Are lawyers free to post controversial statements like Israel Folau’s on social media?
I would warn lawyers against assuming there would be little or no professional or disciplinary consequences for posting their personal views on social media platforms. Lawyers certainly do need to exercise restraint and consider the consequences before posting because in fact very similar issues apply to law professionals as Israel Folau faced.
Special rules on discrimination and harassment have particular relevance here.
The public statements of a partner have direct reputational impact on the organisation. Partners are not only the brand ambassadors and public figureheads of firms to the outside world, but their conduct and dealings have legal effect for their firm, and fellow partners. Professional conduct rules apply to the law profession as well as in sport. Not just for those who are partners, but for all legal professionals. If you do not follow the rules, you risk being struck off and barred from practice, or other disciplinary consequences which can impact your livelihood – and future career prospects.
In addition, the disciplinary environment for lawyers is heating up significantly. We’ve seen cases where matters which were tolerated or received only warnings years ago are re-surfacing and in this heightened climate, lawyer’s positions are being terminated. Don’t post offensive comments and just expect to get away with it anymore.
To what extent can lawyers proffer their views (e.g. political, religious) online?
Standards are higher for lawyers than sports people, so we need to take more care, not less. There is no constraint for lawyers on holding religious or political beliefs but all lawyers, partners especially, have strict conduct rules covering the profession.
Don’t expect to be allowed to infringe the rights of others. To publicly state that a group of persons are inferior or should be vilified simply because of their protected attributes such as gender, race, disability, sexuality, or religion is unlawful discrimination and harassment.
This is not about an individual’s intention when making a comment publicly, but how it may reasonably be perceived by those who read it. Even if it was not the original poster’s intention, it is the effect that matters.
A firm owes its staff a duty of care. Under federal law, employers are vicariously liable for any discrimination or harassment of employees unless they took all reasonable steps to prevent it. How does it make other employees feel if a public figurehead of the firm makes such statements publicly? If there is, for example, racist or homophobic bullying in the firm, it’s even more important that the firm is seen to take action. Tolerating harassment sends a signal that it is ok and empowers bullies.
Sensible steps include having a social media policy that makes it clear what will constitute misconduct, and disciplining accordingly.
What are the disciplinary and regulatory implications of a breach for lawyers proffering their views online?
The Uniform Australian Solicitors Conduct Rules expressly prohibit solicitors from discrimination, sexual harassment and workplace bullying.
These constitute professional misconduct in South Australia, Queensland, Victoria, New South Wales and the Australian Capital Territory, and regulators may impose appropriate disciplinary sanctions for breach. While Tasmania, Western Australia and the Northern Territory do not expressly identify discrimination, sexual harassment and workplace bullying as professional misconduct, conduct rules throughout Australia prohibit legal practitioners from engaging in conduct which demonstrates they are not a fit and proper person to practice law or brings the profession into disrepute.
What are some examples of breaches of legal workplace codes of conduct that Shine Lawyers has seen?
Most law firms will also have a social media policy making it clear that statements which are offensive, discriminate or harass should not be posted online and staff will be disciplined for breaches.
Following #metoo, and the particular cases which have been seen in law firms, this has escalated in importance for the profession. We have seen firms take a much more severe line, and where conduct has been tolerated in the past it’s not now.
Firms are now much more defensively concerned about their reputation as an organisation, and more ready to let practitioners go – even where they are high billers, and have the sympathy of other partners – to be in a position to face off any scandal.
Think before you post!
Lawyers should not expect successfully to argue that they should be free to post views which offend others online. Often a better focus will be on establishing the sanctions are disproportionate or inconsistent when compared to others.
Acknowledge wrongdoing, show understanding and remorse - don’t expect an employer to take the risk of further such posts in the future. If facing internal disciplinary proceedings, always have an eye to professional misconduct issues also, and ensure that your position is suited to both.
It will be extremely rash to expect any law firm to tolerate vilification where racist, sexist or homophobic comments are published to colleagues or to the world at large. It's also likely a serious error of judgement for anyone hoping to progress a career in law. All those years of long hours and hard work matter. Keep your wits about you and exercise caution.
Written by Samantha Mangwana. Last modified: May 30, 2019.