SRA issues “banter” warning in bid to curb offensive online comments by solicitors

Social media: risks for lawyers

Solicitors have been warned about what they say in emails and on social media in both their professional and personal lives, in the wake of an increase in reports about offensive and inappropriate posts.

Just last week, we reported on solicitor Majid Mahmood, who was sanctioned for “violent” anti-Semitic and anti-Zionist comments he made on Facebook.

In a warning notice published today, the Solicitors Regulation Authority (SRA) said online comments posted in a personal capacity which might be deemed offensive or inappropriate “could be classed as misconduct if the poster can be identified as a solicitor” – as was the case with Mr Mahmood.

“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.”

It also told solicitors to be careful before retweeting an offensive comment: “Unless you refute the content, you will be at risk of being seen as implicitly endorsing it.”

For trainees and non-solicitor staff, the SRA Principles do not apply outside their 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.”

The notice said communications solicitors send to others or post online in the course of their practice must not contain “statements which are derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress”.

Solicitors could not justify their conduct on the grounds that they did not intend to cause offence, or that the recipient was not offended, the SRA said.

“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.”

Further, 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”.

The regulator said: “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.”

The notice cautioned that solicitors are not their clients’ “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”.

Managers and supervisors were also at risk of regulatory action if they become aware of offensive communications, but do not take appropriate steps to stop the behaviour and deal with the sender.

SRA chief executive Paul Philip said: “We expect solicitors to act at all times with integrity, including on social media and when commenting in what may seem to be a personal capacity. Public confidence in the profession is undermined by offensive or inappropriate communication and the misuse of social media can be a real problem.

“But this is also about communication within an office or to clients. Solicitors cannot justify their conduct by saying that the communication was private, or they did not intend to cause offence, or that recipients were not offended.

“There is a risk that if you send an email which has the potential to cause offence and that email subsequently comes to light, we might take action.”

The warning notice reminds solicitors not only of the need to uphold the rule of law and proper administration of justice, and to act with integrity, but also to act in a way that maintains the trust the public places in the profession.

In June, the senior partner of a south London law firm being fined for unprofessional and “completely unacceptable” correspondence with a litigant in person.

Then there was the solicitor who caused an uproar last year when he sent out a series of tweets appearing to gloat over defeating cases brought by parents of children with special educational needs and disability. He was rebuked by the SRA.

Also last year, a solicitor who verbally abused a potential client and sent a “threatening” e-mail to another practitioner was rebuked and fined £750.

In late 2015, three partners at a firm were fined a total of £14,000 after exchanging offensive emails about a colleague.

Earlier that year, a solilcitor was reprimanded for calling his opponent in litigation, among other things, a “complete plonker”.

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