To post or not to post: the dangers of electronic communications

Amanda Eilledge reminds everyone of how careful we need to be in our electronic communications.

Last summer, a ten day trial in which I was involved was adjourned. The judge recused himself after one of the party’s solicitors sent an email to the judge’s clerk enclosing a link to a website containing sensationalist (but true) information about one of the counsel involved in the case. The subsequent successful wasted costs application cost the solicitor’s firm in excess of £100,000. It was a salutary lesson in how careful we as lawyers need to be in our electronic communications. It is all too easy to fire off an email or post on social media without thinking through the professional consequences of doing so.

Here is a reminder of some of the issues that may affect civil practitioners.

Criminal offences

An offensive, threatening or harassing communication may amount to a criminal offence: see section 1 of the Malicious Communications Act 1988, section 127 of the Communications Act 2003 and the Protection From Harassment Act 1997.

Communications with the court

The rules are contained in CPR 39.8:

• The general rule is that unless a rule or practice direction states otherwise, any communication between a party to proceedings and the court must be disclosed to, and if in writing (whatever the format) copied, to the other side. This applies to any communication on a matter of substance or procedure. However, it does not apply to communications that are purely routine, uncontentious and administrative.
• Disclosure is not required if there is a compelling reason. That reason must be clearly stated in the communication to the court so that the court can decide whether to accept the communication or to return it.
• Where a communication is being disclosed to the other side, it must state on its face that it is being copied, stating their identity and capacity.

Communications with clients and the other side

There are obvious dangers in using informal means of communication such as text and email. In particular:

• The instant nature of such forms of communication can be dangerous. The need to reply quickly can lead to replies being sent out of the office when the sender is distracted by his or her surroundings and without time to reflect on the content of the communication, and whether it is accurate and appropriate.
• It can also be far easier to be drawn into a quick-fire series of communications that can become heated and cross the line between a robust communication which is appropriate in a litigation context, and an inflammatory or gratuitously offensive one which is not. This can be a particular problem where a solicitor is dealing with a litigant in person or a McKenzie friend. The SRA has received an increase in complaints regarding solicitors making offensive or abusive comments to another firm about that firm or its client, or to individuals who are unrepresented.
• The language used in texts and emails is likely to be less formal. It is important to ensure that the tone of such communications and its content remains professional, particularly when using texts to communicate with clients.

The SRA’s warning notice on offensive communications, issued on 24 August 2017, provides some useful guidance.

Use of social media outside work

It is in this sphere that the SRA was receiving the majority of complaints when it issued its warning notice. Principles 1 (administration of justice), 2 (integrity) and 6 (public trust) continue to apply to solicitors outside their practice. The Bar Standards Board social media guidance, updated in October 2019, reminds barristers that they are bound by Core Duty 5 not to behave in a way which is likely to diminish the trust and confidence which the public places in them or the profession at all times:

• Take particular care when participating in online discussions where you have identified yourself.
• Remember that even if your comments are anonymous, anonymity is not guaranteed.
• Think carefully before retweeting comments which may be viewed as offensive by others.

The BSB guidance warns of a less obvious risk: by advertising the fact that you are in a particular location at a particular time (perhaps via a “geotagged” status update), for example, you may risk inadvertently revealing that you act for a particular client. Another less obvious risk that comes to mind would be posting on your Facebook page that you have just arrived in the British Virgin Islands, when the reason you are there is to apply for a without notice injunction in a shareholder dispute which you hope will take the other side by surprise.

This article was first published by Practical Law.