Professional Conduct on Social Media for Lawyers

Twitter permits (nearly) anyone to broadcast their views on whatever is going on around them, whether a recent Supreme Court decision or the latest Taylor Swift album, as soon as the thought pops into their head.

For lawyers with an active Twitter presence (most of whom identify themselves as lawyers in their bios), the line between the personal and professional realm can be blurry. Tweets about cases and developments in the law are readily interspersed with tweets about the Blue Jays’ roster moves and the latest episode of The White Lotus. It’s easy to slip out of “professional mode” and tweet something that you would not necessarily say to a judge, a client, or the Law Society—even though a public social media profile is accessible to all of them.

Social media is part of the fabric of modern society, and it would be silly to suggest that lawyers shouldn’t use it (or shouldn’t post publicly) out of fear of regulatory consequences. But everybody should be mindful of what they post online—and for lawyers, that includes being mindful of how their tweets (or LinkedIn posts, or TikToks…) might engage professional conduct rules.

So far, there have been very few law society decisions relating to lawyers’ social media use. This article provides some thoughts on how to keep it that way.

Does the Law Society even have jurisdiction over lawyers’ social media?

Yes. Law societies can and have pursued discipline proceedings against lawyers and good character investigations against licensing candidates in relation to social media posts.

This answer is likely obvious to those who have “professional” social media accounts, e.g. a Twitter profile for their law firm, used to post about their wins in court or recent developments in their area of practice. Posts on such accounts would be captured under the professional conduct rules about marketing (discussed further below).

But this unequivocal “yes” may be less obvious to lawyers who maintain a personal social media account, on which they may not identify themselves as a lawyer, and on which they’ve included “disclaimers” such as “Retweets ≠ endorsements” or “Views my own”.

Law societies’ jurisdiction extends not only to lawyers’ conduct in a professional capacity (which could constitute “professional misconduct”), but also over lawyers’ conduct in a personal or private capacity if such conduct “tends to bring discredit upon the legal profession” (which could constitute “conduct unbecoming a barrister or solicitor”). The Law Society can bring discipline proceedings against its licensees on either basis (or both).

While I would suggest that context matters— in my view, an intemperate tweet about one’s workday would be more likely to “tend to bring discredit upon the legal profession” if the poster has expressly self-identified as lawyer—readers should keep in mind that the lack of an express connection to the profession or the use of a “disclaimer” will not insulate their conduct from regulatory scrutiny.

Generally speaking, law societies will not be concerned with purely private or extra-professional activities of a lawyer that do not bring into question the integrity of the lawyer, the legal profession, and the administration of justice.^[1] Regulators may, however, pursue disciplinary action if they have reason to believe that a client who learned of the lawyer’s actions would likely lose trust in that lawyer or the legal system—irrespective of whether the conduct occurred in a professional or personal capacity.[2]

Indeed, with respect to lawyers’ public statements relating to the law (discussed further below), the Rules specifically state: “the mere fact that a lawyer’s appearance is outside of a courtroom, a tribunal, or the lawyer’s office does not excuse conduct that would otherwise be considered improper.”^[3]

Relevant Rules of Professional Conduct

Lawyers’ conduct on social media can engage the following rules:[4]

Professional marketing of legal services

Rule 4.2-1 provides that lawyer marketing must be “in the best interests of the public and consistent with a high standard of professionalism”.

Commentary 2 to this rule provides examples of marketing that may contravene the rule, including:

• “referring to the lawyer’s degree of success in past cases, unless the statement is accompanied by a further statement that past results are not necessarily indicative of future results”;
• “suggesting qualitative superiority to other lawyers”;
• “suggesting or implying the lawyer is aggressive”; and
• “disparaging or demeaning other persons, groups, organizations or institutions”

Courtesy, civility, and good faith

Rule 5.1-5 provides that “A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings.”

Rule 7.2-1 provides that “A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice.”

Commentary 3 to this rule specifies that “A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners…”

Encouraging respect for the administration of justice

Rule 5.6-1 provides that “A lawyer shall encourage public respect for and try to improve the administration of justice.” Commentary 1 to this rule adds:

The obligation set out in the rule is not restricted to the lawyer’s professional activities but is a general responsibility resulting from the lawyer’s position in the community. A lawyer’s responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. [Emphasis added].

