New Zealand Law Society - Using Facebook post didn't break rules
Published on 5 July 2019
[All names used in this article are fictitious]
A lawyers standards committee has found that a lawyer’s use of another lawyer’s Facebook post to promote the interest of his client did not breach any rules, even though the post was personal.
The lawyer, Bagnet, acted for a client in relation to a Care of Children Act 2004 dispute. The mother had instructed Bagnet, in relation to the appointment of Longford, as lawyer for the children as she was concerned about Longford’s friendship with Ms Bayham. Ms Bayham, who was also a lawyer, was the new partner of the father of the children involved in the dispute.
Bagnet wrote to Longford: “Here the issue is whether your close personal relationship with [Ms Bayham] creates a conflict or an appearance of a conflict of interest in terms of your representing [the children].”
Bagnet said it was “clear” there was a close personal relationship. He attached a selection of Longford’s Facebook posts, which he said, “makes it clear that your friendship is ongoing and that [Ms Bayham] publicly supports you in the most personal of matters”.
Bagnet further wrote to Longford: “[The mother of the children] asks through me that you please carefully consider your position as the children’s lawyer.”
The letter annexed a copy of a personal Facebook post made by Longford and Ms Bayham’s Facebook comment on that post. Bagnet had accessed the material as a “Facebook friend” of Longford, and provided a copy of his letter, including all annexures, to his client.
In response, Longford filed a memorandum in the Family Court, seeking leave to withdraw as lawyer for the children.
Longford subsequently lodged a complaint about Bagnet’s conduct with the New Zealand Law Society Lawyers Complaints Service.
Longford took issue with the fact that Bagnet had provided a copy of his letter to his client, with the result that his client then had access to Longford’s personal information from her Facebook page.
While the standards committee initially requested the parties to explore mediation, the agreement of both parties could not be obtained.
Having inquired into the complaint, the committee considered the Facebook material was relevant to the matter that Bagnet’s client had engaged him to pursue; the friendship between Longford and Ms Bayham. The committee said that Longford had put her Facebook friendship at issue by outlining some of the details of the same in correspondence to the parents’ respective legal representatives.
Pursuant to sections 4(c) and 4(d) of the Lawyers and Conveyancers Act 2006, and rules 6, 7 and 13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC), the committee considered that Bagnet was required to access and utilise the Facebook material which was lawfully available to him as Longford’s [Facebook] friend.
“Bagnet was required by rule 6 [of the RCCC] to use the material to which he had lawful access, to protect and promote the interests of his client, who was seeking to have [Longford] removed as lawyer for her children for perceived conflict of interest,” the committee said.
The committee also determined that Longford did not have a reasonable expectation of privacy in relation to Ms Bayham’s Facebook interactions with Longford, given that Bagnet was a Facebook friend of Longford.
It was noted by the committee that while Longford’s Facebook profile may have been ‘private’, she had no control over how the material she shared might be utilised by her Facebook friends (including by liking, sharing or re-posting).
The committee also considered it relevant that Bagnet disseminated the Facebook material to two parties only: Longford and his client.
The committee noted that Bagnet had advised he was willing to draft a sincere written apology to Longford, independently of any adverse disciplinary finding against him.
“A suitable apology from [Bagnet] might represent an appropriate conclusion to this matter,” the committee said.
Because Bagnet had not breached any rules, the committee determined to take no further action on the complaint.
For guidance on social media use please refer to the article ‘Lawyers and social media’ in issue 926 of LawTalk, March 2019 page 79.