

networking within the legal proession (eg, the inormation on their online social

networking accounts being seen and considered by prospective employers and/or

bar organisations)?

Figure 21: Do you think it is acceptable or legal employers to consider the inormation ound on

online social networking profles in evaluating potential work candidates?

Figure 22: Do you think that the advantages o online social networking outweigh its

disadvantages in the context o the legal proession and practice?

Figure 23: Do you think that lawyers, judges, and law students could beneft rom a training

course discussing guidelines or the use o online social networking within the legal

proession and practice?

Figure 24: Is there a need or bar associations, societies, and councils to construe guidelines

regarding the use o online social networking sites within the legal proession and

practice?

Figure 25: Is there a need or the IBA to work with member bar associations, societies, and

councils to construe guidelines and toolkits regarding the use o online social

networking sites within the legal proession and practice?

Figure 26: Issues stemming rom the use o online social networking within the legal proession

and practice


7/40


About the survey

In March 2011, the International Bar Associations(IBA) Legal Projects Team, based in London,

took up an important global initiative to examinethe presence and role o online social networking

within the legal proession and practice.The initiative was prompted by an

unprecedented worldwide surge in the use oonline social networking. From the crucial roleit played in the Arab Spring, to the dramaticincrease o super-injunctions in the UK, and itsmost recent use in the planning o the Englandriots, online social networking seems to have arecurring presence in the media and in daily lie.Members o the legal proession are not immune

rom the ripples o such a wave. Judges have eltits momentous presence in situations involvingthe inclusion o material ound on online socialnetworking pages as evidence in proceedings,and the misuse o online social networking by

jurors, to name a ew. Private practitioners areconronted with the possibility o interacting with

judges and opposing parties on such sites, whilein-house lawyers are orced to adapt their internalrm policies to these topical issues. Jurors, whileinstructed to solely consider the inormationbeore them, eel the temptation like never beoreto turn to online social networks to conduct theirown research o the case. Law students are alsoenguled by the renzy o such media, both whenlooking up to the current practices o lawyersand judges, and also when going about theirordinary matters as students, or instance whencommunicating with proessors via such networks.In sum, every actor in the legal arena has elt someeect o online social networking on their dailypractice. At present, the corresponding standardo appropriate or acceptable behaviour in suchareas is somewhat contentious and unsettled.

As part o the initiative, a benchmark survey

on the impact o online social networking on thelegal proession and practice was drated and sentto all IBA member bar organisations around the

world. The survey represents a rst attempt toshed light on the above issues on an internationalscale. Another signicant indicator that led tothis initiative was that many other proessionshave also started instituting approved policiesor guidelines or monitoring use and advocatingproessionalism within their respective elds;or example, doctors, architects, civil servants,

journalists and even some sportspersons. The

IBA Legal Projects Team elt that the IBA was bestplaced to undertake a study o this magnitude,as it currently has over 45,000 individual lawyersand over 200 bar associations and law societiesspanning all continents worldwide. In this way, it

can airly be said to be truly representative o theinternational legal proession.

The objectives o the survey are: to consider the impact of online social

networking on the legal proession and practice; to analyse whether there is a need for bar

associations, societies and councils to cometogether to address this global issue and developguidelines regarding the use o online socialnetworking within the legal proession andpractice; and

toascertainwhetherthereisaneedfortheIBAto work with member bar associations, societies,councils and law schools to devise guidelinesand toolkits regarding the use o online socialnetworking within the legal proession and

practice. A list o the survey questions is includedin Annex 1.

The results o this survey are being launched orthe very rst time in this comprehensive reportand the responses are detailed orthwith. Thepurpose o the present report is to oster a globaldiscussion among bar associations on these topicaland unsettled issues, in the hope o stimulating anacademic dialogue and putting in place practicalguidelines and parameters. This will also set theground or a global initiative in the orm o asocial media project plan that will be launched at

the Biennial IBA Latin American Regional ForumConerence in Bogota, Colombia in March 2012.

Survey methodology

The survey was designed by the IBA LegalProjects Team and then oered or critique to anumber o key individuals in both the legal andtechnological elds.

The sole ocus o the survey is bar organisations,given their key involvement and prime positioningat the oreront o changes occurring in both thelegal proession and the legal practice. Since theyregularly interact with all o the main targeted legalactors, namely lawyers, judges and law students, itseemed only appropriate to seek their views.

The survey assessed bar associations views on anumber o important issues, including: The interactions between lawyers, judges and

jurors on online social networks; Thepostingofcommentsoropinionsononline

social networks by lawyers, judges, jurors andjournalists about one another or the cases inwhich they are involved;

The effect, if any, of online communicationsbetween a lawyer and a potential or existingclient on the overall notion o the lawyer-clientrelationship;

Introduction


8/40


Jurisdiction Bar Association/Law Society

Aghanistan Aghan Independent Bar Association

Argentina Colegio de Abogados de la Ciudad de Buenos Aires

Austral ia Austral ian Bar Association, Law Society o New South Wales, South Austral ian Bar Association

Azerbaijan Azerbaijan Lawyers Conederation

Bahamas Bahamas Bar AssociationBrazil Ordem dos Advogados do Brasil

Cayman Islands Cayman Islands Law Society

Chile Colegio de Abogados de Chile

Czech Republic Czech Bar Association

Denmark Association o Danish Law Firms

East Arica* East Arica Law Society

England and Wales Bar Council o England & Wales, Law Society o England and Wales, Young Barristers Committee (o the

Bar Council o England and Wales)

Estonia Estonian Bar Association

Ethiopia Ethiopian Bar Association

Europe** European Young Bar Association

France Ordre des avocats de Paris

Germany German Bar

Ghana Ghana Bar Association

Guyana Guyana Bar Association

Hong Kong Hong Kong Bar Association, Law Society o Hong Kong

Hungary Budapest Bar Association, Hungarian Bar Association

India Bar Council o India

Indonesia Indonesian Advocates Association (PERADI)

Iraq Kurdistan Lawyers Association

Ireland Bar Council o Ireland, Law Society o Ireland

Israel Israel Bar Association

Japan Japan Bar Associat ion, Japan Federation o Bar Associat ions, Tokyo Bar Association

Latvia Latvian Council o Sworn Advocates

Luxembourg Ordre des avocats du barreau de Luxembourg

Nepal Nepal Bar Association

Netherlands Amsterdam Bar Association

New Zealand New Zealand Law Society

Panama Colegio Nacional de Abogados de Panam

Peru Ilustre Colegio de Abogados de Lima

Poland National Chamber o Legal Advisers o Poland

Scotland Law Society o Scotland

South Arica Law Society o South Arica

South Korea Korean Bar Association

Spain Consejo General de la Abogaca Espaola, Ilustre Colegio de Abogados de Barcelona, Ilustre Colegio de

Abogados de Mlaga, Ilustre Colegio de Abogados de Valencia

Sweden Swedish Bar Association

Tanzania Tanganyika Law Society

Thailand Lawyers Council o Thailand

Turkey Istanbul Bar Association

United States o

America

National Conerence o Women's Bar Associations, State Bar o Michigan - International Law Section

Uruguay Colegio de Abogados del Uruguay

Zambia Law Association o Zambia

Zimbabwe Law Society o Zimbabwe

box 1 LIST oF reSPondenTS And correSPondIng jurISdIcTIonS

* East Arica represents the geographical area o Eastern Arica comprising Burundi, Kenya, Rwanda, Tanzania and Uganda.** Europe represents the geographical area o Europe.


