Regulating Online Social Networking by Advocates: The Law Society of Kenya's Herculian Task

James Mwamu EALS President Facebook
The East Africa Law Society (EALS) President, Mr James Mwamu recently posted the above message on his facebook page, which reads in part: “We have just passed and approved six guidelines (sic) for lawyers throughout the world on the use of social media. These guidelines (sic) are binding on all Bar Associations and Law firms”. This post by Mwamu instantly became the subject of a newspaper article titled: “New Facebook, Twitter rules for learned friends” that has since sparked widespread discussions among members of the Law Society of Kenya (LSK) on the impact of these International Bar Association (IBA) principles (erroneously referred to as “guidelines” by EALS President Mr. Mwamu) on social media use by legal practitioners.
On November 6th 2014, the LSK Secretariat circulated the following notice to its members:

IBA International Principles on Social Media Conduct for the Legal Profession
It has come to the attention of the Council of the Law Society that there are increasing instances where members committed acts amounting to professional misconduct through various postings in the social media including Facebook, Twitter and Whatsapp.
The Council has revisited this issue and found it useful to issue the attached guidance of the International Bar Association (IBA) International Principles on Social Media Conduct for the Legal Profession adopted in adopted on 24th May 2014. The Law Society is a corporate member of the IBA and therefore upholds the guidance and principles as may be issued from time to time.
With immediate effect, it is a professional misconduct for a member to use any social media contrary to the guidance. The Council in the meantime is considering the postings by members in various social media with a view of commencing proceedings for professional misconduct.

Before we examine these IBA Principles, it is important to consider the genesis of this issue. In February 2012, The IBA Legal Projects Team published its first comprehensive report examining the role of online social networking within the legal profession and legal practice. The report, titled The Impact of Online Social Networking on the Legal Profession and Practice, is based on a worldwide survey that assessed inter alia whether there is a need to set principles regarding usage of social media by legal actors. The EALS (representing Kenya, Uganda, Tanzania, Rwanda and Burundi) was among the 60 member bar associations from 47 legal jurisdictions that participated in the survey.
Here are the highlights of the report, represented graphically:-
The IBA International Principles on Social Media Conduct for the Legal Profession were developed by the IBA following the publication of the above report. Essentially, the IBA came up with a set of six guidance principles to promote and encourage professionally responsible social media usage within the legal profession.
The headings of the six guidance principles are listed as:
1. Independence
2. Integrity
3. Responsibility
4. Confidentiality
5. Maintaining public confidence
6. Policy
These IBA guidance principles are available here.
In the specific case of twitter, the top ten Kenyan attorneys currently enjoy a cumulative following of over 1,321,000 followers worldwide including Kenyans on Twitter (#KOT).
These top #KOT attorneys include:-
@WMutunga – 344,000 followers and counting
@MarthaKarua – 308,000 followers and counting
@skmusyoka – 140,000 followers and counting
@kipmurkomen – 107,000 followers and counting
@AGMuigai – 104,000 followers and counting
@GitobuImanyara – 75,000 followers and counting
@AbabuNamwamba – 58,000 followers and counting
@BettyMurungi – 54,000 followers and counting
@ahmednasirlaw – 52,000 followers and counting
@makaumutua – 52,000 followers and counting

(NB: Prof Mutua is not a member of LSK but is admitted at the New York State Bar)
@junior_mutula – 27,000 followers and counting
It is interesting to note that law firms in Kenya are yet to embrace social media as a tool to connect and interact with clients, potential clients and the general public. This fact is not at all surprising since most Kenyan law firms are barely able to launch and operate decent-looking websites. A notable exception is the firm of Coulson Harney Advocates that have managed to run a fairly well-maintained website with regular social media updates via their twitter account: @CoulsonHarney.
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LSK through its official twitter account @lawsocietykenya appears to be leading by example in promoting responsible social media usage among its members. LSK has recently changed the privacy settings on its twitter page by making LSK’s tweets and profile “protected”. This means that LSK can control which twitter users have access to its tweets and complete profile including lists of followers and friends.
This blogger submits that there are enough recent examples of LSK members behaving questionably (if not, badly) on social media, particularly on twitter, to warrant the introduction of clear rules and guidelines regarding the use of online social media among Kenya’s growing legal fraternity.
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Take the case of Douglas M. whose twitter bio on the account @DouglasMango clearly reads “Advocate of the high court of Kenya…” In August 2013, Mango published a series of explicit tweets using the hashtag #KhamatiSex where he accused Kenya’s envoy to Somalia, Ms. Yvonne Khamati (@YvonneKhamati) of having sexual relations with several public figures, among them IEBC CEO James Oswago and politician Musikari Kombo. The full story and the graphic tweets in question can be found here.
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Senior Counsel Ahmednasir Abdullahi is no stranger to controversy on twitter. The former LSK Chairman’s account @ahmednasirlaw has often drawn a great deal of attention because of his public comments about government officials such as Elgeyo Marakwet Senator and Advocate, Kipchumba Murkomen, former Registrar of the Judiciary and Advocate, Gladys Shollei and most recently, Internal Security Cabinet Secretary, Joseph Ole Lenku (reported in the media here). Abdullahi’s no-holds-barred tweets speak for themselves, as reproduced below:
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Finally, let us consider the case of the #okoaLSK hashtag which was spread on twitter by a section of LSK members to protest the planned construction of a Sh1.2 billion Arbitration Centre by LSK. This hashtag was inspired by the #okoaKenya hashtag which is the name of a campaign by a section of law-makers to cause a referendum vote on amendments to the Constitution.
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In contrast to #okoakenya, the #okoaLSK hashtag caught most of the 700,000 odd Kenyans on social media by surprise since they had no idea about or interest in the controversies surrounding the Arbitration Centre.
As advocates await LSK’s invitation to give comments on suitable social media rules for lawyers, the Marketing and Advertising Rules which took effect earlier this year contain several far-reaching provisions that may be construed to regulate Advocates’ conduct on social media platforms.

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