As you return to your desks following what was, hopefully, an enjoyable summer, you may be catching up on news items. One noteworthy development that may have slipped under your radar is the news that the Solicitors Regulation Authority (SRA) has issued a warning notice on offensive communications.
The SRA has expressed concern that it has experienced a significant increase in the number of complaints it receives regarding inappropriate communications, specifically in relation to emails and the use of social media, both inside and outside practice. It claims to have investigated the following types of behaviour:
- Offensive or pejorative comments relating to another person’s race, sexual orientation or religion.
- References to women made in derogatory terms and the use of sexually explicit comments.
- Comments which harass or victimise the recipient.
- Use of language which is intended to shock or threaten.
- Offensive or abusive comments to another firm about that firm or its client, or to individuals who are unrepresented.
SRA principles and mandatory outcomes
As such, it has issued guidance to those who are regulated by the SRA. Although the guidance does not form part of the SRA Handbook, it will be taken into account when the SRA exercises its regulatory functions.
At the outset, the guidance reiterates the necessity of complying with the SRA Principles, in particular:
- Upholding the rule of law and the proper administration of justice (Principle 1).
- Acting with integrity (Principle 2).
- Behaving in a way that maintains the trust the public places in you and in the provision of legal services (Principle 6).
- Running your business or carrying out your role in the business in a way that encourages equality of opportunity and respect for diversity (Principle 9).
Communications in the course of practice
As would be expected, the SRA instructs managers, consultants and employees in law firms, and in-house practitioners, to behave with integrity and maintain public trust. In the context of letters, emails, texts or social media, it states simply that you must ensure that:
“… the communications you send to others or post online to not contain statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threating, causing the recipient alarm and distress.”
In particular, it stresses that you must not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings, and that you must provide services to clients in a way which respects diversity. Failure to do so could give rise to disciplinary proceedings. Further still, sending offensive, threatening or harassing communications may amount to a criminal offence.
Guidance is also offered on inter-office emails, communications with clients, communications with other law firms and litigants in person, and managers and supervisors. However, what is perhaps most interesting is the inclusion of a section on conduct outside practice.
Conduct outside practice
The SRA states that, if you are a solicitor, a registered European lawyer (REL) or a registered foreign lawyer (RFL), Principles 1 (administration of justice), 2 (integrity) and 6 (public trust) continue to apply to you outside your practice, “whether in some business capacity or in your personal life”. Apparently, the majority of complaints received by the SRA concerns conduct occurring outside of practice.
In stressing that you should at all times be aware of the content you are posting and the need for professionalism, the SRA reminds that:
- Users may re-share content you have posted on their own social network, potentially leading to rapid sharing.
- You cannot rely on your own privacy settings.
- Anonymity is not guaranteed, even if you do not identify yourself as a solicitor.
- Unless you refute an offensive comment that you might choose to share, there is a risk that you will be seen as endorsing a viewpoint (even if this is not your intention).
- For trainees, even though the Principles do not yet apply, there could be serious consequences, including damage to your professional reputation and the risk of internal disciplinary proceedings.
Finally, firms and so on are advised on their systems and procedures.
The reality of being a member of the legal profession is that words and actions carry a particular weight. It is worth bearing in mind the SRA’s guidance so as to avoid any unintended disciplinary consequences.