9/40


KEY

Location of bar associations

Number of respondents per region

15

610

1115

15+

box 2 geogrAPhIc rePreSenTATIon oF reSPondenTS

Geographical Region Number of Respondents Bar Organisation / Law Society

Arica 7 East Arica Law Society, Ethiopian Bar Association, Ghana Bar

Association, Law Society o South Arica, Tanganyika Law Society, Law

Association o Zambia, Law Society o Zimbabwe

Asia 11 Azerbaijan Lawyers Conederation, Hong Kong Bar Association, LawSociety o Hong Kong, Bar Council o India, Indonesian Advocates

Association (PERADI), Japan Bar Association, Japan Federation o Bar

Associations, Tokyo Bar Association, Nepal Bar Association, Korean Bar

Association, Lawyers Council o Thailand

Australasia 4 Australian Bar Association, Law Society o New South Wales, South

Australian Bar Association, New Zealand Law Society

Europe 24 Czech Bar Association, Association o Danish Law Firms, Estonian Bar

Association, European Young Bar Association, Ordre des avocats de

Paris, German Bar, Budapest Bar Association, Hungarian Bar Association,

Bar Council o Ireland, Law Society o Ireland, Latvian Council o Sworn

Advocates, Ordre des avocats du barreau de Luxembourg, Amsterdam

Bar Association, National Chamber o Legal Advisers o Poland, Consejo

General de la Abogaca Espaola, Ilustre Colegio de Abogados deBarcelona, Ilustre Colegio de Abogados de Mlaga, Ilustre Colegio de

Abogados de Valencia, Swedish Bar Association, Istanbul Bar Association,

Bar Council o England & Wales, Law Society o England and Wales, Law

Society o Scotland, Young Barristers Committee (o the Bar Council o

England and Wales)

Central and South America

(including the Caribbean)

9 Colegio de Abogados de la Ciudad de Buenos Aires, Bahamas Bar

Association, Ordem dos Advogados do Brasil, Cayman Islands Law

Society, Colegio de Abogados de Chile, Colegio Nacional de Abogados

de Panam, Ilustre Colegio de Abogados de Lima, Colegio de

Abogados del Uruguay, Guyana Bar Association

Middle East 3 Aghan Independent Bar Association, Kurdistan Lawyers Association,

Israel Bar Association

North America 2 National Conerence o Women's Bar Associations, State Bar oMichigan - International Law Section

box 3 dISTrIbuTIon oF reSPondenTS And reSPonSeS by geogrAPhIcAL regIon


10/40


programme or by email, during the period oMay to August 2011. In addition to respondingto the questions in a yes or no manner,

respondents were invited to add comments orprovide inormation about the current practice intheir own jurisdiction. Respondents representedbar associations rom distinct legal systems andpossessing quite dierent scopes: some respondentbar associations are voluntary while others arecompulsory, some are regional associations whileothers are country-specic, etc. All commentsprovided by the respondent bar associations arereproduced in this report; the comments providedherein refect the entirety o the commentsprovided by the respondents.

Care must be taken when analysing the results,given that the sample of respondents is not statisticallyrepresentative of all bar organisations around theworld, but strictly IBA member ones. In total, 60 IBAmember bar associations rom 47 legal jurisdictionsparticipated in the survey;1 a list o the countriesin each geographical region used in this report isgiven in Annex 2.

While this survey is by no means exhaustive, itattempts to address key issues aecting the legalproessions use o online social networking. Itshould be noted that many other interesting legalquestions exist (eg, privacy issues) however this

survey does not attempt to cover such topics, butinstead ocuses solely on the specic questions itaddresses.

A signicant number o jurisdictions declinedto respond to the survey or concern o ormallydening a policy on online social networking.

As well, others reused because online socialnetworking had little reach or presence in their

jurisdiction. These are important considerationswhich must be borne in mind when analysing thesurvey results.

1 O the 60 bar organisations who started the survey, not all othem completed it in ull. In the analysis that ollows, we use themaximum number o responses available or each question.

Theconsiderationofinformationfoundontheonline social networking proles o the partiesin a case, which orms part o the public domain,

as evidence in proceedings; Theconsiderationbylawyersoftheinformation

ound on the online social networking proles opotential jurors, which orms part o the publicdomain, in selecting a jury;

The adequateness of routine jury instructionsversus the need or specic instructions limitingtheir online communications and use o onlinesocial networking;

Thepublicperceptionoflawyersandjudgesandwhether such is negatively aected by their useo online social networking;

Therelationshipbetweenlawstudentsandtheirproessors and whether such is compromised bytheir riending on online social networks;

The consideration by legal employers of theinormation ound on online social networkingpages in evaluating uture candidates;

The advantages and disadvantages of onlinesocial networking which side outweighs theother?

The potential need for a training course forlawyers, judges, and law students on the ethicaland proessional implications o online socialnetworking; and

Thepotential needforlocal barorganisations,societies, and councils, or, alternatively, or theIBA, to intervene in the area and construe somesort o guidelines or toolkits.

While originally drated in English, the survey wasthen translated into Spanish and French, in orderto allow or an increased comprehension andparticipation by non-English speaking jurisdictions.

All three versions were available online.Survey respondents were invited to complete

the questionnaire either through the online survey

box 3 (conTInued)

Number of responses Jurisdictions

1 Aghanistan, Argentina, Azerbaijan, Bahamas, Brazil, Cayman Islands, Chile, Czech Republic,

Denmark, East Arica* Estonia, Ethiopia, Europe**, France, Germany, Ghana, Guyana, India,

Indonesia, Iraq, Israel, Latvia, Luxembourg, Nepal, Netherlands, New Zealand, Panama, Peru,

Poland, Scotland, South Arica, South Korea, Sweden, Tanzania, Thailand, Turkey, Uruguay, Zambia,

Zimbabwe

2 Hong Kong, Hungary, Ireland, United States o America

3 Australia, Japan, England and Wales

4 Spain

* East Arica represents the geographical area o Eastern Arica comprising Burundi, Kenya, Rwanda, Tanzania and Uganda.** Europe represents the geographical area o Europe.


11/40


The report has been discussed with a group o IBAexperts representing dierent constituents andcommittees within the organisation which includesthe Bar Issues Commission (BIC), the InternationalBar Associations Human Rights Institute (IBAHRI)Council, the Latin American Regional Forum, theNorth American Regional Forum, the Media LawCommittee and the Technology Law Committee.

About the authors

Both the survey and this report were prepared byAnurag Bana and Diana Nardelli o the IBA LegalProjects Team. The ndings, interpretations andconclusions expressed do not necessarily representthe views o the IBA or its members. The IBA doesnot guarantee the accuracy o the data included in

this publication and accepts no responsibility orany consequences o their use.

In order to urther examine the presence oonline social networking in the legal proession,an IBA Advisory Group on Online Social Networks(Advisory Group) comprised o proessionalsrom dierent areas o expertise will be set upby the Legal Projects Team. Ideally, the AdvisoryGroup will be composed o at least one individualrom each o the ollowing: a media law expert;a proessional ethics and responsibility expert; apresent or retired trial judge; a senior ocer o abar organisation; and a dean or senior-level stamember o a law school. By providing or individualsoriginating rom diverse proessions and elds

who are linked together by the use o online socialnetworking, the Advisory Group will be able tooster an exchange o ideas and comments derivedrom dierent angles and experiences.

Similarly, the nationalities o the memberso the Advisory Group would be varied andrepresentative o the dierent world regions inorder to truly advance an international discussionand allow or guidelines that are useul to memberbar associations worldwide.

Next steps and project plan

As the subject is both contemporary andpressing, the Advisory Group would be ormed anda rst meeting convened, at the very latest, by thebeginning o 2012.

While the Advisory Group is encouraged tosuggest and advance issues it deems relevant, theimportant issues which stem rom the use o onlinesocial networking within the legal proessionand practice will be approached by a systemicmechanism o a project plan. The project plan willbe launched at the Biennial IBA Latin AmericanRegional Forum Conerence taking place inBogota, Colombia rom 1416 March 2012.


12/40


The survey addresses the impact o online socialnetworking on six specic groups o legal actors:lawyers; judges; jurors; journalists; law students andproessors; and legal employers.

