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Mind what you say – or the regulator will

  • Market Insight 9 July 2020 9 July 2020
  • UK & Europe

  • Professional Practices

This article looks at the risks around lawyers' professional and "private" communications, and some recent cases in which the tone and/or content of a lawyer's communications have attracted regulatory sanction.

Mind what you say – or the regulator will

This feels particularly relevant now, given that the way in which lawyers work and interact with clients, colleagues, opponents, and the wider world has changed drastically in the last few months. People are working from home, communication has moved online to an unprecedented degree and the boundaries between professional and private life have further been blurred. Many will be facing challenges in their personal lives which impact upon their working environment, and many will be feeling increased levels of stress, which may impair their judgment. These circumstances, alongside the fact that exchanging messages and sharing opinions online has never been easier, have only increased the risks around the ways in which lawyers communicate and therefore the importance of understanding the approach of the regulator in this area.

The regulatory background

For some time, the regulators of both the bar and the solicitors' profession have been cracking down on aggressive and/or inappropriate communications in both the professional and personal spheres.

A Warning Notice on offensive communications was issued by the SRA in August 2017. This was supplemented in February 2019 with a Topic Guide on the use of social media and offensive communications.

Similarly, in October 2019, the Bar Standards Board published new guidance on social media use by barristers in both their professional and personal capacities, warning against comments designed to "demean or insult" and "getting drawn into heated debates or arguments".

The following month, the SRA published its new Standards and Regulations, together with a number of new and updated guidance notes. The Warning Notice and Topic Guide mentioned above were both updated. The latter states that "regulatory action can be taken if the sender is identifiable as someone we regulate (even if acting in a personal capacity) and the communication would tend to damage public confidence."

There was also guidance on the new Principle 2, "Public trust and confidence", which, where the Principles are in conflict, takes precedence over the duty to act in the best interests of each client (Principle 7). The guidance includes a list of the types of inappropriate communications which have resulted in sanctions imposed by the SDT: referring to women in derogatory terms in communications with a client, offensive social media posts in a private capacity which were hostile towards a particular ethnicity, and offensive and derogatory emails sent to the opponent's solicitor during litigation.

Law firms and solicitors should also be mindful of Principle 6 – the duty to behave in a way that encourages equality, diversity and inclusion. This extends to all forms of communication, internal and external, personal and professional, written and oral, including blog, forum or social media posts. The SRA issued guidance on its approach to equality, diversity and inclusion in July 2019, which included a warning against "expressing extreme personal, moral or political opinions on social media platforms." Before that, the SRA had stated in its Enforcement Strategy that it would treat the right to "non-discriminatory treatment as at the higher end of seriousness".  

In the current crisis, the SRA has stated that it will focus on serious misconduct.  We can therefore expect it to continue to enforce against those whose communications are discriminatory or otherwise harmful, and which diminish public trust and confidence in the profession. 

Professional and workplace communications

Inappropriate inter partes communications: In its November 2018 report Balancing duties in litigation, which covered similar ground to its 2015 report Walking the Line, the SRA emphasised that solicitors are "not 'hired guns' whose only duty is to their client", and warned that the pursuit of excessive, aggressive, or speculative litigation at a client's behest can lead to other duties being neglected.  The report implies that the SRA, like the courts, will not tolerate inter partes correspondence which it considers inappropriate in volume and/or tone (indeed, criticism of parties by the court can attract, and has attracted, the attention of the regulator).  Indeed, the regulator is also likely to be interested in the content of telephone calls and other types of communication between parties.

Offensive comments on internal instant messenger: Internal communications, including instant messaging, have also been subject to the regulator's scrutiny. In 2018, a paralegal was fined £5,000 by the SDT for sending highly offensive, racist and discriminatory messages to a colleague via his employer's instant messaging system. The Tribunal found that this conduct showed a lack of integrity and was conduct that did not maintain the trust the public placed in him and in the provision of legal services. The respondent's culpability was mitigated by a medical condition and the impact of his medication. Nevertheless, due to the harm which had been caused to the respondent's colleague, and to the reputation of the profession, a fine was imposed – which the SDT indicated would have been substantially higher but for the respondent's medical issues.

This judgment also highlights the way in which risk issues can arise in tandem with health issues. The wellbeing of all staff needs to be supported and promoted through active line management, now more than ever with teams working remotely in increased numbers (and for some organisations, now permanently). We considered the risk issues around staff morale and mental health during the pandemic in this article.

