Email is still fraught with risk

Whether it is the timing, content or where it ends up, the humble email continues to catch out firms and those they employ. The potential exposure
can give rise to compliance, reputational and professional negligence issues.

There have been many examples over the years, but a recent example involved an employed barrister at a firm of solicitors.

Although the email could have triggered an investigation by the SRA, as the firm and everybody in it is regulated by them, the investigation was undertaken by the BSB.

Firms that need to satisfy the regulatory requirements of more than one professional body plus, potentially, those of their clients, face a growing compliance headache, something that the SRA is aware of but is yet to address.

Professional misconduct

The barrister in question, called in 1995,
was charged by the BSB with professional misconduct which was found proved by the Disciplinary Tribunal of the Inns of Court on
25 September 2013.

The barrister’s appeal, which was dismissed by the Visitors to the Inns of Court on 22 January 2014, has just been reported (see Richard Craven v BSB (2014) LTL AC0140390).

Craven, a supervisor in the firm, sent the offending email from his personal email account out of hours to the personal email addresses of three work colleagues, one of whom was his pupil. Its content referred to a partner in the firm in less than favourable terms. Apparently, fee earners regularly used their personal email accounts for work due to alleged deficiencies with the firm’s system.

Paragraph 301 (a)(iii) of the Bar’s Code of Conduct sets out requirements which are similar to obligations contained in the SRA’s ten mandatory principles, but they are not identical.Whilst the former includes a requirement not to bring the legal profession into disrepute, firms would do well to remember that SRA principles 1, 2 and 6 apply to solicitors as much in relation to activities conducted outside practice (including private activities) as they do to legal practice.

Counsel for Craven argued unsuccessfully that if an employee at a large law firm sent an email to all its employees which was offensive about a partner, it would be a private matter and would not be caught by the BSB’s Code.
The Visitors’ opinion was that bringing the profession into disrepute need not involve the public. The intrinsic nature of the conduct was what was important.

Bad behaviour within a firm could bring the profession into disrepute. Interestingly, the Visitors also rejected arguments that the decision interfered with Craven’s rights under articles 8 and 10 of ECHR.

Blurred lines

Harking back to the Tribunal’s decision, although not considered to be decisive, it was thought that there were public elements to the email because it was sent in a work context, it was sent to work colleagues, it came from an email address that was regularly used for work and, as it was sent by email, it always ran the risk that it might resurface or become available in another way.

The focus here is on email, but there are wider implications for firms in their approach to the management of social media, particularly where it impinges on conduct outside work.

The use of Facebook, text and twitter, among others, all need careful thought, particularly if alcohol is involved.

The line between private and professional communications is getting ever more blurred, making it easier for lawyers to cross that line. While most cases may be capable of resolution in-house, firms should be aware of the ease with which emails can go viral.

By then it is a lottery whether the matter will cause reputational damage, trigger a regulatory investigation or result in a negligence claim – or all three.

So hope for the best, but have your COLP prepare for the worst. SJ

Email: top ten risks
1.    In the heat of the moment. The barrister’s email had been sent following a row and while he was ?still angry.

2.    The wrong addressee. Although not limited to email, the auto-fill option for email can make it all too easy to select the wrong name, giving rise to a potential breach of confidentiality. Whether it happens once or as part of a pattern will influence whether it is reportable to the SRA as a material breach.

3.    Inappropriate language: swearing, slang and innuendo. Emails (and other media such as texts and tweets) have championed an informal approach to content, with many younger lawyers having known no other way. There are still many who would happily say things in a business email that they would feel uncomfortable about putting in print on the firm’s headed paper.  You should have a policy which makes it clear what is acceptable, although your firm’s culture also has a part to play.

4.    Sloppy language or tone. Whilst it may be okay for personal communications, sloppy language may give rise to ambiguity which only becomes apparent once the memory of the meeting or discussion fades. Remember that your wording of an email may come back to haunt you anything up to 15 years later (this is the maximum period for limitation, barring any deliberate concealment).?The age old guidance still holds good today. Don’t put anything in an email (or text or tweet) that you would not want read out in open court or published in the news media.

5.    If you type your own emails, you may only see what you meant to say, not what you have typed. ‘Now’ instead of ‘not’ can have unfortunate consequences. It is very obvious that many email users either do not read their mails before hitting send or do not use the spellchecker facility.

6.    Keep email content short. If an email is long or involves a complicated point, consider setting out the content in a letter which is sent by email. In general, people take more care over the drafting of a letter than an email.

7.    Auto-correct. Perhaps more an issue for other media (especially text), but do read what you have produced if auto-correct is enabled.

8.    Copy to all, reply to all and email strings. The content of an email often evolves as it is written. To avoid embarrassment (or worse), don’t add the addressees until the content is finalised.  Remember to scroll down to check what others have said before circulating an email string more widely.

9.    Control. Once an email has been sent, remember that you have no control over where it goes next. Whether it concerns an unusual shampoo or the physical attributes of the partner’s new secretary (two genuine examples), sometimes the point at which the enormity of your error dawns is immediately after hitting ‘send’.

10.    Is your email system ‘fit for purpose’? What may have worked when emails were the exception rather than the rule may no longer be sufficient. If you allow or encourage people in your firm to use their personal email accounts for business, the short-term solution, i.e. delaying investment in new IT, may only give you long-term headaches (echoing Tony Blair’s advice to Rebekah Brooks, as recorded in an email that did end up in court. Remember point 4 above). An unprofessional image, potential breaches of chapter 8 of the code and serious issues when it comes to managing email come to mind.

Tim Prior is a non-practising solicitor and director of consultancy firm PNCR Legal ?www.pncr.co.uk. ?Contact timprior@pncr.co.uk