Karl Schuler is an attorney in Johannesburg who solicited legal questions to answer on Twitter using the Twitter account @TweetMyAttorney. I picked up on this through Jessica McDonald’s tweet about the profile and mentioned that the Law Society would probably have a difficulty with Schuler’s invitation to members of the public to submit legal questions. This sparked a bit of a debate on Twitter.
The debate between myself, Eve Dmochowska and Ivo Vegter (primarily) was whether Schuler should be permitted to give legal advice on Twitter. While he has since changed his approach (and this is reflected in his current Twitter bio which appears in the tweet screenshot above), the question remains a valid one. The one challenge I raised is that the Law Society would likely regard such an approach as touting. I approached the Law Society of the Northern Provinces a couple years ago about a proposed subscription legal advice service and I was informed, a year later, that such a service would not be permissible under the Law Society’s rules. If I remember correctly the concern the Law Society was that it would amount to touting. This may seem absurd but its important to bear in mind that the legal profession has a history of fairly conservative advertising practices and rules regarding ethical behaviour. It wasn’t too long ago that attorneys were not permitted to advertise at all.
Confidentiality and legal professional privilege
While touting may be a regulatory bar to giving legal advice on Twitter and other platforms, there are more compelling reasons why giving legal advice on platforms specifically like Twitter and similar social services is a bad idea. To begin with I have a concern about the implications for confidentiality and legal professional privilege (also referred to as attorney-client privilege). This privilege protects communications between attorneys and their clients from general disclosure. Correspondence between an attorney and a client can’t, for example, be disclosed in court by a 3rd party. There are some exceptions and instances where privilege wouldn’t apply but this privilege is critical. What many people don’t know is that this privilege vests in the client, not the attorney. The attorney is bound by it and the client can waive privilege. If the client waives privilege then those communications are open game and admissions which a client may have made to the attorney in confidence can be disclosed and used by other parties.
Looking at tweets people have directed at Schuler, I see a number of tweets containing potentially sensitive information and which should be kept confidential:
If I do not pay my rent can the sheriff attach and remove my movable assets immediately by means of interim Court Order?
hi I was arrested 4 suspected drink n drive n it took 3hrs b4 dey took blood samples n charge Me, do dey hv a strong case?
There are a number of problems here. These tweets are public and could be regarded as evidence of the Twitter user’s intention to waive privilege. This would clear these tweets for use as evidence in legal proceedings. There are implications outside legal proceedings. Imagine the person who tweeted about being arrested for drunk driving being Googled by an industrious insurance company employee when the tweeter applies for car or life insurance. What if a prospective employer finds the person’s Twitter profile and discovers these tweets? There are a number of potentially unforeseen and undesirable consequences which can be fairly severe.
The potential consequences for an attorney giving legal advice in such a forum can be as severe. Twitter is not an ideal platform for legal advice at all. The platform is too constrained and too public to enable a lawyer to take detailed enough instructions from a prospective client and give appropriate advice. Taking instructions from a client can be a lengthy process. As lawyers we need all the facts and we need to consider the myriad legal issues which apply to those facts. Advice we give is almost always far too involved to be satisfactorily encapsulated in 140 characters. Trying to squeeze instructions or a brief and consequential advice into a couple of tweets is reckless on both sides. It is almost guaranteed to result in a professional negligence claim when inadequate advice is given on the basis of an incomplete factual matrix and the client relies on that advice to his or her detriment.
Sharing knowledge is good
Where Twitter and other platforms is really useful is raising legal issues and sharing general knowledge about those issues. Here I am referring to posts which discuss legal developments or legal challenges in more general terms and which are not specific to a particular client’s circumstances. The posts may fit a particular client’s situation but they can’t replace specific legal advice. This may sound like propaganda by lawyers who want to retain their income streams but very few cases are so alike that they warrant the same legal advice. Facts vary and cases develop in different directions. The law is increasingly complex and the end result is that legal advice must often be tailored to clients’ specific circumstances.
I am a big believer in sharing my thoughts about and knowledge of the law, particularly in my area of speciality. It is an important part of meaningful access to the law and I would love to see more lawyers doing this more often. Legal knowledge is frequently trapped in silos and consumers and businesses often rely on bad and second-hand legal advice, broken telephone style. Empowering clients with more knowledge helps them make better decisions.
Ultimately, using social media to educate and inform people about the law is something more lawyers should be doing and I think it is more beneficial than harmful, by far. Giving legal advice using social media is problematic for a number of reasons, though.