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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.
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:
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 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:
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.
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