Beore analysing the results, it is useul toamiliarise onesel with the general terminologyused on online social networking sites. Despitethe act that each social networking site comprisesa distinctive terminology o its own, they areall generally premised on each user having

a personal page on which that user can postinormation which may include, but is not limitedto, the ollowing: a personal and/or proessional

prole, interests and hobbies, academic history,photos, videos and micro-blogs. Users canthen add other users as contacts (ie, riends,ollowers, connections, etc), the main benetbeing increased access to inormation about oneother. Users can also interact with each other bysending public and private messages or writingdirectly on their own personal pages or those oother uses (posting status updates, tweeting,blogging, etc). As well, users can display their

interest, approval or high regard or a particularproduct by liking it or becoming a an. Userscan oten choose between dierent privacy and

Summary o fndings

Findings

box 4 mAjor FIndIngS

Over90percentofrespondentsfoundthatonlinesocialnetworkingpresentsanewsetofchallengesforthelegalprofession.

Almost70percentofrespondentsfeltthatitisacceptableforlawyersandjudgestohaveeachotherascontactsononline

social networks.

Over90percentofrespondentsconsidereditunacceptableforlawyersandjudgestopostcommentsoropinionsaboutfellow

lawyers, judges, parties, or cases in progress on online social networks.

Thevastmajorityofrespondentsfromjurisdictionscomprisingajurysystemfounditunacceptableforjurorstopostcomments

or opinions about the judges, lawyers, parties, and/or cases which they are observing on online social networking sites.

Whileamajorityofrespondentsfounditunacceptableforlawyers,judges,andjurorstopostupdatesaboutproceedings(by

posting status updates, tweeting, blogging, etc) on online social networks while a matter is pending beore the courts

strictly or inormational purposes, the majority deemed the conduct acceptable or journalists.

Over85percentofrespondentsdeemeditacceptableforlawyerstoaccessandusetheinformationfoundontheonlinesocial

networking profles o the parties in a case, which orms part o the public domain, as evidence in proceedings.

Nearly95percentofrespondentsfromjurisdictionscontainingajurysystemthoughtthat,inadditiontoroutineinstructions,

jurors should receive specifc instructions limiting their online communications and use o online social networking sites.

Only15percentofrespondentsfeltthatlawyersuseofonlinesocialnetworksnegativelyaffectsthepublicscondenceinthe

integrity and proessionalism o the legal proession, while almost 40 per cent o respondents elt that judges use o online

social networks negatively aects the publics confdence in the integrity and impartiality o the judiciary, thereby undermining

judicial independence.

85percentofrespondentsthoughtthatlawstudentsshouldbeinformedbytheirlawschoolsastothepotentialrisksand

disadvantages associated with the use o online social networking within the legal proession.

Over75percentofrespondentsconsideredtheadvantagesofonlinesocialnetworkingtooutweighitsdisadvantages.

95percentofrespondentsthoughtthatlawyers,judges,andlawstudentscouldbenetfromatrainingcoursediscussing

guidelines or the use o online social networking within the legal proession and practice.

80percentofrespondentsstatedthatthereisaneedforethical/professionalcodesandstandardstobeadaptedtoonline

social interactions aecting the legal proession and practice, as they cannot be adequately applied in their current orm.

Over90percentofrespondentsstatedthatthereisaneedforbarassociations,societies,andcouncils,or,alternatively,forthe

IBA to construe guidelines regarding the use o online social networking sites within the legal proession and practice.


13/40


security settings, thereby allowing or a greater orlesser exposure to other users.

Where the term proceedings is used throughoutthe survey questions, it reers to all the dierentsteps in a judicial or administrative proceeding.

Overall view o the presence o online

social networking in the legal proession

Survey respondents were asked whether onlinesocial networking presents a new set o challengesor the legal proession. Approximately 92 per cento respondents responded in the armative.Figure1 represents the armative responses receivedrom each world region.

This introductory question prompted a numbero interesting comments rom various jurisdictions.

The Law Society o England and Wales outlinesthe advantages o online social networking in the

legal proession beore going on to remark thatsolicitors conduct through such media is subject toproessional scrutiny:

Online social networking (OSN) provides realopportunities or the legal proession and itis important that it keeps up to date with theopportunities social media presents. Thereis the opportunity or direct and immediateeedback rom clients who have used legalservices, or conversation and interactionbetween practices and their clients. There arecommercial benets arising rom the ability

to communicate products and materials, rommarketing and advertising and rom a greateraccess to legal inormation and resources. There

is a much greater opportunity or proessionalnetworking, including the ability or theproession to break down geographical barriers.

Although the conduct o the proession inrelation to OSN should be no dierent to howthey conduct themselves both proessionallyand in social situations (depending on whetherOSN is being used proessionally or socially),

the act that their conduct on OSN sites ismonitored and recorded leaves them open togreater scrutiny. []The nature o OSN, including the abilityor status updates and posting o opinions,presents challenges to several o the coreduties o solicitors, as currently outlined inthe 2007 [Solicitors] Code [o Conduct 2007](and rom 6 October 2011 the SRA Handbookand Code o Conduct 2011). Solicitors haveobligations to clients, to the court and to thirdparties with whom they have dealings on their

clients behal and this is refected in the coreduty, You must uphold the rule o law andthe proper administration o justice. Boththe core duties o integrity You must act withintegrity, and independence You must notallow your independence to be compromisedcould be aected by the solicitors using OSNsites. Also public condence, You must notbehave in a way that is likely to diminish thetrust the public places in you or the legalproession, may be compromised by the useo OSN by the proession. However, i stepsare taken to mitigate the risks these challengespresent, there are real advantages to the legalproession, as noted above.

FIgure 1: do you ThInk ThAT onLIne SocIAL neTworkIng PreSenTS A new SeT oF chALLengeS For

The LegAL ProFeSSIon?


14/40


The East Arica Law Society explained thereasoning behind why online social networkingbrings about new challenges:

This is because the law is primarily a refectiono the social values o any society, and socialnetworking also brings along with it aspectso communication, sharing inormation, etc.

which the legal proession must understand and

position itsel to address or take advantage o.Likewise, the National Chamber o Legal Adviserso Poland elt that online social networking doesin act create new challenges, because it createsnew opportunities or legal content deliveryand it creates new opportunities or activitiesincompatible with the legal ethics.

As outlined by the New Zealand Law Society,some o the potential challenges brought aboutby online social networking include privacy andethical issues. The Young Barristers Committeecomments that such new challenges may include

the immediacy with which matters can be reportedor commented upon.

Recognising that new challenges do arise, theSwedish Bar Association equated online socialnetworking with ofine social networking, by statingthat, in some respects social networking is to be seenas membership in any other social organisation, interalia, in terms o conficts o interest, etc.

The Guyana Bar Association adopted the viewthat there are not new challenges as such. Butrather considers that [s]ocial networking presentsa new set o issues or the legal proession.

Despite the precise terminology employed,in the view o the Panama Bar Association, [t]hechallenges are surmountable, as proper discretion[is] required when applying current Ethics rules.

On a slightly dierent note, the Cayman IslandsLaw Society elt that the issues raised by onlinesocial networking are not novel as such:

Social networking is simply another orm ocommunication. We do not think it raisesparticularly novel issues, but there are challengesas to how the (generally well established) rulesregarding communication between lawyers,

judges and parties to proceedings should

be applied to social networking. The mereexistence o a social network connection is onlyan indication o a personal relationship whichmay exist anyway and without impropriety. It isthe latter which is important, and the existingrules (in most jurisdictions at least) amply coverhow personal relationships between Judgesand lawyers should be conducted, how thoserelationships may impact whether a Judgeshould not hear a matter, etc.

On a similar note, the Law Society o Scotlandstated the ollowing:

Strictly speaking the challenges are not new andkey issues such as preserving condentiality andnot prejudicing or interering with the judicialprocess remain the same as does complying

with proessional codes o conduct whilst using

such sites. However, the scale o the use o socialnetworking and rapid global disseminationo inormation highlight that it is importantthat the content posted on and the use o suchsites are considered in areas such as adherence

with court orders eg, injunctions preventingaccess/contact or the disclosure o condentialinormation or the existence o the order itsel.

