During the second decade of the 21st century, social networks became ubiquitous throughout the world. At present time they cover hundreds of millions of users, and there are people of various professions among them, including lawyers. The active presence of lawyers in social networks has been the subject of numerous discussions in the professional community. First of all, the issue of the appropriateness of creating lawyers pages in social networks and their active filling not only with professional, but personal information is discussed.
Necessity of the regulation of activity
Discussion about the presence of lawyers in social networks was determined by repeated scandalous situations in which legal consultants, lawyers and even judges were involved. As a rule, these scandalous situations are typical. You can divide them into several types:
–Demonstration of personal photos and video in social networks, on which lawyers are imprinted in an informal atmosphere – on vacation, with alcoholic drinks or intoxicated, in an intimate way.
–Unprintable lexicon used by lawyers in social networks – both on their pages and on forums and discussion sites of the Internet.
–Aggressive imposition of own services and self-advertising, which can take on the most ridiculous and defamatory forms.
–Public statement of their political preferences, evaluation of the actions of certain public persons, not from legal, but from political positions.
Such situations are often the focus of media attention, or they are used to take advantage of competitors, political opponents, clients, and sometimes even the accused people. Compromising documents on the objectionable lawyers tried to find always (it is enough to recall the famous case of «a man who looks like the Prosecutor General,» as a result of which the Prosecutor General Yury Skuratov lost his post), but in this case, lawyers show compromising on themselves. It is nothing but this circumstance that led the professional community of Russian lawyers to turn to the discussion of the need to introduce some regulation of the activity of lawyers in social networks.
In favor of regulating the activity of lawyers in social networks, the leadership of the Federal Chamber of Advocates (FPA) of the Russian Federation took the floor. The purpose of this regulation should be to distinguish between the personal and professional aspects of the life of Russian lawyers on their pages in social networks. Indeed, this problem is very acute, especially for the Russian professional community. Abroad, there have already been repeated attempts to regulate the presence of lawyers in social networks.
One of the most famous documents is the International Principles of Conduct of Legal Professionals in Social Networks, dated May 24, 2014. The group directly working on the principles includes several lawyers from different countries – Anurag Bana (IBA LPT, Chairman of the Working Group); Stephen M. Richman (USA), Robert Heslett (England); Alice Hawker (IBA LPT); Simone Cuomo (CCBE, Europe); Tatsu Katayama (Japan); Masimo Luis Bomchil (Argentina).
The purpose of these principles is to help organizations of lawyers and supervisory bodies in using social networks in a way appropriate to professional responsibility and the correctness of the legal profession. The document emphasizes the importance of social networks in informing the professional activities of lawyers, including in the communication plan, in the direction of notifying about the most important news of the legal system. At the same time, it is emphasized that the use of social networks can have undue consequences, which run counter to permissible and established practices that violate the professional ethics of lawyers.
As a result of a detailed consideration of the problem of the presence of lawyers in social networks, the International Bar Association (IBA) formulated six principles – the rules of behavior of lawyers and lawyers in social networks. As the first principle, the independence of lawyers is distinguished as impartiality in the provision of legal services and the absence of external pressure on professional activity. To maintain independence, a lawyer should analyze the consequences of his activity in the social network, including the contacts established in it, as well as the content of the published content. Posts, comments and any other information published by a lawyer in social networks should be consistent with the principle of professional independence of a lawyer.
The second fundamental principle of the activity of lawyers in social networks is honesty. It is based on the ethics of professional communication and implies the need to comply with ethical standards, which directly affects the reputation of not only a particular lawyer, but the entire professional community. Unethical and unprofessional publications of a lawyer in social networks can lead to serious reputational costs, loss of trust of potential clients and society as a whole. Therefore, network activity should be treated very carefully.
The principle of responsibility in the understanding of the authors of the document is related to the confidentiality of communication and the positioning of lawyers in social networks. Information published on social networks can be used by interested parties to the trial, including against the lawyer who published it. Therefore, we must carefully think over the content of the published content. Numerous examples are known, when the publication of certain information in social networks became the basis for appeals to the court.
The fourth principle is confidentiality, which must be observed in social networks as well. First of all, a lawyer should understand that social networks represent a very productive space for data leakage or theft, including personal information about the client. Therefore, it is necessary to take care of the protection of information, and the most optimal way is to taboo the placement of any confidential information in social networks, as well as communicate on confidential topics in private messages.
