Issued on 24 August 2017
While this document does not form part of the SRA Handbook, we will have regard to it when exercising our regulatory functions.
Who is this warning notice relevant to?
This guidance is relevant to you if:
- you are a solicitor, a REL or an RFL and your communications fall short of the standards expected of the profession, whether in the course of private practice, in-house practice, or outside practice
- you work in an SRA-regulated practice as a manager, consultant, employee or trainee, whether as a lawyer or an unqualified person, in relation to communications made by you during the course of business
- you are an SRA-regulated law firm or the COLP in a SRA-regulated law firm
We have experienced a significant increase in the number of complaints we receive concerning inappropriate communications, specifically (but not limited to) in relation to emails and the use of social media, both inside and outside of practice.
Examples of the type of behaviour we have investigated, (and which we subsequently referred to the SDT), include:
- making offensive or pejorative comments relating to another person’s race, sexual orientation or religion
- referring to women in derogatory terms and making sexually explicit comments
- making comments which harass or victimise the recipient
- using language intended to shock or threaten
- making offensive or abusive comments to another firm about that firm or its client, or to individuals who are unrepresented
The warning below focuses on social media (which in this context includes emails, texts and social media networks), but it is also relevant to communication by telephone or letter.
The SRA Principles and mandatory Outcomes
You must comply with the Principles and in particular:
- Uphold the rule of law and the proper administration of justice - Principle 1
- Act with integrity - Principle 2
- Behave in a way that maintains the trust the public places in you and in the provision of legal services - Principle 6
- Run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity - Principle 9
You must also have regard to the relevant Outcomes under the SRA Code of Conduct 2011, but in particular those referred to below.
Communications in the course of practice
Whether you are a manager, a consultant or an employee in a law firm, or you practise in-house, you must behave in a way that demonstrates integrity and maintains the trust the public places in you and in the provision of legal services.
In the context of letters, emails, texts or social media, this means ensuring that the communications you send to others or post online do not contain statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress.
In particular, you must achieve the following outcomes:
- O(2.1) – you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings, and
- O(2.2) – you provide services to clients in a way which respects diversity
We treat any communications which are offensive seriously, whether on the grounds of any of the ‘protected characteristics’ under the Equality Act 2010 or otherwise. The protected characteristics are age, race, disability, religion or belief, pregnancy or maternity, sex or sexual orientation, gender reassignment and marriage or civil partnership. Depending on the circumstances, you may be at risk under all of the Principles referred to above.
You should also note that where a court or tribunal makes a finding that you have committed an unlawful act of discrimination in a communication sent or posted by you, we will treat that as prima facie evidence of misconduct which may give rise to disciplinary proceedings.
Bear in mind that sending an offensive, threatening or harassing communication may also amount to a criminal offence (eg under section 1 of the Malicious Communications Act 1988, section 127 of the Communications Act 2003 or the Protection from Harassment Act 1997). Depending on the circumstances, committing any of these offences or failing to comply with the Equality Act 2010, could leave you at risk under Principle 1.
The Principles and outcomes referred to above apply not only when communicating with third parties outside the firm, but also to emails addressed to colleagues within the firm. You are expected to act at all times with integrity and the fact that you intended such communications to be private will not excuse your conduct.
Bear in mind also that once sent, you have no control over what happens to your email. Moreover, by using the firm’s email system, you run the risk that others may be able to access those emails.
Likewise, you cannot justify your conduct on the grounds that you did not intend to cause offence, or that the recipient(s) of your email was not offended. One of our key concerns as a regulator is to protect public confidence in the integrity and high standards of the profession; you should therefore bear in mind that you will be at risk of disciplinary action if you send an email which has the potential of causing offence and/or undermining public trust in the profession and that email subsequently comes to light.
Entering into an exchange with others which you perceive or intend to be humorous can pose a particular risk, especially when your humour is at the expense of others; what may seem to be light-hearted banter to you may be offensive to a third party. You should ensure that you do not inadvertently cross the line and become offensive in any of the ways referred to above.
Communications with clients
Most firms these days communicate with their clients by email or text rather than by letter. However, there are inherent risks in this. Such forms of communication by their nature are more ‘instant’ and tend to be less formal than letters.
This can lead to the blurring of the line between client and friend and the informality, together with the expectation of a quick reply, makes it easy to overlook the need to consider carefully what you are saying.
Whilst being on friendly terms with your client or using informal language is not of course a problem in itself, you must be careful to ensure that your communications remain professional, both in the tone and content, at all times. This is particularly so where it is foreseeable that the communication is likely to be disclosed to a wider audience at some point.
If a client makes derogatory, discriminatory or inappropriate references to others in their communications to you, you should not participate or endorse those comments. Nor should you pass the offensive comments on if it is not necessary to do so. Where your client’s comments are potentially in breach of the law, you should draw this to your client’s attention.
Communications with other law firms and litigants in person
It is not uncommon for emails between law firms in relation to a client’s matter to be robust, particularly in litigation. However, you should ensure such communications do not cross the line by using inflammatory language or being gratuitously offensive, either to the other side or about their client.
