The Ethics of Friending

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. 😉

EDIT 13/04: H/T to Laurie Anstis (@ljanstis) for reminding me about THIS : Law Society Guidance on Social Media.

 

7 thoughts on “The Ethics of Friending

  1. I loved this post on what I agree are significant issues for the legal profession.

    The familiar phrase in social media circles is “new tools, old rules” – that is, there’s nothing really special about social media. It is just a new form of communication that works according to the same social norms that have prevailed for thousands of years.

    I do think there are some differences though. One of the things with social media is that it has the capacity to bring into the open things that previously went on behind closed doors. What might once have been said at dinner at one of the Inns of Court, or in a private members club, is now said out in the open. If these connections can’t withstand scrutiny in the open on social media then maybe they shouldn’t be going on behind closed doors either? One of the virtues of social media can be that it encourages openness and honesty in relationships.

    • Hi Laurie,

      I agree that whatever connections are made should be able to withstand scrutiny – whether they are face to face or virtual. I just think that there is far more scope for professionals to be criticised, rightly or wrongly, when every connection is not just open to being interpreted as actual or potential improper influence, but is also visible, recorded, and available as “evidence” of such suspicion or perception. I think that you are right – social media should encourage us to reflect not just on what they make visible via the internet, but on transparency more generally. Transparency is a big issue in my field in particular – and I view these as opportunities to build public trust rather than sites of defensive behaviour.

      Lucy

  2. Totally agree. Transparency is both the key and the danger.

    Far better for the behind closed door stuff to be in the open but the external perception is an important factor.

    I was very bemused to be asked to connect on LinkedIn by a senior person in a company at a time when I was representing an employee against it.

    It is always nice to be instructed by the other side after giving them a spanking but you wouldn’t act for them while they are an oppo and I wasn’t going to accept this invitation either.

    How would my client have felt if and when s/he found out?Did I have a duty to disclose anyway – I did tell the client as it happens?

    Remembering the old adage about being comfortable for your letter to be read out in open court is probably a sensible approach not just to tweeting, blogging and comments but to visible connections too.

    What doesn’t help with are the invisible connections. Potentially your best friend on Twitter could be your opponent in Court or on a case if anonymous (and very cagey).

    Extreme perhaps but just imagine if your anonymous Twitter pal was a real life ‘enemy’ and … oh wait, I’ve Got Mail; be right back …

  3. Lots of food for thought here, but it reminds me that when I was an articled clerk (yes I am that old) and newly qualified solicitor I felt uncomfortable about the cosiness of the professionals in court who all seemed to belong to a club with its own rules and language that excluded a young female practitioner like me, and far more obviously, our respective clients. I have noticed that, more recently, professionals are far more sensitive to the perspective of the lay person in court and observe more scrupulous boundaries, rather than gathering together to discuss mutual colleagues’ cricket scores, etc. This must be a huge improvement in perceptions of justice.

  4. I don’t tweet (too much like giving an alcoholic the keys to the drinks cabinet) and I won’t accept a connection on Linked In unless I know them or they are directly recommended by someone I trust. I don’t see a problem regarding an expert however: I am connected to solicitors who owe a duty to the Court and there is no suggestion that this compromises their integrity. Why should an expert be different? We are frequently asked to recommend experts – why does a social network link make a difference to that exercise? I think it would be appropriate to disclose the link if the expert is being considered for a joint instruction, but that is as far as it goes.

    Cross-examination of someone to whom one is connected is no different, surely, to cross-examination of someone one knows. The knowledge of the witness should be disclosed, I think, but it is not something that requires consent from a client. Transparency is not the same as moving the decision as to whether one can properly conduct a case from the barrister to the client, just as recusal is a matter for the Judge. To behave otherwise undermines professionalism.

    As far as blogging is concerned I have occasionally identified legal issues in a case, but never a client – either by name or by the giving of any factual detail which could lead to that person being identified. Doing so would be clearly improper, given that the confidentiality in client confidentiality belongs to the client. That applies even more when the media is reporting on a case in which counsel is involved and any comment coming from counsel would be linked by any reader with nous to that case: in such circumstances the rule should be ‘shut up’. The primary question should always be whether a client can be identified.

    • See, this is why I think it’s important to think about because we have come up with quite different approaches – and we are the ones who have bothered to give it a moment’s thought!

  5. Very interesting.

    I think it is made more complex by the issue of how we use social media – for instance, I am on LinkedIn, but very rarely actually join discussions – it’s mostly handy as a sort of extended address book, so I would not feel that being ‘linked’ to an expert would be an issue, any more than the fact that I have their CV in my ‘Experts’ folder or that I have instructed them in previous cases would be an issue.

    I would see it as an issue if I had been involved in discussions around specific issues which were likely to come up in the case they were to be instructed on, and in that casse would raise it at the time the ID of the expert was being discussed.

    On the other hand, my facebook is personal (and private) and I only friend people I actually know and have some kind of pre-existing relationship with, so if I were friends on facebook with an expert I would feel that was something I ought to disclose, in the same way that I would an off-line friendship.

    I don’t accept LinkedIn requests from current or former clients or from parties in cases I’m involved in.

    In terms of blogging about or discussing cases online this is not something which I’ve ever done (perhaps because the only blog I have is a personal one, not a Legal blog)but I agree with Simon that the key is ensuring that the case can’t be identified.

    I think that one of the dangers is that blogging etc ‘feel’ more informal, so we are mnore likely to include mentins of a client’s attitude or opinisions, rather than sticking to the more formal style of an (anonymised) case report.

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