By Susan Humble
It seems legal regulators take a particularly dim view of online discretions, compared with other regulators, says Susan Humble
Social media has changed the way we communicate. It’s a cheap and quick way to engage with clients and potential clients.
The gratification of ‘likes’ and ‘retweets’ can also be addictive. Horace famously said: “Lawyers are men who hire out their words and their anger”.
How times have changed. Women can now be lawyers; and our words – in 280 characters, can be instantly distributed globally. It’s quite a responsibility, as tweets are powerful marketing tools (as Donald Trump has shown).
My research, dating back to 2010, on social media misconduct by lawyers revealed nothing until 2016. A solicitor who posted “unprofessional and offensive” tweets concerning his success in defeating cases brought on behalf of children with special educational needs resulted in a regulatory settlement agreement with the Solicitors Regulation Authority (SRA), a rebuke and a £600 costs bill.
By August 2017, the Solicitors Disciplinary Tribunal (SDT) had suspended a solicitor for a year and fined him £25,000 for posting anti-Semitic tweets. Informed by that decision, the SRA quickly issued a warning notice on offensive communications (updated in November 2019), which highlights:
• Offensive or pejorative comments relating to race, sexual orientation, or religion.
• Reference to women in derogatory terms and making sexually explicit comments.
• 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.
In 2018, the SDT suspended a solicitor for 18 months for “lack of integrity in such a public, offensive and wholly unacceptable way” by making various tweets about Islam, Judaism, Catholicism and a drag artist (it wasn’t alleged that she lacked diversity in her opinions…).
A year later, the inappropriate tweeting by a criminal solicitor of his daily work activities was not only a breach of confidentiality but aggravated by sad face and tear emojis after the words “Sexual Assault”. The SRA accepted that there was no lack of integrity and imposed a rebuke and a £1,500 fine.
There are no published 2020 cases from either the SRA, the SDT or the bar. This may be caused by covid-related delays in processing cases or an indication that warning notices are having an impact on behaviour. Time will tell.
What about other regulators? In 2014, a social worker was sanctioned by the Health and Care Professions Council (HCPC) with a 12-month conditions of practice order after posting potentially identifying comments on Facebook about a child protection case.
The Medical Practitioners Tribunal Service (MPTS) agreed recently that conditions should continue to be imposed on a doctor for a further 12 months, for (among other things), sending an email containing “inappropriate and offensive” comments to a colleague.
A care home nurse lost her job for attending an anti-lockdown rally after posting comments on social media suggesting covid-19 is a hoax. In 2019, a vet was reprimanded and warned for dishonesty in her online offerings and for failing to get permission to share photos on social media (vets regularly use pictures of their work as testimonials).
There is a disparity in sanctions across regulators, with legal regulators appearing to take the dimmest view. This may be because words are our business, and we’re expected to use them carefully and to be measured.
Firms should encourage their lawyers’ use of social media for networking, building an online brand and getting to know clients better. It can be an important tool for generating the public’s respect and confidence (the public being our target market).
Firms should have a social media policy in place; and individuals must take care to avoid breaches of confidentiality. Content must be accurate, straightforward and not misleading; and specific legal advice should not be given.
Perhaps the hardest rule for those of us argumentative types: don’t get drawn into heated debate. Step away from the trolls. Sometimes, to paraphrase Ronan Keating, we say it best online when we say nothing at all.
Susan Humble is a senior partner at Susan Humble at RIAA Barker Gillette riaabarkergillette.com She is former CEO of the Solicitors Disciplinary Tribunal