BY ELISSA BAXTER AND NITESH PATEL – JUN 03, 2022 8:20 AM AEST
Snapshot
- Practitioners are using social media to provide legal services to clients, often at their request, without considering the risks.
- Courts have recognised the utility of social media when ordering substituted service, but only in appropriate circumstances.
- Practitioners should tailor their use of social media according to the needs of the However, practitioners should bear in mind their record keeping obligations as well as the privacy, security and privilege risks that arise from the use of social media.
- Failure to properly address the risks of conducting matters over social media platforms has resulted in claims against firms and practitioners that are difficult to defend, particularly where record keeping obligations have not been met.
Social media has changed the way we communicate and is increasingly being used in the law as another way to communicate with clients and other parties. While there can be benefits to using social media in some circumstances, there has also been a concerning trend where the defence of a claim has been impeded by the limitations of using social media as a business tool.
As practitioners incorporate the use of social media into their practices, they need to fully consider the limitations of social media and how to address the risks.
Substituted service via social media
Sometimes the quickest and most reliable way to contact someone is via their social media profile. Courts have, for some time, recognised this and ordered substituted service by social media when traditional means of service have failed – but only in appropriate circumstances.
For example, in Wakim v Criniti [2016] NSWSC 1723, Justice McCallum of the NSW Supreme Court made an order for substituted service of a statement of claim by the defendant’s social media accounts. Her Honour made the order after she was satisfied the plaintiff had made thorough and extensive attempts to locate the defendant physically but could not practicably serve the originating process in person. She also noted the defendant had been active on Facebook and Instagram. In that case, the Court was satisfied that the proceedings would be brought to the defendant’s attention if it was served on social media.
However, in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 the NSW Court of Appeal held that an order by the NSW District Court for substituted service by Facebook and email had not been validly made where the appellant was due to fly out of Australia the following day.
The Court of Appeal noted the respondent had not established that the Facebook page and email addresses identified were the appellant’s or that a post on the Facebook page was likely to come to the appellant’s attention in a timely fashion.
The Court’s approach to substituted service on social media demonstrates the need to carefully consider the appropriate use of those platforms. This concept applies to the use of social media by practitioners more broadly.
Record keeping
Lawyers, often at the request of clients, are increasingly using WeChat, WhatsApp, Signal and other social media chat services to communicate with clients.
This creates two problems from a record keeping perspective. First, it can be difficult, if not impossible, to extract a complete record of the relevant communications. Even where it is possible, it is not currently common practice for law firms to extract a full record of the communications. Secondly, access to most chat services is almost entirely via an application on the personal device of an individual and via their personal account. Where lawyers are corresponding with a client, those communications are therefore held solely on an individual’s personal device and out of the law firm’s control.
This makes it difficult for practitioners to comply with regulation 14 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, which requires solicitors to maintain a copy of their file for at least seven years after the completion of an engagement.
Incomplete correspondence also hampers the defence of claims made in the future. In one instance, all client correspondence for a business acquisition worth $1 million was conducted by an employed solicitor via WeChat, using her personal profile. The employed solicitor left the firm and erased the WeChat app on her phone, thereby erasing all the client correspondence. When a claim was made against the firm alleging inadequate advice, the evidence that certain advice had been given was unavailable, making defence of the claim difficult.
Privacy and security
In addition to the record keeping issues, there are also questions surrounding the end- to-end security of some of the popular communications platforms. This may make the communications on those platforms more susceptible to unauthorised access and exposes a law firm to potential breaches of confidentiality.
It is well known that some social media platforms are subject to surveillance. Gere have been numerous well-known instances of communications being blocked from transmission, unbeknownst to the parties, making those platforms unreliable as well as risky.
Privilege
A further consideration is the waiver of privilege over an ‘entire file’ by a client. Engagements conducted predominantly via social media often mean communication is contained in a single chat. If a client adds another person to that chat, that third party will have access to the entire history of the chat (as well as future messages) and thereby waive privilege over all legal advice given.
Chat groups created to progress a deal may involve multiple parties and their legal representatives. Gere have been instances where advice or communications have been conveyed to clients in those group chats, and it is very unlikely those communications will attract the protection of legal professional privilege.
Tread carefully
Practitioners communicating with clients via social media platforms need to carefully consider how to manage the risks of using those platforms. At a minimum, practitioners should:
- consider the device and the account from which social media communications will be sent and received from clients;
- extract copies of communications on social media platforms for record keeping purposes;
- consider the matters that can be communicated via social media platforms such as procedural matters or quick updates;
- when providing legal advice, switch to email and set out the advice in a more formal way; and to the extent possible, secure or lock down the chats or groups by which communications are exchanged
- with clients to limit the risk of inadvertent waivers of privilege.
This article originally appeared on lsj.com.au