Absent a new overarching legal code therewill also be increasingly complex jurisdictionrelated considerations where inormation isrelayed to or stored on social networking sitesacross the world, such as the recent Twittercases dealing with breaching the terms o superinjunctions have highlighted.Social networking presents both positiveopportunities and challenges or the legalproession. The integrity and proessionalismo the legal proession must be retained whichrequires careul use (even on a personal basis)

o such sites. Although many individuals orexample will use Twitter and state that these viewsare my own and not that o my rm/company/business this may still tarnish the reputation otheir employer i particularly sensitive topics arediscussed and opinions/thoughts are voiced bythe individual in question.However, social networking also presents a newplatorm or sharing your legal knowledge,expertise and promoting your rm/brand to a

wider audience. This will lead to the possibilityo new contacts, reerrals which may lead on tonew business.

The Ilustre Colegio de Abogados de Barcelonaopined that social networks are very importantor the legal proession, like or all proessions.The networks with the more proessional proles,or example, LinkedIn or Twitter, can open newbusiness opportunities or lawyers and other legalpractitioners. They are also an ideal platormto increase contacts and exchange knowledge.Knowing how to manage them well is a challengerom the point o view o organisations.

The Colegio de Abogados de la Ciudad deBuenos Aires takes a modern stance and states that

the legal proession cannot be unconnected tothe reality o intensive use by young people o thisservice that establishes a new paradigm in mediumso communication.

In line with such view, the Azerbaijan LawyerConederation highlights that it makes its very ownproessional use o social networks by creating the

Azerbaijani Lawyers group on Facebook to uniteAzerbaijani lawyers.

Despite the many acets o globalisation, thesocial networking renzy has not been able to reachall jurisdictions. For example, as commented by the

Tanganyika Law Society:Most advocates communicate with mobile orcellular phones. Although the majority o theTLS membership have e-mail addresses, only apercentage o that majority use it regularly.


15/40


As shown, many jurisdictions oeredcomments on this rst introductory question.The responses and comments provided are in line

with the view that online social networking doesin act create a new set o challenges or issues orthe legal proession, which need to be addressed

while all the while maintaining high standards oethics and proessionalism.

Presence o legal actors on online social

networking sites

The presence o legal actors on onlinesocial networking sites is increasingly morepronounced. While such presence may at irstglance seem innocuous, a number o associatedrisks and compromising situations can, andoten do, in act arise, particularly with respectto the online interactions and communications

between legal proessionals.

Lawyers

The survey asked participants a series o questionsrelating to the appropriateness o a lawyers contactson an online social networking site.

FIgure 2: do you ThInk IT IS AccePTAbLe For

LAwyerS And judgeS To hAve eAch oTher AS

conTAcTS (FrIendS, FoLLowerS/FoLLowIng,

connecTIonS, eTc) on onLIne SocIAL

neTworkIng SITeS?

First, respondents were asked whether they considerit acceptable or lawyers and judges to have eachother as contacts on online social networking sites.

Almost 70 per cent o respondents elt that such a

connection is appropriate. O these respondents,roughly hal considered it acceptable or lawyersand judges beore whom they are appearing to haveeach other as contacts on online social networkingsites during the proceedings.

An interesting perspective was put orward bythe Law Society o Scotland:

An outright ban o all such contact automaticallyassumes that skilled proessionals such aslawyers and judges would not strictly adhere toproessional codes o conduct and practically aban would be dicult to monitor and enorce(or example i the link itsel and/or messages

sent between the parties are private). It is thecontent o the discussion that is important andnot the existence o the contact. Also merelyollowing someone may be less controversialthan connections/riends. Whilst it is importantthat justice is seen to be done there should beno real dierence with social networking sitesthan with on one view more private contact thatcould be made by e-mail or phone.

A user should be sensible enough to controlwho can and cannot view their online socialnetworking prole. Privacy settings should

be added where necessary and may be moreuseul depending on the nature o any ongoingtransactions/court hearings. The reality is thatsocial networking sites are not going to go awayand knee jerk blanket bans are unlikely to behelpul or appropriate.

Respondents were also asked whether it isacceptable or lawyers and unrepresented opposingparties to have each other as contacts on onlinesocial networking sites. The responses were dividedequally between yes and no.

The position taken by the Law Society oScotland is as ollows:

The reality is very likely that a lawyer wouldnot have or keep a known contact with anunrepresented party and should not bediscussing the details o the specic case.Proessionals should be trusted to adhere toproessional codes o conduct rather thanbanning use o social networking sites.There are also practical diculties with analternative position. Many people usingsocial media use pseudonyms or variations onames used in real lie, making identicationharder. There is also a dierence here

between ollowers (which in some systemscan be removed unless reported undernuisance / unacceptable use procedures)and connections and riends which usuallyrequire actual acceptance. For example, i this

was deemed unacceptable it would essentiallyprohibit a lawyer having a public Twitteraccount, as they can be ollowed withoutrequirement o their consent.

Lastly, respondents were asked whether lawyersshould deactivate their online social networkingaccounts during proceedings. 78 per cent o

respondents responded in the negative.Some respondents elt that it was the contentrather than the medium which was importantor social networking sites. It was essential orlawyers to be proessional at all times on virtual


16/40


orums and also avoid making any controversialstatements or comments about proceedings that

were sub judicein order to avoid any intererencewith the due process.

These results demonstrate that there is nogeneral objection on the part o bar associationsto lawyers participating in online social networkingsites, and, to a lesser extent, being riends with

judges. However, it is arguable whether or notlawyers should be riends with unrepresentedopposing parties.

Judges

FIgure 3: do you ThInk judgeS ShouLd

dISconTInue beIng onLIne conTAcTS (FrIendS,

FoLLowerS, connecTIonS, eTc) wITh Former

coLLeAgueS comPrISIng AdvocATeS And LegAL

PrAcTITIonerS once They become judgeS?

The survey asked respondents whether judgesshould discontinue being online contacts withormer colleagues comprising advocates and legalpractitioners once they become judges. 60 per cento respondents replied in the negative.

In addition, respondents were asked whetherthey think judges should close their online socialnetworking accounts once they become judges. Justover 70 per cent o respondents thought that there

was no need or judges to do so.Further, out o these respondents, just over

80 per cent elt that there was not even a needor judges to deactivate their online socialnetworking accounts during the duration o theproceedings themselves.

It was observed that judges should beencouraged to consider their social media use to

avoid any target allegations o miscarriage o justiceor lack o impartiality. However such measuresshould be voluntary rather than mandatory.Reviewing use o social media should be part o

a general new consideration o relationships onbecoming a judge (such as those through golclubs, alumni associations, religious institutionsand charities) rather than being seen as a new andstand-alone issue.

Thereore, as can be seen rom these responses,it appears acceptable or judges to both possessan online social networking account and be

connected to colleagues. While there is no clearobjection to such presence, possible concern canperhaps lie in the specic content and tenor o anycommunications held across such networks.

Jurors

The survey asked respondents whose jurisdictionhad a jury system i they consider it acceptable or

jurors and the parties and/or witnesses in a caseto have each other as contacts on online social

networking sites. Approximately 80 per cent orespondents rom jurisdictions comprising a jurysystem elt that such conduct was not acceptable.

FIgure 4: IF your jurISdIcTIon hAS A jury

SySTem, do you ThInk IT IS AccePTAbLe For

jurorS And The PArTIeS And/or wITneSSeS

In A cASe To hAve eAch oTher AS conTAcTS

(FrIendS, FoLLowerS, connecTIonS, eTc) on

onLIne SocIAL neTworkIng SITeS?

There were suggestions rom some bar organisationsthat it would be useul or the jury to have specic,clear guidance on online social networking issuedby the judge at the start o a case.

