When Does Social Media Use Equal “Conduct Unbecoming” for Lawyers?
Nova Scotia Barristers’ Society publishes report providing guidance on the ethical use of social media
The Nova Scotia Barristers’ Society recently published a report entitled Conduct Unbecoming: What should the Society do when it comes to gossip, online posts and bad behaviour on social media? The report, written by an NSBS staff lawyer, begins by noting that the Society has seen an upswing in reports, calls and complaints to it regarding social media activity by lawyers. While it is clear that lawyers enjoy freedom of expression under s. 2(b) of the Charter in the same way as all citizens, there are ethical constraints on them which potentially require the regulator to intervene. Not every form of speech was necessarily subject to Society scrutiny and/or discipline, and the report noted that such regulatable speech would fall into one of three categories: 1) Speech that could be considered imprudent, rash, rude, defamatory or even offensive, but does not cross the threshold into being discriminatory or harassing; 2) Speech that involves the justice system: encouraging respect for the administration of justice; and 3) Speech that is discriminatory or harassing.
The report reviews the decisions of the Supreme Court of Canada in Doré and Groia, noting that there is a balance to be struck between the fact that lawyers have voluntarily joined a profession which may require constraining their speech with the desirability of lawyers being able to speak their minds. In conclusion, it offered a set of principles that would be used in evaluating a lawyer’s speech:
First principle: A lawyer has “willingly joined a profession that was subject to rules of discipline that [they] knew would limit [their] freedom of expression”
Second principle: We must take into consideration the importance of the expressive rights in each case, in light of (a) the lawyer’s right to expression and (b) the public’s interest in open discussion.
Third principle: The Society should only limit its members’ freedom of expression in their private lives insofar as it is necessary to do so to “protect the public interest in the practice of law.”
Fourth principle: The Society must consider the unique circumstances in each case: such as what the lawyer said, the context in which they said it and the reason it was said.