Earlier this year, the Solicitors Regulation Authority (SRA) issued an update on confidentiality and client information. The new guidelines mean that all SRA-regulated firms could be subject to a spot check to show consent by the client for information shared around all cases, including those used in directory submissions and marketing materials, says Simon Marshall and Jemma Crutchlow-Porter.
With marketing teams ready to embark on the first wave of submissions for Chambers, due in mid-December, these refreshed directions will impact submission preparation. And, since the guidelines are broad, law firms must assume they have to get client consent for all material; this includes pitches that name a client.
Even when your work for a client is a matter of public record, law firms shouldn’t assume they can share without the client’s consent. And where previously a law firm would anonymise a client, such as ‘a major energy provider’, the SRA has – to my mind – made it clear that the firm needs to let the client know that information related to their case, matter or deal is being shared.
Although these latest updates pose potential risks for law firms and marketers, they are just reminders of existing client confidentiality – something which isn’t a new standard for many firms. Whenever in doubt, at TBD, we ask ourselves, what would Slaughter and May do? The answer is they would never jeopardise their client’s confidentiality to win another piece of work. Client confidentiality is paramount. Stay classy, Slaughters.
First – you’re going to need to start earlier with your client referees’ programme. We sense that, counterintuitively, if you submit referees and offer no matters, you are likely to still get ranked by the directories if you are already ranked.
While you’re asking clients for consent for inclusion as referees, ask them also for consent for inclusion for matters. If it’s a publicly listed matter like public M&A, IPO, or litigation, they will be highly likely to agree, especially if you emphasise that it’s a factual write-up. If it’s something that they want anonymising, give them that option. Otherwise, a binary yes or no may well see you get a lot of rejections or lack of opt-ins.
This time around, you might even need to consider a larger number of clients for matters in case some say no.
My second tip – probably now for next year – is for new matters and new clients, make it part of your engagement letter and let them know unless it’s a highly confidential matter, you’re allowed to say you acted for them on a specific case. This will need careful handling, but your risk and onboarding team are pretty pragmatic types and so you’ll be able to convince them of your need for inclusion.
Common sense prevails. If your client appoints a new General Counsel, you need to remind them what the engagement letter looks like, which will emphasise the public elements of your relationship.
If consent is removed, you must find a way to exclude their name quickly. This means you have to be on top of your directories, brochureware, website, etc., where they are named. If you’re a larger firm, a central content management system for your materials, like PitchPerfect, will help you do this.
At first glance, it looks daunting, but when you look closer, it’s clear to see how the new guidelines can be met through a process. These processes will quickly become normal, just like cookie banners are. And in due course, you won’t think twice about clicking away that cookie banner when you need consent.
Although it’s going to be a bit painful, it’s better than some career-defining SRA spot check that sees your firm become the poster child for how not to comply.
Simon Marshall is the founder and Jemma Crutchlow-Porter a business manager at To Be Determined. Visit www.tbdmarketing.co.uk.