Since it is common practice to request jurors tocease all communications about the case at handduring the proceedings, with the exception ocommunications with ellow jurors, it is a naturalextension o such practice to ponder about onlinecommunications through online social networkingsites. Do communications conducted via such onlinemedia correspond to the standard denition o

communications and, i so, what type o monitoringis needed to ensure that such instructions are obeyed?One possible option would be a blanket ban

on online social networking during the entirety othe proceedings in the case at hand. Respondents


17/40


Posting o inormation and opinions by

legal actors

The most common eature o online social networksis the ability to post comments or opinions on ausers personal page or the page o others. Whilesuch a practice has become commonplace, theposting by lawyers, judges, jurors and journalists

potentially raises ethical or proessional issues.

Posting o comments by lawyers


LAwyerS To PoST commenTS or oPInIonS

AbouT judgeS beFore whom They Are

APPeArIng, TheIr cLIenTS, TheIr cASeS, And/

or oPPoSIng counSeL on onLIne SocIAL

neTworkIng SITeS?

Respondents were asked whether they considerit acceptable or lawyers to post comments oropinions about judges beore whom they areappearing, their clients, their cases and/oropposing counsel on online social networkingsites. Nearly 90 per cent o respondents ound thatsuch conduct was unacceptable.

It would amount to a clear breach o proessionalcodes o conduct and also bring the legal proessioninto disrepute, particularly during live proceedings.

Additionally, there were issues o preservingcondentiality and not interering with the conducto proceedings that were highlighted by some barorganisations. It was also noted that or some younglawyers the dierence does not appear to be clearas to the type o comments which may be madein private to a proessional colleague and the typethat are appropriate on more public social mediaplatorms, even i in the orm o a discussion betweentwo colleagues. The standard or social media should

be the same as or a comment one would be willingto make in print or public, and better training andguidance during the qualication route or youngsolicitors may be o assistance.

were asked i they thought jurors should be askedto deactivate their online social networking accountsduring proceedings. Again, hal o respondentsreplied that this question was not applicable to thembecause their jurisdiction did not contain a jurysystem. The remaining responses were split in two,

with one hal responding that such conduct was inact acceptable and the rest nding the contrary.


SySTem, do you ThInk ThAT jurorS ShouLd

be ASked To deAcTIvATe TheIr onLIne SocIAL

neTworkIng AccounTS durIng ProceedIngS?

On this note, the Law Society o Scotland opined thatjurors are not asked to separate themselves rom theircommunity at present and that an outright ban may beeasier to monitor but is not a proportionate response.

In addition, it provided the ollowing observations:It should be noted that jurors are no longeraccommodated in a hotel while the case isongoing. There is perhaps a greater risk ointimidation as a result o social networking sites.People with malicious intent might nd it easierto identiy and communicate with a juror thanin the past. There should however be very clearguidance in place regarding social networking useduring their involvement in the case and jurors,etc advised that the public contents o their socialnetworking sites may be monitored. It should be

recommended that they deactivate, howeverthis should not be mandatory. The police andcourts will need to be more amiliar with the risks.On a note o practicality, it is considered that therequirement to deactivate social media during,possibly lengthy, trials perhaps separating amiliesrom events (birth o a grandchild) [happening] inother countries could be a signicant disincentiveto willing compliance with jury duty, and mayrequire disproportionate resource to police.

To sum up, the results indicate that bars associationsin jurisdictions with a jury system generally considerit unacceptable or jurors and the parties and/or

witnesses in a case to have each other as contacts ononline social networking sites, while it is arguable

whether jurors should be asked to deactivate theironline social networking accounts during proceedings.


18/40



judgeS To PoST commenTS or oPInIonS AbouT

The LAwyerS And PArTIeS APPeArIng beFore

Them And/or PendIng/decIded cASeS on


Posting o comments by judges

Respondents were also asked whether they think it isacceptable or judges to post comments or opinionsabout the lawyers and parties appearing beorethem and/or pending/decided cases on onlinesocial networking sites. 95 per cent o respondentsound that such conduct was unacceptable.

As can be noted, respondents had a slightlymore pronounced objection to the posting o

comments by judges than by lawyers.

Posting o comments by jurors

The survey asked respondents i they think itis acceptable or jurors to post comments oropinions about the judges, lawyers, parties and/or cases which they are observing on online socialnetworking sites. While around hal o respondentsreplied that this question was not applicable tothem because their jurisdiction did not contain a

jury system, the other hal ound that such conductwas not acceptable.

The Law Society o Scotland stated:Although they are generally not subject to thesame proessional standards as a lawyer, they stillmust strictly abide by the obligations o the juryand not discuss their involvement in the case orace contempt charges. It is important jurorsare encouraged to understand that such actionscould lead to miscarriages o justice and appeals.

In a recent landmark case (Attorney General v Fraill& Anor [2011] EWCA Crim 157), one jurors actions

went on to mark a historic event or the legal

community as perhaps the rst ever instance o ajuror prosecuted or contempt o court or usingFacebook. The High Court o England and Walesound the juror guilty o contempt o court, and

sentenced her to eight months imprisonment.Lord Judge stated that the jurors actions weredirectly contrary to her oath as a juror andconstituted fagrant breaches o the orders made bythe judge or the proper conduct o the trial. Thissets a clear precedent and emits a strong messagethat, in order not to undermine the guaranteeso a air trial, and in urtherance o the proper

administration o justice, jurors must strictly keepto their duties as impartial and unbiased decision-makers and restrain rom independent research orcommunications.



jurorS To PoST commenTS or oPInIonS AbouT

The judgeS, LAwyerS, PArTIeS, And/or cASeS

whIch They Are obServIng on onLIne SocIAL

neTworkIng SITeS?

Posting o updates by lawyers, judges, jurors

and journalists

In addition to the general posting o commentsand opinions, the posting o updates about theproceedings themselves, while a matter is pendingbeore the courts, raises added concerns.

On this note, the survey asked respondentsi they think it is acceptable or lawyers, judges,

jurors and/or journalists to post updates about

proceedings on online social networking sites,while a matter is pending beore the courts, strictlyor inormational purposes.

With regard to lawyers, nearly 70 per cent orespondents elt that such conduct was unacceptable.

With regard to judges, the respondents went evenurther, with 90 per cent deeming such conductunacceptable. Similarly, close to 95 per cent orespondents elt that such conduct was unacceptableor jurors. The responses, however, were verydierent when the question concerned journalists.80 per cent o respondents elt that such conduct

was acceptable or journalists.

Thereore, on the whole, while mostrespondents deemed the posting o updates aboutproceedings an unacceptable practice or lawyers,

judges and jurors, respondents generally elt that


19/40


FIgure 9: do you ThInk IT IS AccePTAbLe For LAwyerS, judgeS, jurorS And/or journALISTS To

PoST uPdATeS AbouT ProceedIngS (by PoSTIng STATuS uPdATeS, TweeTIng, bLoggIng, eTc) on

onLIne SocIAL neTworkIng SITeS, whILe A mATTer IS PendIng beFore The courTS, STrIcTLy For

InFormATIonAL PurPoSeS?

journalists were privileged to do so. This thinkingis perhaps attributed to the act that, in comparisonto lawyers, judges and jurors, journalists do notparticipate rst-hand in proceedings but, rather,ollow the proceedings strictly or purposes otransmitting the inormation on to the publicand making such inormation known to them. Incontrast, lawyers, judges and jurors are directlyinvolved in the case at hand, and thereore mustappear impartial and uphold the integrity o the

judicial process.The reasoning behind such a distinction

was ingeniously explained by the Ilustre Colegiode Abogados de Barcelona. In their opinion,lawyers, judges and jurors need to respectat all times the right to a deence and thepresumption o innocence while a proceeding

is ongoing. Anything that can aect such rights,or distort them, is not acceptable. With respectto journalists, it is important to avoid paralleltrials through the media or social networks.

While inormation proessionals have the rightto inorm, such a right is subject to certain limitsnot being exceeded.

Both the Tanganyika Law Society and theGhana Bar Association stressed the importance oupholding the actual and perceived impartialityo judges, parties and jurors, and preserving thesanctity o the judicial process, respectively.

