In the digital age, our actions, thoughts, and feelings are there for all to see on social media platforms such as Facebook, Instagram, Twitter, and Snapchat. Employers are routinely scouring social media accounts of prospective employers as a part of their screening process. Employers are also actively taking notice of what their staff are up to and checking to see if their actions may bring their firm into disrepute. As a case in point, many will be aware of the estate agent, Lewis Hughes, who was filmed haranguing Professor Chris Whitty. A clip of Hughes and his friend Jonathan Chew taunting Whitty in St James Park in London was shared widely on social media, which led to Hughes being sacked by his employer, Caplen Estates Agency. It now appears that those in the legal profession are under increasing pressure to keep their behaviour in check when not at work.
SDT warns solicitors about their personal lives
In the introduction to the SDT’s latest Annual Report, Mr Edward Nally, President of the Solicitors Disciplinary Tribunal, said that the private lives of solicitors cannot “completely be disregarded” when it comes to the assessment of overall professional conduct. In the Annual Report Welcome, Nally stated, “It is noteworthy that this year we have seen examples of cases where the actions of solicitors in a private capacity have come under the microscope in terms of professional misconduct. Sexual misconduct and offensive social media activity are two obvious high-profile areas, but there will no doubt be many other areas where the delicate balance between personal and professional conduct arises. My personal perspective is that it is impossible for solicitors to leave their practising certificates at home completely and expect to act with total impunity in a personal capacity. It would be most odd if appalling behaviour in a personal capacity could completely be disregarded in terms of whether it also constitutes professional misconduct, or whether it calls into question the integrity of an individual”. He also made the point that the SDT have to further consider where the “regulatory reach of the Solicitors Regulation Authority starts and stops, and we must do that fearlessly in the public interest”.
This warning represents an important intervention by the SDT and will act as a reminder for those in the legal profession to uphold the standards of their practice at all times, not just during work time.
Evidence that the legal profession is already increasingly aware of actions in personal life?
There is already some possible evidence that those in the legal profession have taken heed of landmark cases involving the actions of high profile lawyers outside of work. The case of former Freshfields partner Ryan Beckwith involving suspected sexual misconduct, who was found guilty of breaching SRA principles 2 and 6 as a result of spending the night with a junior colleague in 2016. This was overturned in November 2020 by the High Court, but it is possible that this case will have led to greater scrutiny of conduct by law firms of their staff and likewise greater awareness by staff in social situations, whether inside or outside work. To add weight to this, research by employment law specialist Fox & Partners has revealed that the number of sex discrimination and harassment complaints received by the SRA reduced by around 30% in 2020 compared to the previous year. While this was attributed at least in part to remote working, the impact of changes in work culture in the legal sector cannot be discounted.
The extent to which the actions of solicitors in their personal lives should impact their professional career is a balancing act that the SRA and SDT will need to manage. However, we have already seen something of a tug of war between the courts and the SRA, with the High Court ruling that the SRA had delved too far into the private life of Ryan Beckwith.
Where behaviours outside of work may damage the reputation of the legal profession or a legal firm, or it may cause clients concern, it is perfectly reasonable for those to be taken seriously by employers and the SRA and SDT. That said, any action taken should be proportionate and reasonable, within the bounds of employment law, the employer’s disciplinary process, and the rights of employees to a private life. It is best practice for law firms to ensure that they have in place a clear employment policy covering the use of social media and the standards of behaviour expected outside of work, including why this is so important for the individual, the employer, and the profession more widely.
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