Franks on engaging social media

Stephen Franks has written a LONG (but very considered) piece on why not only should lawyers not be afraid from engaging with social media, but arguably they are ethically obliged to, where using effective channels to get a message out there is in the interest of a client.
It’s a bit of a read, but for anyone interested in the media, politics and the law, it is an essential read.

A?public voice for clients, and for views of what the law should be, does not shun effective platforms.

We have in the past, do now, and will in the future, write, publish, talk about and promote causes and interests in any medium that seems to us likely to be effective. Of course that includes social media. I have my own blog. I comment on the blog posts of others. Frequently the participation is on issues where I or the firm have a view, and our participation is a pro bono attempt to add expert correction or advice to the public discussion. Sometimes participation promotes the firm. Sometimes it is expressly to advance a client?s cause.

Like most people, we are probably more effective and more energetic on issues where our views coincide with those of the client. With their approval we?ll use as many channels as is practicable to ensure that the client position is communicated to the people who should have the information. We are public advocates. We do not eschew any lawful form of communication.

He then turns to the irony of the NBR reporting asking about using a media resource that calls on accountability and causes some offence. ? ?

Negative information ? MSM hypocrisy

You ask about a ?blog practice of smearing individuals and organisations for commercial consideration?. I set ?aside for the moment the irony of that characterisation from an employee of a business which (in my opinion quite properly) survives commercially by beating ?its competitors to publicise for private profit, accounts of scandal, failure, embarrassment, and other dismaying circumstances for individual and organisations. If you are doing your job properly you will frequently be exposing information that the subjects would dearly prefer to remain secret. Your ethics and morality will constantly be attacked (wrongly) by embarrassed or angry targets. Your stories will be incomplete, and sometimes one-sided, however hard you might try to avoid that. We share a common public interest in your prompt publication despite the risks of unfairness even though from the target?s perspective you have no ?interest other than to sell your services, and your publication. Many targets do not see that as morally legitimate.

The key thing is nothing to do whether the subject of the commentary is ‘offended’ – that’s the problem that has lead to New Zealand that protects pedophiles over the likes of the Sensible Sentencing Trust from naming them.

Applicable principles

The law recognises the difficult boundary between, ?on the one hand evidence as to character and modus operandi and prior conduct that is material to evaluation of current claims and explanations and charges, and on the other, such evidence that is designed simply to raise prejudice against an individual. We believe we should draw a similar distinction in our public discourse. Informative contribution to debate, including about the character, purposes and conduct of individuals can be ?relevant ?to an issue. On the other side is abuse and denigration for its own sake, for the base pleasure chooks presumably share in pecking off the feathers of a target hen.

The targets of both legitimate and unfair and unethical criticism and exposure may equally claim that it is ad hominem argument, or vilification. The mere claim does not dispose of the question.

Then he reaches the key point which the left have ignored:

In all my time in public affairs I?ve tried to remain courteous to opponents, and even without the lawyers? conduct rules I want our firm to reflect that value. And of course we will not disseminate statements we know to be untrue. But if there are ?facts that should be in the public domain, including about people exercising power, for others to take into account in assessing their true character and motives, ensuring such disclosure would be a legitimate exercise of free speech for us and our clients. ?The vigour and health of our public discourse depends on the likelihood that hypocrisy will be unmasked, and that false claims to trust or respect will be exposed.


– Stephen Franks