Who owns your departing fee-earner’s LinkedIn contacts? New guidance warns firms to plan ahead

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Social media: guidance says firms should consider the motivation behind checking candidates’ online activity

Law firms’ social media policies need to extend to issues such as who owns contacts and content developed by staff members through the use of networks like LinkedIn, while they should also be cautious about searching the social media activity of potential recruits, new guidance has advised.

The Law Society of Scotland’s guidance – which is more detailed than that issued late last year by its English and Welsh counterpart – said that “in every aspect of law and practice, solicitors should increasingly be asking what new implications are brought by social media and our increasingly digital lifestyle”.

The question of who owns contacts and content developed by an individual through use of social media for business purposes is a particular issue when that individual leaves, the guidance says.

“The situation can be complex – removing a complete list of clients from firm database would be likely to raise issues around theft, data protection, employment law and other issues. However, many staff may have significant data built up in, for example, LinkedIn. This may be a personal profile, but contacts may have been added during work time and through contact which would not have been made other than for a work relationship.

“Not only will the person continue to have easy access to these contacts, but when the person updates their profile with a new employer, it is likely an automatic message will be generated to inform their network.

“There are also issues around content provided to contacts. For example, where a firm mails or e-mails an HR update to HR managers, they retain control when any individual member of staff moves on – the publication continues to go to the same group of (potential) clients. When someone provides content through their LinkedIn profile, then followers move with them if they leave, and the list needs rebuilt by a new lawyer within the original firm.”

The guidance says these issues should be carefully covered in the firm’s social media policies, and be made clear when considering the use of social media by employees for business purposes.

It continues that checking candidates’ social media profiles prior to appointment may disclose considerable personal information “including information which may have equalities implications, such as race, sexual orientation, and religion… Employers need to be aware of the potential for such information to be revealed and take steps to ensure that discrimination on the grounds of a protected characteristic is avoided. Remember, it is often possible for experienced social media users to access information on who has been viewing their profile.”

The society suggests it would be good practice to consider the motivation behind carrying out such checks, and how to manage the risks involved in that process, such as disclosing to candidates that social media presence will be checked as a part of the recruitment process.

The guidance covers a range of other issues, such as ethical considerations and professionalism – for example, clients may be concerned to see their solicitor linked through social media with the lawyer on the other side of dispute – security and the issues social media is raising in substantive areas of practice like family and criminal law.

It says: “The legal profession should be aware of the potential for social media to affect a situation. For example, could a client’s behaviour through social media lead to a breach of a court order restricting communication or contact? Could a client’s online activity be used as evidence through statements made and locations indicated on social media sites?”

Paul Motion, convener of the Law Society of Scotland’s technology committee, said: “Social media has a lot to offer but it also presents certain risks and challenges. It is important to remember that professional responsibilities apply regardless of the medium of communication. By being aware of potential issues, solicitors can make the most of social media.”

The full guidance can be found here. The Law Society of England and Wales’s social media practice note is here.