If I view the Linkedin account of the other side, could I be breaching the duty of confidentiality I owe to my own client?
By Donna Cooper.
Imagine you are a partner in a high profile specialist family law firm. You have been consulted for legal advice by the wife of a very well known television personality who has no idea that his wife is contemplating leaving him. A day later, you receive a telephone call from the husband demanding to know why a junior solicitor from your firm has been viewing his Linkedin profile which he can see as he is a Premium member and he asks you if his wife has consulted your firm for family law advice.
The duty of confidentiality
Without doubt, you and your firm owe a duty of confidentiality to your client not to divulge even the mere fact that she is a client of your firm (without her prior consent.) A prudent lawyer would advise the husband that the firm never discusses the identity of their clients. The really interesting question is whether the junior solicitor might have breached the duty of confidentiality owed to the client as a result of doing the Linkedin search?
The two opposing views:
Over the course of this year, we have asked this very question to many different audiences of lawyers, and we’ve found there are two schools of thought on this within the legal fraternity in Victoria:
(1) The first is that there is no breach of the duty of confidentiality owed to the client in the above scenario, as the firm has not expressly divulged any confidential information about the wife. Also, the very purpose of Linkedin is for professionals to be able to search for each other and review their professional background and other posts/articles (all of which is publicly accessible.) Account holders agree to allow their profiles to be searched (within defined security settings) and the junior solicitor hasn’t done anything wrong.
(2) The second and contrary view is that, but for the fact that the junior solicitor reviewed the husband’s Linkedin account, the husband would not have known that the wife was seeking legal advice regarding their marriage. It therefore follows that this action by the junior solicitor has amounted to a breach of the wife’s confidentiality.
There are very few black and white answers to the ethical challenges which we face in daily legal practice (especially in the area of social media.) You might be interested to know that the majority of audiences thought that this scenario did not amount to a breach of confidentiality. Despite this, most audiences did agree that this scenario might in fact amount to a ‘fact or circumstance’ which might give rise to a professional indemnity claim about which the firm might need to notify its PI insurer.
What’s the lesson in all this?
It’s important to be aware that social media has opened up a whole new area of risk for law firms, and it couldn’t hurt to ensure that your firm has an up-to-date social media policy and that it regularly provides all staff with appropriate training to enable them to comply with it.
Also, many firms are beginning to recognise the value that their junior solicitors bring to the conversation by imparting a lot of good
intelligence on the way social media is being used by younger generations of lawyers. Consulting with the junior lawyers in the formation
of the firm’s social media policy is recommended.
Rule 9, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: https://www.legislation.nsw.gov.au/regulations/2015-244.pdf
Social Media - Challenges for Lawyers and the Courts, Justice Steven Rares, Federal Court of Australia, 20
October 2017, Speech to Australian Young Lawyers’ Conference http://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20171020
- Law Institute of Victoria Guidelines on the Ethical Use of Social Media https://www.liv.asn.au/getattachment/Professional-Practice/Ethics/Ethics-Guidelines/20161117_GDL_ETH_EthicalUseSocialMedia_CouncilApproved_Final.pdf.aspx
- Legal Ethics and Social Media, A Practitioner’s Handbook, Jan Jacobitz and John Browning American Bar Association, ISBN 978-1-63425-782-4, 2017 .