The use of instant messaging (on internal and third party platforms) is increasing now that colleagues can no longer pop along the corridor for a chat, and it can be easy for employees to assume that messages exchanged on such systems are not permanent. This is, of course, not the case: even where messages automatically expire at the end of the working day, anyone can take a screenshot and retain and circulate messages sent in this way. On third party platforms, message threads may easily be forwarded to other non-work related contacts and/or messages backed up to cloud storage over which the firm has no access or control.

Speaking out loud: Solicitors' oral communications must also comply with the Principles. In a Regulatory Settlement Agreement published in April 2020, a solicitor accepted that, during an informal conversation with colleagues in a courtroom, when the Court was not sitting and the courtroom was otherwise empty, he made "an inappropriate and offensive remark during an attempt to express a compliment in relation to a firm of solicitors. The compliment was meant innocently and genuinely but was misguided." The remark, which has not been published, made reference to the ethnicity of members of the firm in question. The solicitor admitted failing to act with integrity, failing to behave in a way which maintains public trust in him and the provision of legal services, and failure to encourage equality of opportunity and respect for diversity. In mitigation, it was said that he recognised that his conduct was unacceptable, had attended a course on Equality and Diversity of his own volition and now had a "better understanding of words and conduct which may be inappropriate". He also said that this was an "isolated and atypical lapse of behaviour which would not be repeated in future". He accepted that he should receive a fine of £2,000 and pay costs.

"Private" communications

The SRA has also become increasingly concerned with solicitors' private lives. The rise of social media has put a spotlight on what solicitors say outside work, and in recent years the SRA has picked up on tweets and other publicly-available posts.

Discriminatory comments on social media: In 2017, a criminal defence solicitor was fined £25,000 and suspended for 12 months for making anti-Semitic comments on Facebook. He was criticised by the SDT for showing a "worrying lack of self-discipline and common sense". In 2018, another solicitor, who had repeatedly expressed hostility towards Islam, Catholicism and Judaism in "offensive and wholly inappropriate" tweets, representing "persistent and protracted" conduct, was suspended for 18 months and ordered to pay costs of £11,000.

Disclosing details of work on social media: In August 2019, a sole practitioner who had added inappropriate comments and emojis to social media posts about his work was rebuked and fined £1,500 by the SRA. Between November 2015 and September 2016, the solicitor had posted on social media on over 130 occasions when attending a police station, prison or court, often stating where he was, and he had twice disclosed specific, confidential information about a client matter. In the regulatory settlement agreement, the solicitor admitted posting "inappropriate and puerile comments" about his clients' matters, "some of which trivialised serious criminal charges", thereby breaching Principle 6 of the 2011 Principles.

Offensive comments about an individual on a private Facebook group: At the end of October 2019, a barrister who had posted "offensive and disparaging" comments about a member of the public in a private Facebook group was suspended for ten months by an independent disciplinary tribunal. The tribunal said he had acted in a way which was likely to "diminish the trust and confidence the public places in him or in the profession".

The offence of malicious communication: In June 2020, a junior solicitor who had been convicted for the offence of malicious communication in relation to messages sent to a woman on social media was fined £10,000 and ordered to pay costs by the SDT. The particulars of the offence were that he had "persistently made use of a public electronic communications network for the purpose of causing annoyance, inconvenience and needless anxiety to another". Pursuant to an Agreed Outcome, the respondent accepted that he had breached Principles 2 and 6 of the 2011 Principles.

Conclusion

In view of these recent cases and our experience in practice, it is clear that communicating in a way which is aggressive or discriminatory is likely to attract the criticism of the court and/or the attention of the regulator. This extends to comments made in private as well as professional contexts, both spoken and in writing – and even where the effect was unintentional. The challenges and stresses caused by ongoing restrictions in our daily lives, the changes to how and where we do business, and the rise in media and social media focus on various movements for change, all have the potential to increase risks in conversations taking place in person and online.

Now more than ever, solicitors should ensure that they consider their words carefully and sensitively, in all contexts. Firms should ensure they have adequate measures in place to educate and support their lawyers and staff in this area (including those on furlough). Accordingly, it is important that individuals are reminded of firm culture and their professional and regulatory obligations, and the steps to be taken to mitigate the risks posed: through training, risk bulletins and/or updated protocols on remote working and social media, and through managers leading by example and continuing to stay in touch with staff to ensure they remain connected with colleagues and the firm's support systems. Failure to do so could result in potential censure from the regulator and unwanted publicity and reputational damage for the firm.

End

Additional authors:

Michael Clark, Clare Cotterill

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