Your role is to act in the client’s best interests; antagonising the other side is unlikely to achieve this. You should remain objective and not allow the matter to become personal, regardless of the provocation or your client’s instructions. You are not your client’s ‘hired gun’ and you may be at risk under Principle 3 if you allow your independence to be compromised by being drawn into using offensive language or making offensive comments in order to meet your client’s expectations.
It is equally important to remain professional when dealing with an individual who is representing him or herself, or has appointed a McKenzie Friend. In a recent decision, the SDT fined a solicitor for his heated and abusive exchange of emails with a litigant in person, calling this ‘completely unacceptable’. The SDT said it was the solicitor’s responsibility to maintain his professionalism regardless of what that person may have done.
Managers and supervisors
You will be at risk under the Principles referred to above if you are a sole practitioner or a manager of the firm and you become aware of such emails, but do not take appropriate steps to stop the behaviour and deal with the sender(s) (for example, in accordance with your disciplinary policy).
This also applies if you are not a manager, but you are responsible for supervising a colleague’s work and do not take steps to stop the behaviour.
Bear in mind also that if the sender’s comments amount to serious misconduct, you have an obligation (as indeed does anyone in your firm) to report the individual(s) to us under O(10.4) of the Code. To do this, please see How to report.
Conduct outside practice
Solicitors, RELs and RFLs
If you are a solicitor, a REL or an RFL, Principles 1 (administration of justice), 2 (integrity) and 6 (public trust) continue to apply to you outside your practice, whether in some other business capacity or in your personal life. It is in this sphere – namely outside of practice – that we are currently receiving the majority of complaints.
The risk referred to above – namely that social media by its nature tends to encourage instant communication without the necessary forethought – tends to be greater when you are outside a work context. You must at all times be aware of the content you are posting and the need for professionalism.
This is especially true if you are participating in online discussion (whether this be on Facebook, Twitter, other social media, forums, blogs, etc) and you have identified yourself as, or are known to be, a solicitor. You should bear in mind the possibility that users will re-share the content you have posted on their own social network, potentially leading to rapid sharing with a huge number of users. Similarly, you cannot rely on your own privacy settings to prevent the posting from being passed on by others.
Even if you do not identify yourself as a solicitor, anonymity is not guaranteed; material which you post under a pseudonym may still be traced back to you or you may be identified as a solicitor if you include a photograph of yourself.
You should also consider carefully before retweeting an offensive comment. Unless you refute the content, you will be at risk of being seen as implicitly endorsing it. If it comes to your attention that a third party has accessed your computer and posted an inappropriate comment in your name on a social media network, you should take immediate steps to go online to refute the comment. It is advisable in any event to regularly audit your site to remove any material which makes you uncomfortable.
Trainees and other managers or employees
If you do not fall into the category above, the Principles do not apply to you outside your role in an SRA-regulated firm.
However, that is not to say that there might not be serious consequences should you get it wrong (eg significant embarrassment and damage to your reputation should your comments end up in the public domain, as well as the risk of internal disciplinary proceedings).
In addition, if you are a trainee solicitor, your conduct may in some circumstances have an impact on your entry into the profession (for example, where you have made discriminatory comments). In order to be admitted, we will assess your character and suitability and in doing so, will have regard to the SRA Suitability Test.
Your systems and procedures
You should have regard to the following Outcomes if you are the COLP for your firm, or you are a sole practitioner, manager or the head of an in-house legal department:
- O(7.2) - you have effective systems and controls in place to achieve and comply with all the Principles, rules and outcomes and other requirements of the Handbook, where applicable
- O(7.3) - you identify, monitor and manage risks to compliance with all the Principles, rules and outcomes and other requirements of the Handbook, if applicable to you, and take steps to address issues identified
Where a member of your firm sends or posts an inappropriate or offensive communication, it not only puts you at risk under the Principles above, it also has the potential of causing significant damage to your firm, both in terms of reputation and financially; for example, if clients react by withdrawing their business or are deterred from instructing your firm. In some circumstances, you could also be liable for your employee’s actions (eg if the communication amounts to victimising or harassing a third party).
To achieve O(7.3), you should assess the potential risks to your firm in light of the above, taking into account the nature and size of your firm to determine whether you need to put in place a social media policy or some other system or controls. It is likely to be easier to take disciplinary action against a staff member if you have a social media policy in place dealing with its improper use.
To be effective, you should ensure that members of your firm are conversant with any policy or system you put in place.
Remember: if a complaint is made against an individual in your firm, you may be asked to demonstrate how you have achieved the above Outcomes.
Failure to have proper regard to this warning notice is likely to lead to disciplinary action.
For guidance on any of the above conduct matters, contact the Professional Ethics Guidance Team.
For advice on creating a social media policy for your firm, see the Law Society’s practice note.
The Crown Prosecution Service has issued guidance on hate crime, which can include offensive communications.