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Beware offensive communications - here's why

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Intro: Mena Ruparel, co-author of How to be an ethical solicitor , considers the SRA’s new warning notice and how your ethics as a solicitor should inform your communications.

On 24 August the Solicitors Regulation Authority (SRA) issued a warning notice on the way in which solicitors communicate with other people by email and on social media, both inside and outside of practice.

Social media is regularly used by firms and those who work for law firms in both professional and personal capacities. Due to the informal and fast-paced way in which they work, it’s easy to get carried away with online discussions or comments which can fall foul of the regulator. It can also be easy to forget that solicitors are regulated equally at 23:00 online and 15:00 in the office or at court.

The SRA cites examples of such behaviour as:

  • using language which is intended to shock or threaten, and/or
  • making offensive or abusive comments to another firm or about that firm, its client, or to individuals who are unrepresented.

Importantly, these behaviours are not regulated by specific rules but they do require solicitors to consider the Principles:

  • Principle 1 - to uphold the rule of law and the proper administration of justice.
  • Principle 2 - a solicitor is required to act with integrity
  • Principle 6 - to behave in such a way that you maintain the trust that the public places in the provision of legal services

In August 2017 the Solicitors Disciplinary Tribunal (SDT) handled a case involving a solicitor who publically communicated anti-Semitic and/or offensive posts from his personal Facebook account. (The solicitor had been admitted for 10 years before the incidents occurred, qualifying under the 2005 rules-based regulatory system.)

Following a complaint, he was warned by the SRA that a report would be made. He did not withdraw the comment or apologise, instead replying, ‘Don’t read my comments if you don’t like them.’

The following year he wrote further offensive posts and the SRA received further complaints. To anyone reading them, it was obvious the posts were by made by a senior solicitor. They also included the name of the firm. When the SRA wrote again to the solicitor, he agreed the posts were offensive and apologised for them. He did not agree that the posts were anti-Semitic.

He complained that the comments were made in his personal capacity and not in connection with his role as a solicitor. However, Principles 2 and 6 apply to a solicitor’s behaviour whether in or out of practice.

The matter was referred to the SDT and the solicitor gave evidence that it had not crossed his mind that, as a solicitor, he should not be writing those comments. He had not thought whether any comments he made would be publicly available or the implications of that. He also believed he had the right to freedom of speech, even if some people were offended by his views. The Tribunal stated that ‘freedom of speech is not an unqualified right’.

As professionals, solicitors are held to a higher standard than others and he should have taken that into account at the time. The Tribunal did not seek to restrict anyone’s right to free speech but the solicitor had stepped over the line by advocating violence and by doing so had acted without integrity.

‘For the Respondent, a solicitor, to communicate deeply unattractive views publicly (whatever his private thoughts) demonstrated a clear lack of integrity. It was incumbent to keep his extreme views to himself rather than express them in a public forum’.

The solicitor was fined £25,000 and suspended from practising for 12 months. He was also ordered to pay costs of £9,595.

The SRA’s warning notice followed the release of this decision by the SDT and clarifies the views of the SRA about these types of communications as well as internal email.

Ethical thinking can be instilled by using examples such as the case above - ignore the issue of ethics training at your peril!

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