When no publicity is better than bad publicity

We’ve all heard the saying that there’s no such thing as bad publicity. Let’s destroy this myth once and for all – for the legal profession, this is not true. Bad publicity can have detrimental regulatory consequences for individuals and for firms.

This means that while most firms find it necessary or beneficial to have a marketing budget and to promote itself through a variety of publicity initiatives, we must never forget that we have one arm tied behind our regulatory backs when undertaking such activity.

This a worry. Does your firm’s compliance function extend to oversight and monitoring of publicity in all its forms?

I’ve been reflecting on publicity and compliance. My thoughts have been triggered by some innovative thinking on the part of a solicitor who launched an online petition aimed at attracting the attention of the Solicitors Regulation Authority (SRA) and asking it to reflect on and change certain current regulatory publicity restrictions.

Tightening up

The petition has reminded me that it’s important to ensure staff understand the SRA’s requirements, particularly as the SRA standards and regulations have tightened up a long-held publicity position without much notice being given to the change (was the change spotted by the right people in your business?)

The SRA’s starting point can be found in the SRA codes of conduct: we must ensure that any publicity is accurate and not misleading. We are also subject to a restriction that we do not make direct approaches to potential clients. Publicity is defined by the SRA for these purposes.

The tightening of restrictions mentioned, and which appears to be the impetus for the petition, applies to direct approaches. Previously, the regulatory language described prohibitions on unsolicited approaches. Most of us simplified things by talking about cold calling.

Before November 2019, this restriction applied to cold calling in person so that direct approaches in the street and on doorsteps and by telephone were disallowed. No one enjoys a cold call and the argument about why this is considered unprofessional is uncontroversial and justifiable.

The restriction had not extended to written communications. In the 1999 compliance manual, The Guide to the Professional Conduct of Solicitors, the profession was directed that “unsolicited mailshots may be sent and can be targeted”. Admittedly, this was a regulatory position originating in the Law Society’s era of regulation, but the SRA chose to run with it until 2019, even updating the references in 2007 to make clear that emails did not fall within the prohibition.

The SRA Handbook (replaced in 2019) described approaching people, for example in the street, as behaviour likely to place you in breach of SRA duties.

This position changed in 2019. We are now prohibited from making any type of direct approach to potential clients including approaches conducted in a targeted written form. It is difficult to see why this further restriction was implemented with little fanfare given the ramifications for how many firms publicise their services.

Perhaps as a consequence of this and confusion amongst the profession as to what now counts as a direct approach, the SRA published a guidance note in December 2019 (again, with little publicity and – ironically – using terms that had been replaced) called Unsolicited approaches (advertising) to members of the public.

Late in the day, via this non-mandatory guidance, we were told “you cannot make direct or specifically targeted ‘approaches’ to members of the public in person, by phone or via other means which target them individually”. You are now asked to consider a requirement aligned with undertaking publicity in a ‘non-intrusive’ and ‘not targeted way’.

In other words, the SRA allows commercial advertising, such as in radio, television and newspaper settings. Posters are acceptable as is the use of social media and other online forums for publicity. None of this appears to fall foul of the regulatory concern about targeted approaches. Distributing leaflets is also acceptable provided that distribution is not targeted. Other forms of targeted written communications are also no longer acceptable.

Compliance risks

Pitfalls abound now that we know the SRA has tightened up its interpretation of targeted advertising. Does your conveyancing department leaflet drop those homes with ‘For sale’ boards in their gardens or properties that they can identify from estate agency websites?

This has been a commonplace and seemingly harmless exercise, but it now seems reasonable to assume that there is a risk that the SRA would regard this as intrusive and targeted and not in keeping with its guidance.

The content of publicity material is also a subject of regulatory concern given the requirement for it to be accurate and not misleading. Promotional materials about the services which the firm can offer must toe this line so that if successful, and clients are forthcoming as a result, their expectations about what services can be provided and the costs to them, are clear and understood.

Publicity generated by or about individuals is also a risk hotspot both for them and their law firm employer. Promises of success which are made, or lack of clarity about financial implications, are both examples of bad publicity.

Consider also statements about an individual’s status (remembering the holding out offences associated with misuse of the solicitor title and the qualifications associated with the use of the term ‘lawyer’) and individual competencies. Are you confident no one is being misled?

Social media

Another strand of compliance risk is associated with an individual’s use of social media and other online platforms (including the firm’s website) to publish information about themselves, their cases, the law and the services which can be delivered.

We are all aware of the SRA’s concerns about the misuse of social media (both professionally and personally) and offensive communications, but there is more to consider than this. Any use which is promotional in nature is tied up with the SRA code publicity requirements.

Is anyone checking for accuracy? Is anyone considering potential pitfalls, such as the misuse of confidential information? Are the firm’s expectations about personal promotion made clear? Is everyone happy that all publicity supports the firm’s culture?

Publicity can be generated by third parties and those in the firm’s marketing team may wish to court others in the hope it results in new business. It is important to ensure that we and the third parties understand that our own restrictions about compliant publicity extends to the publicity conducted on our behalf. Is the firm ensuring that these restrictions are understood? Are we checking what was said to potential clients who find out about us from third parties?

This topic is a minefield littered with unseen hazards for the unsuspecting. Publicity risks must be on your compliance agenda. The hotspots extend far deeper than simply understanding the code of conduct duties.

Inducements

Compliance in practice can appropriately extend to a consideration of inducements which we might use with clients and others in an effort to drum up business. Are these compromising our ethics and/or even illegal?

Further questions include:

• Is publicity about pricing consistent with the SRA transparency rules so that relevant staff are aware of website information, what must be included on the website and how this must translate into practice?
• Is training needed and competency measures considered?
• Who needs to keep up-to-speed with directly relevant legislation about advertising; and indirectly relevant legislation such as applies to data protection?

Importantly, do your publicists, many of whom may well have little knowledge of our regulated industry, need to understand their new starting point – which is with the SRA and its interest in them and the publicity which the firm generates?

Tracey Calvert is a consultant at Oakalls Consultancy Limited oakallsconsultancy.co.uk