The preservation of public trust is the fifth most important principle of behavior in social networks, focused on ensuring reputation. Being active in social networks, a lawyer should follow such rules as restraint in communication, correctness, absence of information discrediting him. Lawyers, like any other people, have the right to privacy, but pages in social networks should not contain information that could represent a lawyer or his way of life in a negative way.
The sixth principle is addressed, first of all, to law firms and associations of lawyers. Its essence lies in the fact that if law firms decide to use social networks in their daily activities, they need to develop clear regulatory instructions that regulate the behavior of their employees in social networks.
Currently, many countries of the world made attempts to streamline the rules for the activity of lawyers, especially attorneys, in social networks. So, in France, the public activity of lawyers is controlled by the Internal National Regulations. In the United States on June 9, 2015, the Recommendations for attorneys on behavior in social networks were published in accordance with established ethical norms and rules (SOCIAL MEDIA ETHICS GUIDELINES), developed by the Bar Association of New York – one of the largest organizations of professional lawyers in the country.
A number of foreign rules define in detail the nature of the activities of lawyers in social networks. For example, the regulations developed by New Hampshire lawyers require the lawyer if he is added to friends to the witness in the case, to indicate that he is a lawyer and to report on the interests of which client he represents. On the other hand, the rules of conduct in social networks create additional opportunities for lawyers. For example, the Bar Association of New York in the published «Recommendations» emphasizes that lawyers can capture correspondence with their clients in social networks using screenshots. Such fixed correspondence in printed form can be submitted to the courts, where it will be taken into account as evidence.
The main problems in modern Russia
In Russia, such detailed regulation is not created yet, and many representatives of the legal community already feel the need for some ordering of the behavior of their colleagues on the Internet. An attempt to regulate the activities of lawyers in social networks is certainly a great advance towards increasing control over the observance of professional and business ethics by participants in the professional community of lawyers. Initiators of the introduction of regulations in Russia try to broadcast and extend the activity of lawyers in social networks the effect of universal legal ethics. However, in this case, this attempt faces many problems.
First, is almost impossible to monitor the activities of all lawyers (and this is millions of professionals). For this, there neither organizational resources, nor regulatory grounds, or even a practical need exists.
Secondly, in the modern world, social networks are ubiquitous and have a major impact on the sociocultural life of society. A whole generation of young people has already been educated and received legal professions, for which social networks are an integral part of everyday life. Wean them from the activity in social networks is impossible.
Thirdly, social networks have become a space for professional activity of lawyers, since many lawyers, especially those belonging to the younger generation of professionals, work and provide their services online. In the course of their work, they themselves develop some unwritten rules of activity in social networks.
Fourthly, we should not forget that lawyers also have the right to private and public life, and if they do not want to draw a clear line between them, it is also their right. And this is the point incidentally said by one of the most famous Russian lawyers, Henry Reznik, during the discussion of this problem.
Considering the existing problem, we should not forget about the significance of the very concept of «lawyer». With regard to this topic, we can distinguish 5 categories:
1)legal officers of firms,
2)private practitioners and other independent personalities (for example, human rights defenders),
3)lawyers – members of bar associations,
5)prosecutors, investigators and other public servants.
The differences between these categories are very significant, so the question of the activity of representatives of these categories in social networks should be based on the specific professional group of lawyers in question. The behavior of judges, prosecutors, investigators and other public servants – lawyers in social networks should be regulated most strictly, and the agencies themselves should be concerned about this by issuing appropriate regulatory and legal documents. The activities of lawyers in social networks should be determined by general principles of advocacy ethics, or by specific regulations of associations or bar associations. Private practitioners are the most free ones in this situation, they in fact determine the limits allowed in their positioning in social networks, guided by common sense and the laws of the country.
In any case, a lawyer who actively positions himself in social networks and leads his own pages, however, should still adhere to the following recommendations:
–Observe the confidentiality of professional information about their work, the circumstances of the cases under consideration, clients, etc.
–Refrain from using obscene lexicon, incorrect statements to opponents.
–Avoid political agitation and propaganda in his statements as a lawyer.
– Publish information that has been verified and does not contradict the legislation of the country.
– Observe reasonable boundaries between public professional and private life, including limiting the possibility of viewing personal materials that are not designed for a broad audience of colleagues and potential clients or opponents.
Thus, we see that in Russia today the regulation of the behavior and activity of lawyers in social networks is virtually non-existent, in contrast to the United States, France and a number of other states where the activities of lawyers, especially attorneys, are strictly regulated. At the same time, extensive discussions are held on this issue in the professional community of Russian lawyers, which does not exclude the possibility of any attempts to formulate and publish regulatory documents in the foreseeable future. Most likely, while they will only have a recommendation character.