The Bar : meet Social Media...Social Media : meet The Bar. How doo you doo? *whispers - don't shake hands whatever you do!*
The blogging bar is small but has grown exponentially since I struck out almost alone in 2007, to the snooty derision of certain colleagues. Even those members of the bar who still rely on a typing service rather than their own fingertips are beginning to pop up on Linkedin, no doubt prompted (dragged) by more savvy clerks and Chambers CEOs. And a reasonable few are embracing twitter, or at least taking a curious peek at it from the sidelines. Appropriate caution and a bit of healthy skepticism are one thing, but what of the ethical dimension? There are plenty of rules of conduct that apply to social media generally, and a lack of regard to these can result in a twitter storm or unpleasant trolling incident for the naive or ill prepared, but above and beyond this - are there ethical considerations particular to the bar? I think there are. And I don't think that we have thunk them through enough just yet.
Client confidentiality is an obvious one (and for family lawyers contempt of court arising from the privacy of proceedings). It's been dealt with before (e.g. here) and I won't rehearse it here but it's pretty fundamental and it one that a surprising number of lawyers on twitter seem to get wrong. What you tweet or blog may be anonymous to most people, but will it be unidentifiable to your client, your opponent, the other party or the judge who sees what you've posted, with your location visible? There are judgment calls to be made all the time when we blog about real clients and real cases.
And as the Geeklawyer episode recently demonstrated it is possible for tweets to bring the profession into disrepute (although the Geeklawyer case was about more than just conduct by tweeting). Whilst most people with a pinch of common sense don't get too twisty or hysterical about a poorly judged tweet, twitter is full of people without such common sense who thrive on frenzied and immediate overreaction. So it pays to be careful. It is possible to libel, offend, harass or commit a criminal offence all in 140 characters or less.
But actually what prompted this post was an impromptu discussion about connections on Linkedin, arising from a chat over a work-avoidance cuppa char and a mutual exchange of the more bonkers requests we had recently received. Twitter and Linkedin have both been really useful ways of making connections with people I would never have otherwise known, and of sharing ideas and conversations with a broader range of people. I have connected with lots of really interesting and likeminded people through social media, and generally this outweighs the number of tiresome idiots. Some are colleagues at the bar, some are solicitors in firms who have instructed me, some in firms who have never instructed me (and who never will for reasons of geography), some are clerks at other chambers. Some are litigants or campaigners or employees of organisations. The great thing about twitter is that it is a space for conversation between people who might in other circumstances see themselves as competitors. If you use twitter well you can filter out the dross, the obvious marketing drivel, and find the stuff that is mutually interesting. There is a sharing of information, expertise and resources that I don't see elsewhere. And the blogging community is extraordinarily supportive in a collegiate sort of way. I often receive emails from newbie bloggers asking for help or guidance and I readily give it; I myself have received unasked for support from other bloggers when I have faced controversy or difficulty.
So social media is an environment where normal barriers are broken down. But in our everyday job as lawyers these barriers and boundaries on conduct and on relationships still exist. So what about independent experts? A colleague recently said to me that she accepts any connection request that comes her way. A discussion then ensued: If an independent expert were to follow you on twitter should you follow back? If an independent expert on Linkedin sought to connect should you accept? Her view was, "Why on earth not?". Mine was, "Definitely not!". The third colleague's reaction was "I've never really thought about it".
For some people following someone on Twitter or connecting on Linkedin means not a lot - it does not signify friendship or closeness, so what's the problem? But although I'm not "friends" with all my contacts I don't share that view. I have had a number of follows or connection requests from independent experts: I don't follow back and I have declined to connect. Some are unknown to me, they are usually counsellors or psychologists and likely I think to be hoping that a broader network will lead to instructions. For my part I would never recommend an expert based on a Linkedin profile or connection and I'm rather offput by what feels like touting for business. Some however are experts I have encountered at court - sometimes experts I respect and others who I have less favourable views about. I don't want to cause offence but I tend only to connect to people I know or where I think there could be some mutual benefit to the connection (and when I say mutual benefit I don't mean pecuniary, it might just be an interesting conversation). I don't think it's appropriate to include in my network people who may be acting as independent experts in cases upon which I may be instructed in future. That's not to say that I think a Linkedin connection would in fact compromise their independence (or mine), but I don't think it looks so great. And in a world when lay clients often look up their own and their opponent's counsel on the internet, click through from the chambers profile to Linkedin...it's not hypothetical. I know at least one colleague who is being followed on twitter by a litigant in person on the other side of a case he was working on. I'd put money on his Linkedin profile having been reviewed by said litigant in person.
The counter argument is that there are out of court encounters between professionals working in the family justice system happening already - at social events or training events, conferences, committee meetings etc., so what's the difference? The difference is that they are not open to interpretation as a public statement of allegiance or endorsement in the same way as an active follow or direct connection. And frankly I'd rather avoid the waste of time argument that it might one day prompt.
And in truth I think it would be uncomfortable to be connected to an expert I might one day have to robustly cross examine, challenge or even criticise. I don't think it would alter the vigour with which I might conduct that task, but might my client reasonably think it had if after the event she saw I was chums on Linkedin with the expert who had testified in favour of the other side? Again, not really a discussion I ever want to have, thanks.
I think Twitter is slightly more nuanced, for a couple of reasons. Firstly, a person can follow you without you following back. And it's generally good twitter manners to follow back. It's accepted I think on twitter that a follow is not necessarily endorsement. I follow a number of twitter accounts out of interest, or to keep track of the stream of rubbish that flows forth. And I'm sure many of my followers think I'm a [ corrupt / moronic / boring / insert appropriate adjective ] bleep in exactly the same way. But I do still generally decline to follow experts on twitter, unless they are talking about something I really want to keep track of.
It seems to me that in these days of heightened anxiety about the probity of family court proceedings, of experts and of lawyers, we can keep our own lives more simple and minimise the chances for confidence in the justice system to be diminished by steering clear of social media connections with experts. Perhaps that's more pragmatism than ethics, but it's where I'm coming down at the moment.
I'd be really interested to know what other people's views are on this. I think many of the same issues arise for solicitors as barristers, but in some respects the problem seems more acute for trial advocates. Am I over thinking this or is it a genuine issue that we need to grapple with?
In the meantime, some of you will now know why you never got a reply to that connection request or a follow back. It's not personal. 😉