Death wish: the limits of professional behaviour

It was reported recently that the actor David Tennant had been surprised to learn – in sexual harassment training – that the aubergine emoji had an alternative, more salacious, meaning in text speak.

His slightly tongue-in-cheek attitude was reportedly to imagine that you’re asking about eggplant for dinner and suddenly find yourself in front of a tribunal.

For solicitors and those trying to develop social media policies for firms, awareness of potentially unintended double meanings or particular generational or cultural attitude towards certain words is important.

It is undeniable that language is a constantly developing medium, slang, shortened words, multi-use and popular acronyms and even persistent misunderstanding of terms all contribute to such development and potentially raise the prospect of miscommunication envisaged by David Tennant.

Although, in some ways this is a non-story, it is not at all farfetched to imagine that solicitors can and will be called to account for their comments on social media, even outside of their professional practice.

In light of the controversial, and widely criticised, decision by the Solicitors Disciplinary Tribunal to sanction Mark Lewis for his response to some of the truly horrendous racist abuse to which he was subjected, and the increasingly frequent reports of inappropriate approaches, conversations and comment on social media, it is incumbent on solicitors and firms to understand and manage their social media presence individually and as a whole.

Social media faux pas can rapidly spread around the world and be retweeted to millions in an instant. Offensive comments are only one aspect of social media management, solicitors need to be alive to the risk of breaching confidentiality, data protection and expressing controversial views which may bring the profession into disrepute or be considered to lack integrity.

Course of practice

When considering social media, one does have to start by assessing the extent of the regulator’s jurisdiction. Are your comments made in the course of or wholly outside practice?

If the former, the entire Code of Conduct is relevant and applicable, if the latter, the SRA must fall back on those Principles and parts of the Code of Conduct which apply outside of practice.

Although we can raise the spectre of free speech, the protection that affords is limited and more so when we identify ourselves as solicitors to the world at large.

Being a solicitor is something that we have each chosen to do, and in doing so we have voluntarily subscribed to a system of regulation which expects certain standards from us at all times.

We are expected to use language with care and a certain degree of skill. We are expected to choose our words wisely and understand that they have power and may cause offence. Perhaps unsurprisingly, we are expected to use measured language in all circumstances instead of resorting to name calling and trading insults. 

Mark Lewis’s prosecution was the subject of extensive commentary and led to quite widespread criticism of the SDT and the SRA, even leading to suggestions that our regulatory bodies have publicly aligned themselves with neo Nazis.

Extreme case

Mr Lewis’s case was extreme in that Mr Lewis was a high-profile solicitor subjected to torrents of the most vile and appalling abuse. On a few occasions, he responded by trading insults and, in doing so, went beyond what the regulators considered appropriate for a solicitor.

Given the number of trolls and cyber bullies out there, it may well be that other solicitors find themselves having to decide how to respond to online abuse. Much of Mr Lewis’s response – reporting to the police and to Twitter and co-operating with their investigations - was described by the tribunal as exemplary.

The conduct for which he was sanctioned was posting explicit comments wishing painful and prompt death on his abusers. The SDT found that the public would expect more of a solicitor and disagreed with Mr Lewis that the only way to deal with such horrendous abuse was to fight fire with fire.

They considered that his usual response of reporting the abuse was the course the public would expect of a solicitor. Mr Lewis’s case was extreme and naturally engendered sympathy.

To suggest however that the tribunal’s decision somehow prevents solicitors standing up to online abuse – or is a mandate for those who commit such abuse – is wrong.

On the facts of this case, the tribunal found that Mr Lewis had gone further than was consistent with his role as a solicitor. It may be an unrealistic hope that this case is unique and that no other solicitor would be put in the position Mr Lewis faced on a daily basis for a long period.

With the seemingly endless supply of online trolls and cyber bullies, those acting in high-profile or politically sensitive cases may be particularly at risk of such attacks.

Solicitors and firms should consider what lessons can be learned from Mr Lewis’s case and incorporate them into their social media policy and compliance training.

There are innumerable other ways in which solicitors can fall foul of the regulator in their online world. Offensive emails, inappropriate commentary and jokes and misleading publicity may all attract regulatory attention.

It is worth remembering that anything posted online is out there for all – including the regulator – to see and it may well speak for itself.

Being a solicitor is something that we have each chosen to do, and in doing so we have voluntarily subscribed to a system of regulation which expects certain standards from us at all times.

Verbatim

“Whilst the respondent was not expected to be a paragon of virtue, solicitors have a privilege and trusted role in society. In return they are required to live up to their own professional standards.

Professional integrity is linked to the manner in which that particular profession professes to serve the public. The respondent’s Twitter profile made clear that he was a solicitor.

Objectively judged the tribunal found that the respondent had repeatedly over and eighteen month period made a number of profane and offensive tweets. The respondent had not lived up to the standards of his own profession.

He had taken the law into his own hands when deciding on a small number of occasions to respond to the vile tweets he had received in similar terms. He had made a choice to respond in this manner in the face of extreme provocation.

In doing so the tribunal found he had not lived up to his own professional standards. Whatever threats were received a solicitor of integrity did not respond to such threats by making his own threats of a similar nature. [...]

“The respondent was a high-profile media lawyer whose excellent work had brought him to public attention. In reporting the Twitter trolls to the police and asking Twitter to disable those accounts the respondent had behaved in an exemplary manner in the face of awful provocation.

However on those few occasions when he had decided to retaliate he had not behaved in a way that maintained the trust that the public placed in him and in the provision of legal services.

The public would not expect a solicitor to wish death on anybody however objectionable that person might be.”

Solicitors Disciplinary Tribunal, Case 11856- 2018, Solicitors Regulation Authority v Mark Lewis, 13 December 2018

Susanna Heley is a partner at RadcliffesLeBrasseur rlb-law.com