Commentary 3 to Rule 5.6-1 further provides: “Although proceedings and decisions of tribunals are properly subject to scrutiny and criticism… judges and members of tribunals are often prohibited by law or custom from defending themselves… a lawyer should avoid criticism that is petty, intemperate, or unsupported by a bona fide belief in its real merit, bearing in mind that in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism.”

Rule 7.5-1 provides that a lawyer may make public appearances and statements “[p]rovided that there is no infringement of the lawyer’s obligations to the client, the profession, the courts, or the administration of justice”. Commentary 3 to this rule provides that “Public communications about a client’s affairs should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that the lawyer’s real purpose is self-promotion or self-aggrandizement.”

Practical summary: What the Rules say you can’t do

The above-quoted professional conduct rules can be summarized with the following practical “don’t”s:

1. Don’t make disparaging remarks about judges, arbitrators, court staff, or other practitioners
2. Don’t market your track record for success without a disclaimer
3. Don’t brag about how you’re better than other lawyers and law firms (e. “suggesting qualitative superiority to other lawyers”)
4. Don’t exploit your clients’ affairs for self-promotion (and definitely don’t reference clients’ confidential information!)
5. Don’t make comments that are likely undermine public confidence in the administration of justice (unless you’ve thought it through carefully and genuinely believe it to be constructive criticism in the public interest)[5]

Some (hypothetical) examples of problematic tweets[6]

Five lawyers drove all the way to Orangeville for a consent order because this dinosaur judge doesn’t know how to use a computer. What a waste of time and money 🤦‍♀️

Welp. this JP at city hall is on one hell of a power trip. so unfair, and wasting everyone’s time. get over yourself already

Some family lawyers say paralegals aren’t competent to handle family law… but don’t they realize how stupid some family lawyers are?!

Another not guilty verdict for my client—but I can’t take all the credit. The Crown made it easy… I can’t believe he passed the bar.

Someone at [reputable law firm] gave my client terrible advice… that place is overpriced and overrated. I bill at half their hourly rate and I don’t make stupid mistakes.

Another $1 million + settlement for our clients

If you got a DUI over the long weekend, call or DM me. I’ve never lost a DUI case 🍻🥂

Miscellaneous tips for the Extremely Online lawyer

Although this column has focused more on the risks to lawyers from using social media, it can also be a great marketing tool, a venue for debating ideas with colleagues in the bar, and an accessible way to keep the public informed about pressing issues in our law. Regardless of who owns any particular site, social media isn’t going anywhere anytime soon. So, a few parting tips for lawyers who want to leverage the benefits of social media while staying out of trouble:

• Assume that someone at the Law Society or the judge hearing your case is reading your tweets. Rumour has it that some judges have anonymized profiles to lurk on #lawtwitter.
• (For millennials and Gen-Xers) Some of those law school classmates you friended on Facebook or followed you on Instagram 10-17 years ago could be judges now. Govern yourself accordingly.
• In a collegial bar, opposing counsel might be a friend or follower on your “private” accounts. Be mindful of what you post and how it might affect your reputation or your clients. Do not, for instance, request an extension to deliver materials because of an “unavoidable conflict” then post an Instagram story from a ski lift (based on a true story).

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^[1] Law Society of Ontario Rules of Professional Conduct [LSO Rules], Rule 2.1-1 and Commentary 4.

[2] LSO Rules, supra note 1, r. 2.1-1 and Commentary 3-4.

^[3] LSO Rules, supra note 1, r. 7.5-1 and Commentary 1.

[4] All references are to the LSO Rules, which are the same or substantially similar to the conduct rules of other common law jurisdictions across Canada: see Federation of Law Societies of Canada Model Code of Professional Conduct, online: https://staging2021.flsc.ca/what-we-do/model-code-of-professional-conduct/interactive-model-code-of-professional-conduct/

[5] It may be difficult to know where the line is between justifiable criticism of an imperfect justice system or flawed reasoning in a decision, on the one hand, and “irresponsible” or “intemperate” criticism that weakens public confidence in legal institutions, on the other. This may be the subject of a future column. In the meantime, my recommendation: if you’re not sure what side of the line you’re on, err on the side of not posting online for the world to see.

[6] While some of these examples derive from the two LSO decisions relating to unprofessional social media use (linked above), others are modified from materials prepared for the Law Practice Program with Jonathan Khan, Caroline Mandell, and Neil Guthrie. To the extent they are not funny or reveal the author to be an uncool millennial, I deserve all the blame.