A Solicitor’s Balancing Act: Personal Privacy verses Professional Integrity

Recently, although limited to a minority, actions that some solicitors might have thought were firmly within the remit of their private lives have triggered regulatory investigations and led to reputational damage for the firms they work for. Examples seen have included physical altercations, driving offences and office party conduct, all involving regulatory and media interest. In the digital world, damage has also been caused by inappropriate social media postings and offensive or abusive conduct on dating apps or other social media. 

Where someone is identifiable as being regulated by the Solicitors Regulation Authority (SRA), they're expected to act at all times with honesty and integrity, in a way that upholds public trust and confidence, and in a way which promotes equality, diversity and inclusion. Any discriminatory, abusive or repetitive behaviour could potentially fall foul of these requirements. This has rightly always been the SRA’s stance in regulating the industry and protecting customers, but there's limited awareness of the fact that can also extend to behaviours outside of work. 

In their Sexual Misconduct guidance note dated 1 September 2022, the SRA confirmed that the closer any behaviour is to an individuals’ professional practice, the more likely it is that the conduct might be considered to impact on the integrity of the individual or the wider profession. They also confirmed that sometimes, the conduct might be so serious that even if it arises in a private setting, they'll consider bringing proceedings, and that this extends to actions taken on social media. 

Deciding precisely where the personal/professional boundary falls can be difficult for firms to navigate or articulate – particularly in respect of employee’s use of social media in their private lives. In fact, the reputational damage caused by negative media can be just as significant to a firm as an SRA investigation or the prosecution of an individual, and often firms have very limited understanding (and no way of knowing or monitoring) the hidden potential reputational and regulatory dangers posed. But there are practical measures you can put in place to help protect against these risks, and some clients are already doing this successfully:
 

• Extensive onboarding checks on employees and potential risks - going beyond traditional employee reference checks, which no longer suffice. In addition to standard checks, evaluating a prospective employee’s social media profiles has become essential. This process can be intricate and time-consuming, prompting organisations to enlist professional services for a thorough assessment.
• Having a comprehensive social media policy, connected to employment contracts. Many legal businesses consider this to be crucial for safeguarding their business. A good social media policy will usually establish the expected behaviour and actions of employees, especially in the context of their private and work-related profiles. As a regulated industry, law firms can be explicit and transparent about expectations, directly tying them to an individual’s employment agreement. Additionally, it's essential to incorporate non-disclosure agreements (NDAs) into the social media policy to help manage the risks posed by an employee departing the company. These NDAs protect the business from potential adverse online behaviour by former employees, particularly in cases of acrimonious separations.
• Regular training on ethical behaviours and the impact of professional status on private lives.
• Utilising commercial tools (such as those provided by Aviva Specialist Partners) to help define and mitigate the risk.
• Regular revisiting of employer and employee expectations, as regulations and technology evolves. 
• Involvement of specialist online security experts to stay ahead of the risks and the potential detrimental effects on a business.
   

For more guidance on managing Professional Indemnity risks, please contact your dedicated Aviva Professional Indemnity Risk Manager, or reach out to amanda.stipetic@aviva.com or sarah.vandaalen@aviva.com.