In regards to lawyers specically, the YoungBarristers Committee eels that cases shouldprobably only be commented upon by lawyerspost conclusion and only i it is possible to doso without identiying the case/lawyer/judge/

client in question unless that inormationis already in the public domain in which caseany comment should be subject to any code oconduct guidelines dealing with commenting tothe media. However, in respect to jurors, it eelsthat they should be permitted to comment eitherduring or ater cases.

Similarly, the Swedish Bar Association oundthat the social network itsel does not endangerthe independence or other proessional duties othe lawyer/judge etc but then goes on to add thata lawyer or a judge must never discuss or in anyother way use the social network in a way that wouldput [his/her] independence or other proessionalduties in danger.

With regards to the use o online socialnetworking in the courtroom in general, the

Law Society o England and Wales brought upa guideline issued by the Lord Chie Justice oEngland and Wales in December 2010: Interim

practice guidance: The use of live text-based forms ofcommunication (including Twitter) from court for the

purposes of fair and accurate repor ting. In this Interimpractice guidance, live text based communicationis dened as including mobile email, socialmedia (including Twitter) and internet-enabledlaptops. A new set o practice guidance notes

were issued in December 2011 where it is statedthat a representative o the media or a legal

commentator who wishes to use live, text-basedcommunications rom court may do so withoutmaking an application to the court. As stated bythe Law Society with regard to the December 2010interim practice guidance:


20/40


This guidance sets out that the use o live text-based communication is prohibited unless,in the exercise o its discretion, the courtpermits such equipment to be used. Beorethe use o live text-based communication ispermitted, the court must be satised that itsuse does not pose a danger o intererenceto the proper administration o justice in the

individual case. So in certain situations it willbe appropriate or journalists to post updatesabout proceedings or inormation purposes.However, in the case o lawyers, judges and

jurors it would not be acceptable or any othese groups o people to post updates aboutproceedings while a matter is beore thecourts, even or inormation purposes.

As well, the Law Society o Scotland provided theollowing comments:

Lawyers involved in the live proceedings,judges and jurors have vital roles and it

is greatly important that these roles aremaintained and seen to be maintained duringthe course o proceedings. Whilst strictly orinormational purposes should mean thatno condential inormation is disclosed anda status update should not interere with

judicial proceedings, there is a danger thatthose involved in the live proceedings couldcross a line beyond that or be accused ocrossing a line which could impinge upon the

judicial process.However, there should be no issue with anylawyer/judge who is not involved in the givencase to discuss/comment on the proceedingsrom a legal point o view or the practicalimpact o the possible ruling.In terms o journalists there is no issue withthem airly reporting the proceedings providingthat the social networking activity does notprejudice the right to a air trial or aect theadministration o justice. In the Julian Assange(WikiLeaks) case in the UK (December 2010)the media were allowed to tweet duringproceedings providing that the social mediause refected the rules o air and accurate

reporting. This has since been ollowed inScotland during the Tommy Sheridan perjurytrial. Increasingly verdicts are announced onTwitter beore the parties emerge rom thecourt to talk to the press.

In regards to journalists specically, the HongKong Bar Association underlined that their postingon online social networks is in no way dierentrom reporting in newspapers only. In addition,the Bar Council o England & Wales pointed outthat journalists [are] subject to observing generalmedia restrictions.

Interestingly enough, the Colegio deAbogados de la Ciudad de Buenos Aires drew nodistinction between the legal actors mentioned.

According to the Colegio, prudence should alwaysserve as a guide to the use o any means o masscommunication, especially during the course othe proceedings o which they are a part. Similarly,the Indonesian Advocates Association (PERADI)treated all communications in the same manner,irrespective o their source, by deeming them allappropriate provided that such inormation being

posted is not classied or condential.It is also interesting to note the view o the

Colegio de Abogados del Uruguay who groupedlawyers and journalists together and deemed theiruse o online social networking in the above contextacceptable. In their view, the opinions o lawyersand journalists do not compromise the image oropinion o the judiciary, while any opinion o a

judge may be misunderstood or wrong. However,lawyers should omit any type o expression that

would imply undue pressure on opposing parties,colleagues and judges.

Endorsement o legal products

Another eature o online social networking sitesis that users can display their interest, approvalor high regard or a particular product by likingor becoming a an o the product. Products canrange anywhere rom a legal text, to a lm ormusical group.

FIgure 10: do you ThInk IT IS AccePTAbLeFor judgeS To STATe TheIr InTereSTS And/or

PreFerenceS In LegAL ProducTS (LIke, FAn, eTc)

on onLIne SocIAL neTworkIng SITeS?

The survey asked respondents whether it isacceptable or judges to state their interests and/or preerences in legal products on online socialnetworking sites. Almost two thirds o respondents(64 per cent) elt that such conduct was unacceptableor judges.

As highlighted by the Cayman Islands LawSociety, the nature o the product may be o specialrelevance to the question at issue:


21/40


This may depend on the nature o theproduct. A Judges endorsement o legalproducts (especially i those are brandedby or otherwise linked to particular rms)could be problematic, i in the uture thoseproducts come under scrutiny in litigation

which may involve the relevant rms. Theremay be certain products that a judge could

saely endorse, such as series o law reports orresearch websites such as BAILII [British andIrish Legal Inormation Institute].

Further examples were stated by some respondents,like the endorsement o a particular expert witnessservice provided by an individual may not beappropriate whereas liking o general IT systemsmight have some other issues. Care should also betaken around competition law implications.

Lawyer-client relationship

As detrimental evidence can oten be obtainedthrough the online social networking accounts oparties or witnesses in a case, respondents wereasked whether lawyers should advise their clientsto close their online social networking accountsupon ormation o the lawyer-client relationship.Over 80 per cent o respondents elt that this

would be unnecessary.Respondents were also asked whether lawyers

should warn potential clients in advance that anycommunication between them over an onlinesocial networking site will not in itsel establish alawyer-client relationship. Almost 70 per cent orespondents elt that such a practice was desired.

FIgure 11: do you ThInk ThAT LAwyerS

ShouLd AdvISe TheIr cLIenTS To cLoSe TheIr

onLIne SocIAL neTworkIng AccounTS uPon

FormATIon oF The LAwyer-cLIenT reLATIonShIP?

Judicial proceedings

Evidence in proceedings

The survey asked respondents whether they thinkit is acceptable or lawyers to access and use theinormation ound on the online social networkingproles o the parties in a case, which orms parto the public domain, as evidence in proceedings.

Just over 85 per cent o respondents elt that suchpractice was indeed acceptable.

As expressed by the Law Society o England andWales, subject to legal restrictions, the inormationound on OSN proles is in the public domainalready and there seems no reason why it shouldnot be used as evidence in proceedings. Similarly,the Young Barristers Committee agreed that suchpublicly available material is a source o evidence

which may contain disclosable material and shouldbe investigated by investigators/ prosecutors/

police as a matter o course.

FIgure 12: do you ThInk ThAT LAwyerS ShouLd

wArn PoTenTIAL cLIenTS In AdvAnce ThAT

Any communIcATIon beTween Them over An

onLIne SocIAL neTworkIng SITe wILL noT In

ITSeLF eSTAbLISh A LAwyer-cLIenT reLATIonShIP?

While deeming the practice acceptable, somerespondents went on to dierentiate betweeninormation that is part o the public domain andinormation obtained under alse pretences, a keydistinction in this regard.


22/40



LAwyerS To AcceSS And uSe The InFormATIon

Found on The onLIne SocIAL neTworkIng

ProFILeS oF The PArTIeS In A cASe, whIch

FormS PArT oF The PubLIc domAIn, AS

evIdence In ProceedIngS?

I this inormation is part o the public domainthen it is ree to use and it is up to the Court todecide to allow the evidence to be considered ornot and the weight to be given to it (which mayinclude actoring in the inormal context in whichthe communication was made). I the inormationis obtained under alse pretences, or example, ia lawyer pretended to be someone else on a socialnetworking site to gain inormation, then that maymean the evidence is inadmissible.

