Solicitors, those employed by solicitors, and regulated law firms have been warned to watch their language. Whilst the SRA has issued a warning notice to the legal profession, it is highly likely that other regulators will adopt broadly similar principles.
The SRA issued its warning because it was concerned at the number of complaints it was receiving concerning inappropriate communications contained in emails and social media from both inside and outside practice. In some respects this is surprising – I was taught years ago to be very careful about the content of letters to third parties and if I was concerned to sleep on them. Email communications are no different, but perhaps the speed with which thoughtless communications can be made has changed. Perhaps also we unrealistically draw a distinction between what we do in practice and outside practice, thinking that the latter has no bearing on the former.
This is not so.
The SRA has investigated and has referred to the Disciplinary Tribunal instances where electronic communications have:
- made offensive comments about another person’s race, sexual orientation or religion;
- referred to women in derogatory terms and have made sexually explicit comments;
- used language which shocks or threatens and is intended to do so;
- made offensive or abusive comments to another firm about that firm or its clients.
The SRA Warning reminds legal professionals that whilst it does not form part of the SRA Principles, it will nonetheless be considered when determining whether any particular communications warrant referral to the Disciplinary Tribunal. Requirements to act with integrity, and to behave in a way that maintains the trust the public places in solicitors and the provision of legal services will almost certainly be engaged if offensive and inappropriate communications are sent out. It applies to simple emails, Tweets, LinkedIn and Facebook posts.
It applies to inter-office emails, and it will not be possible to justify conduct on the grounds that there was no intention to cause offence or that the communications were not intended to go beyond particular recipients. Lawyers must bear in mind that once sent, there is no control over what happens to the communication and that there is a clear and obvious risk that anyone can access them. Particular care has to be taken with what might seem light-hearted banter between work colleagues. It can be too easy to cross the line and create something that is offensive.
Of course, it is not always possible to control or anticipate what third parties might say to us. The guidance warns us not to endorse offensive comments made by clients or third parties and not pass them on. If an unlawful communication is received, the best advice must be to make sure the sender is firmly told that such conduct is not acceptable. Particular care needs to be taken not to be provoked. Lawyers must bear in mind their obligations to the regulator, as well as the potential for serious breaches to constitute a criminal offence.
In very many ways the warning sets out principles that are not new. They have always applied to letters and faxes. It is simply the electronic means of sending them that have changed. It is the ability to do so quickly at a screen with a keyboard with nobody apart from you to think carefully whether the send button should be pressed. Once done, there is no going back.