Most of you would have heard of this new app called ‘Clubhouse’ that went viral this month. Clubhouse is an audio-chat app launched in April 2020 by Silicone Valley software developers Paul Davison and Rohan Seth.
The app is still in its beta phase but has received a lot of flak for upholding elitism. For one, joining the club is ‘by invitation-only’ (a very hyped concept since invites exceed number of people in this world); and two, it is exclusively available to iPhone users at the present time.
Having attended about 20 “rooms” so far, I think there’s a lot of plus points to the app. However, along with the pros, there are also cons. With the recent Malaysiakini judgment, I have my doubts as to whether Clubhouse (being a space which encourages “authentic conversation and expression”) is here for the long run, considering recent judicial conservatism on Malaysian “freedom of expression”.
Hypothetical Concerns
1. Anti-advertisement rules
Lawyers have strict rules on publicity. Under the Legal Profession (Publicity) Rules 2001, lawyers are prohibited from publicizing their practice in certain ways – including (a) claiming that he is a specialist in an area of practice; or (b) stating anything that would be construed as offering any inducement to any person as a means of obtaining professional business for himself or his firm (r 5(b)), etc.
Generally, only ‘approved information’ can be publicized – such as (a) name of firm (b) area of practice (c) academic/professional qualification of the lawyer; or (b) name of clients and information on completed cases subject to the prior written consent of that client (r 2). The anti-advertisement rules apply to publicity through electronic media i.e. internet, radio, Facebook, Clubhouse (r 21) and makes a lawyer liable also for the publicity conducted by his/her employees or any other person for that matter (r 24).
While it is not news that lawyers publicize their practices both online and offline, Clubhouse, being a verbal-only social media platform offers little way of evidencing “unlawful publicity”. As it stands, the beta app does not allow users to screen record, for obvious privacy reasons. Much like snapchat images, anything that was said and done on Clubhouse will disappear (although their Community Guidelines did say that “Clubhouse temporarily records all speakers’ audio for supporting incident investigations”). Thus, one has a fine line to tread – between publicizing ‘approved information’ and unauthorized advertising per se.
2. Client confidentiality
As with point 1 above, while sharing (or even bragging) one’s portfolio is allowed under the publicity rules, over-sharing may lead to breach of client confidentiality.
Rule 35 of the Legal Profession (Practice and Etiquette) Rules 1978 states :
(a) An advocate and solicitor shall refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by the client.
(b) An advocate and solicitor shall preserve his client’s confidence and this duty outlasts his employment.
3. Holding Out
As with any other social media platforms, there will inevitably be ‘non-practising lawyers’ like myself (who for whatever reason does not hold a valid license to practise i.e. because they have left the profession, suspended from practice or has yet been called to the Bar) or even people who are not in the legal industry at all, who are on Clubhouse. When this group of ‘non-practising lawyers’ offers ‘friendly legal advice’, they ought to make clear to the public with regards their non-practising status as there is risk for misinformation. Failing to do so, the individual may be considered ‘holding out’ as an advocate & solicitor, which is against the law.
Under the Legal Profession Act 1976 (“LPA”) , any person who acts or pretends to be a duly qualified advocate and solicitor can be found guilty of an offence liable to a) a fine of RM2500; b) 6 months imprisonment or c) both.
Similarly in the UK, it is a criminal offence for a barrister without a practising certificate to provide legal services which are Reserved Legal Activities under the Legal Services Act 2007. Here, Reserved Legal Activities are listed as :
• the exercise of a right of audience;
• the conduct of litigation;
• reserved instrument activities;
• probate activities;
• notarial activities and
• the administration of oaths.
Thus even if you are/were a lawyer but for whatever reason you do not hold a valid license to practise, you are considered an “unauthorised person” under the LPA. By representing that you have a license (or professional insurance) to offer services, that can be a breach of the LPA. Clubhouse is once again breeding place for such archaic laws.
(See also Fahri Azzat’s article ‘The Non-Practising Advocate & Solicitor‘ where he explains the category of people calling themselves “non-practising advocate & solicitor”, as “you can put just about anything to describe yourself from the perspective of what you are not”.)
Postscript
Not trying to be a party pooper, but Clubhouse with all its attractive features requires correspondingly foolproof regulations. The current community rules puts it on the individual to self-vigilate, with Clubhouse accepting no liability for users interactions. I do hope that we won’t have to pay a hefty premium on its full release as Clubhouse was valued at RM4 billion just 9 months after its launch!
What are your thoughts on the new Clubhouse app? Sembang petang ~