Many bar organisations adopted the view thatindividuals need to be prudent and conscious o

what inormation they place on their online social

networking pages, as such inormation becomespart o the public domain and is thus air game orlawyers to use as evidence in proceedings. As statedby the Hong Kong Bar Association, such inormationis no dierent rom any publicly available materialssubject always to careul verication. Similarly, theIndonesian Advocates Association (PERADI) eltthat, as part o public domain which is open topublic, the inormation can certainly be used asevidence in proceedings, while the Bar Council oEngland & Wales stated that, i in the public domainno privilege can attach.

Moreover, the Ilustre Colegio de Abogados deBarcelona took the view that the public in generalneeds to be aware o what it places on social networks,and with what visibility. In this sense, it needs to know

what risks exist when it makes certain inormationpublic. From there, the use that lawyers make withthe public inormation they can nd on the socialnetwork will depend on the particular case.

While deeming the practice acceptable, some barassociations have added conditions. For instance, theEstonian Bar Association allowed the practice onlyi it is in accordance with corresponding legislation,

while the Colegio de Abogados del Uruguay stressed

that it is essential that the inormation ound is trulypublic, and not private, or restricted.

In contrast, the Kurdistan Lawyers Associationgood-naturedly inormed that its jurisdiction

will only rely on the personal [evidence] in courtproceedings and wont take inormation o thepublic domain as real proo.

Jury selection

The survey then asked respondents whether it is

acceptable or lawyers to consider the inormationound on the online social networking proles opotential jurors in selecting a jury. More than 80 percent o respondents rom jurisdictions containing a

jury system considered such a practice unacceptable.As postulated by the Ilustre Colegio de

Abogados de Barcelona, while such a practice isnot acceptable, it would be prudent or legal actorsto carry out preventative work to warn those jurors(or potential jurors) o the risks that may arise romthe public parts o their social networking proles.

As asserted by the Hong Kong Bar Association, the

inormation ound on the online social networkingpages o potential jurors is no dierent romany publicly available materials subject always tocareul verication.



LAwyerS To conSIder The InFormATIon Found

on The onLIne SocIAL neTworkIng ProFILeS oF

PoTenTIAL jurorS In SeLecTIng A jury?

It is noteworthy to mention that such a practicemight not even be an issue or some jurisdictionsthat employ a jury system. In the English legalsystem, or example, even though a jury system isused, the particular practice o jury selection bylawyers is not utilised. As stipulated by the LawSociety o England and Wales, the twelve jurorsthat make up a jury are randomly selected usingthe electoral registers and there is thereore noopportunity or those selecting the jury to useinormation ound on OSN sites to infuence thechoice o jurors. Similarly, the Law Society oScotland provided the ollowing inormation andcomments about the practice in Scotland:

This could not happen under the present systemin Scotland, and it is very attractive to say no to this


23/40


question as it could lead to greater delay in juryselection and put members o the public undera high degree o scrutiny or what may well bethrow away comments that could be taken out ocontext. However i someone has a public prolein which comments and views on the key issue tobe determined, or example, racial, religious orhomophobic views where these are relevant to the

crime involved, there may be rare cases where it isappropriate or that inormation to be taken intoaccount. Lawyers would need to be upront with thecourt as to the reasons or the objections to the jurorand where that inormation was obtained, possibly

with the juror allowed to comment/respond. Againguidance rom the local bar association/law societyon this may be useul to local practitioners.

Jury instructions

Respondents were also asked whether they think that,in addition to routine instructions, jurors shouldreceive specic instructions limiting their onlinecommunications and use o online social networkingsites. Nearly 95 per cent o respondents rom

jurisdictions employing a jury system thought thatadditional instructions would indeed be benecial.


SySTem, In AddITIon To rouTIne InSTrucTIonS,

do you ThInk ThAT jurorS ShouLd receIve

SPecIFIc InSTrucTIonS LImITIng TheIr onLIne

communIcATIonS And uSe oF onLIne SocIAL

neTworkIng SITeS?

As highlighted by the Law Society o England andWales, jurors in its jurisdiction are instructed ontheir responsibilities as jurors and receive specicinstructions regarding social media: You must notdiscuss or post comments about any trial on socialmedia websites like Facebook or Twitter even aterthe trial has nished. This is contempt o court.

On this note, both the Law Society o Englandand Wales and the Law Society o Scotlandmentioned the recent and newsworthy Fraillcase in England.1 In this case, a juror was oundguilty o contempt o court or communicating

with an acquitted deendant over Facebook andconsequently imprisoned or eight months. As aresult o such misuse, the prosecution against the

other parties in the case was discontinued and largesums o money were wasted. The Law Society oScotland commented that theFraillcase highlightsthat there should be specic instructionsissued to jurors re[garding] their use o onlinecommunications and social networking.

According to the Ilustre Colegio de Abogadosde Barcelona, more than limit, the instructionsshould warn the parties in general o the risks thatmay arise rom their comments on social networksduring proceedings.

While recognising the need or specic juror

instructions, the Bar Council o England & Walescautioned that such instructions must be realisticand that jurors need to understand the dangers oa general enquiry and any prohibition should beclosely limited.

According to the Association o Danish LawFirms, there is indeed a need or specicallytailored juror instructions but only because theuse o social media is still relatively new. Thiscomment suggests that specic jury instructionsshould be delivered on an interim basis, only orsuch time until the issue becomes more widelyknown and settled.

While acknowledging the need or specicinstructions, the Panama Bar Association madethe ollowing comparison: Use the same rulesas a telephone: social media may be used or allcommunications except those related to the case.

Public perception o lawyers and the

judiciary

Public perception o lawyers

Respondents were asked whether, in their opinion,lawyers use o online social networks negativelyaects the publics condence in the integrity andproessionalism o the legal occupation. Only 15 percent o respondents responded in the armative.

1 Attorney General v Fraill & Anor[2011] EWCA Crim 1570(16 June 2011).


24/40


FIgure 16: In your oPInIon, doeS LAwyerS uSe

oF onLIne SocIAL neTworkS negATIveLy AFFecT

The PubLIcS conFIdence In The InTegrITy And

ProFeSSIonALISm oF The LegAL ProFeSSIon?

The Indonesian Advocates Association (PERADI),the Association o Danish Law Firms, the EstonianBar Association, the Young Barristers Committee,and the South Australian Bar Association all tookthe view that lawyers use o online social networkingdoes not necessarily or automatically impact thepublic perception o the legal proession, but thatsuch a question depends on other actors, suchas the specic nature o the use or the particularcomments being made by the lawyer.

A number o respondents outlined that lawyers

use o online social networking does not aect thepublic perception as long as such use is responsible(Bar Council o England and Wales) or appropriate(State Bar o Michigan International Law Section). Asenunciated by the Swedish Bar Association, such use,in principle, does not aect the public perception,but i the social network is not used in a sensible andproessional way, it may aect the publics condence.

According to the view o the Ilustre Colegiode Abogados de Barcelona, lawyers presenceon online social networks not only enhances thepublic perception o the legal proession, but alsocontributes to modernising it, so long as a good

use is being made. Similarly, the Panama BarAssociation elt that, in addition to not negativelyaecting the public perception o lawyers, socialnetworks [make] the legal proession morereachable and [bypass] the media bias.

However, as cautioned by the East Arica LawSociety, use o social networks by lawyers mustbe limited to their personal interests, or probably

just updating clients o the developments in acase; lawyers can also use the social networks orconsultation and research amongst themselves.

Further, the Colegio de Abogados de la Ciudad

de Buenos Aires suggests that education is neededon the correct use o online social networking andbar associations should ensure compliance with therelevant ethical standards.

Public perception o the judiciary

FIgure 17: In your oPInIon, doeS judgeS uSe

oF onLIne SocIAL neTworkS negATIveLy AFFecT

The PubLIcS conFIdence In The InTegrITy

And ImPArTIALITy oF The judIcIAry, Thereby

undermInIng judIcIAL IndePendence?

When asked whether, in their opinion, judgesuse o online social networks negatively aects thepublics condence in the integrity and impartialityo the judiciary, thereby undermining judicialindependence, almost 40 per cent o respondentsresponded in the armative.

Respondents seemed to think that the publicperception o judges is more negatively aectedthan that o lawyers by their use o online socialnetworking. This can perhaps be explained bythe neutral, independent, and detached role thatought to be assumed by judges, as opposed to themore partial and interested position o lawyers.

According to the Law Society o England andWales, the use o online social networking aectsneither the publics condence in the integrityand proessionalism o the legal proession nor thepublics condence in the integrity and impartialityo the judiciary:

[] there are challenges or the proessionwith the use o OSN sites, particularly as thelegal proession is one that needs to adopt highstandards o integrity and proessionalism. Theconduct o the proession on OSN sites shouldbe no dierent to how they conduct themselvesproessionally and socially, although it may bethat some additional guidance is needed onthe specic risks associated with the use o OSNgenerally. One specic challenge is that theuse o OSN in the proession will be extremely

varied, or example the nature o the OSN site

eg, whether it is social or proessional, and thenature o the comment/opinion. Also, the useo OSN sites is global with many countries usingthe same OSN sites, eg, Facebook. This maymake it dicult or the proession to adopt a


25/40


uniorm approach to using OSN in terms oguidance, although the proession has conductrequirements that they must uphold. I there isawareness in the proession o the challengesand risks surrounding the use o OSN and theseare addressed, there seems no reason why theuse o OSN should negatively aect the publicscondence in the integrity and proessionalism

o the legal proession. Furthermore, the use oOSN is a developing and growing area. I it is

viewed as a positive development by the publicthen there may be a corresponding expectationthat the legal proession should embrace it aspart o their working practices.[]as long as there is an awareness o the issuesaround the use o OSN and these are addressed,there seems no reason why judicial independenceshould be undermined by the use o OSN.

Some respondent bar associations elt that the

judiciarys use does not, in itsel, necessarily(PERADI) or automatically (Association o DanishLaw Firms) negatively aect its public perception.

As with the previous question, a number orespondents outlined that the publics perceptiono the judiciary is unaected by its use o onlinesocial networking so long as such use is responsible(Bar Council o England and Wales) or appropriate(State Bar o Michigan International Law Section).

An interesting distinction between contentand medium also emerged rom the responsesindicating that it is the content o any prolepage and comments made which could reducepublic condence rather than the mediumitsel. Sensible use o such mediums adhering to

proessional codes o conduct should enhancethe reputation o lawyers with potential clientsand society at large as it demonstrates that theproession is moving with the times and does notexist in a vacuum rom society.

As expressed by the Estonian Bar Associationand the Colegio de Abogados del Uruguay,

whether or not the judiciarys use o online

social networking aects the publics perceptiondepends entirely on the particular use made bythe judiciary o the social network. Further, theColegio de Abogados del Uruguay cautions that, byits very unction, the judiciary must be sparing inits use and public exposure since its contacts canlater be misused to argue against its impartiality;although its behaviour may be appropriate, it cannevertheless adversely aect the public condence.

Similarly, the Young Barristers Committee andthe Cayman Islands Law Society expressed thatthe question turns on the specic content o the

inormation posted by the judiciary on online socialnetworking sites. According to the Young BarristersCommittee, i no comments are made about thecases that appear beore that judge, then the publicperception is not negatively aected. Likewise,the Cayman Islands Law Society expressed theollowing opinion:

Use o online social networks does not itselmake any dierence it is what is posted there,and to some extent the nature o the networkchosen that could aect condence. It is amatter o judgement.

Voicing the contrary view, other bar associationssuch as the German Bar elt that such use by the

judiciary can potentially negatively aect its public

FIgure 18: do you ThInk IT IS AccePTAbLe For LAw ProFeSSorS And currenT And/or ProSPecTIve

LAw STudenTS To hAve eAch oTher AS conTAcTS (FrIendS, FoLLowerS, connecTIonS, eTc) on



26/40


perception. The Kurdistan Lawyers Associationstated that the judiciarys use should be on a limitedbase and basically concentrate on legal issuesand not involve unnecessary subjects which mayaect the integrity and condence o the public.Likewise, the Panama Bar Association opined that,just like in non-electronic media, judges shouldspeak solely by their decisions, which may also be

placed online depending on privacy concerns.

Law students

Relationship between law students and

proessors

The survey asked respondents whether they thinkit is acceptable or law proessors and current and/or prospective law students to have each other ascontacts on online social networking sites. 85 per cento respondents ound such a practice acceptable;less than ten per cent deemed it unacceptable.

Some respondents elt that social networkingsites could be used to reinorce positive proessionalrelationships between proessors and students,provided that law proessors online prolesare appropriate or student viewing. These sitescan also act as an accessible platorm to discussand share materials and as a convenient tool orcommunicating course inormation and engagingstudent participation.

According to the view o the Colegio de Abogados

de la Ciudad de Buenos Aires, once again, prudence

is the standard. Thus, i proessors and students goabout being connections in a prudent manner,

which would probably imply maintaining therelationship at a proessional level, such behaviour

would be acceptable.However, other bar associations retained a more

conservative approach on the issue and ound thebehaviour acceptable only in certain circumstances.

For instance, the Kurdistan Lawyers Associationelt that such behaviour is appropriate but only

with regards to the legal and curriculum subjects.As well, the Ordre des avocats de Paris deemedsuch riending acceptable only in proessionalsituations, such as the ollow up o courses andthe management o course curriculums, while theIlustre Colegio de Abogados de Barcelona reservedsuch behaviour or proessional questions that arerelated to the university such as sharing notes.

Evaluation o candidates or admission to the Bar

The survey then asked respondents i bar associations,societies and councils should consider the inormationound on online social networking proles in evaluatingcandidates or admission to the Bar. A little over hal orespondents encouraged such a practice, while 30 percent o respondents elt that it shouldnt occur.

The actual context o the communicationis essential to assess the consideration o theinormation available in public domain such as theinormal social nature, timing and the necessarycircumstances o the communication.

FIgure 19: ShouLd bAr ASSocIATIonS, SocIeTIeS And councILS conSIder The InFormATIon Found on

onLIne SocIAL neTworkIng ProFILeS In evALuATIng cAndIdATeS For AdmISSIon To The bAr?


27/40


The Ordre des avocats de Paris highlighted thatit is oten dicult to ignore extremely negativeinormation ound online and, in that case, to askcandidates to comment on certain points to thusavoid any misunderstandings.

Once again, some bar associations opted toconsider such behaviour acceptable only in certaincircumstances. For instance, the Tanganyika Law

Society and the Japan Federation o Bar Associationsdened such circumstances as when the inormationound is directly related to the character and tnesso the candidate, while the Latvian Council o Sworn

Advocates characterised such circumstances as whenthe inormation ound involves the candidates goodreputation. Similarly, the Colegio de Abogados delUruguay deemed the practice acceptable only i theinormation which appears online compromisesthe ethical integrity o the candidate, while theBar Council o England & Wales considered suchpractice acceptable only i the prole reveals

characteristics which would otherwise disqualiythe candidate. As well, the Indonesian Advocates

Association (PERADI) stated that such practiceshould be carried out only i the inormationound is useul or evaluating the candidates. While

viewing the practice acceptable, the Law Society oEngland and Wales restricted it only to the extentthat this is allowable under the UKs data protectionramework. On a slightly dierent note, the IlustreColegio de Abogados de Valencia thought thepractice to be acceptable when checking public dataonly. Further, the East Arica Law Society noted thatsuch practice is subject to verication, and the ruleso natural justice.

The Cayman Islands Law Society provided aninteresting view on the issue:

They should not routinely review it any more thanthey routinely review personal websites, p

online social networking report (feb 2012)

Documents