The dangers of rushing to comment on a judgment

I doubt there was a barrister, solicitor or legal marketer who didn’t wince at the recent CoA judgment involving the highly reputable Matrix Chambers who had accidentally revealed the results of a case online almost 24-hours before the official hand-down. Rather ironically this unusual judgment quickly went viral on legal social media channels, and for obvious reasons. Many people were thinking – that could easily have been us.

The ‘normal practice’ described by Helen Mountfield QC (a legal representative in the case and who played a part in the breach) on how embargoed judgments are dealt with internally by their chambers is not uncommon. The clerk receives a password protected copy of the judgment; they let the marketing team know it’s happening; who in turn ask the barrister to prepare a news item on the case that will be uploaded and shared across social media channels once judgment is handed down. All very standard procedure.

What this case makes clear however, is that the internal sharing of any detail, however minor, of an embargoed judgment with anyone other than the barrister/solicitor instructed is strictly prohibited. The clerk can merely serve as a post-box and the marketing team cannot be prepped to do their job ahead of the hand-down.

In the judgment Sir Geoffrey Vos, master of the rolls, acknowledges that some PR preparation may be required ahead of the hand-down. However, he makes a clear distinction between the parties and the legal representative on this point, stating that whilst the parties themselves may have to prepare to explain to the public what had occurred in the judgment, legal representatives have 'no need to'.

The word ‘need’ is open to interpretation. As a legal marketer and non-practising solicitor (who can just about remember the days when judgments used to have to be physically collected from court), law in a digital age is fast paced and there is often a scramble to be the first to comment on a significant legal decision. Whilst this ‘need’ might not be the same as the parties to the case (reputation management etc), Vos’s comments fail to recognise that the swift sharing of case outcomes is part of the modernisation of the legal profession who are being encouraged to deploy business-like tactics and engage effectively online. Chambers’ websites are also commonly used as a resource by solicitors searching for new case law and associated legal comment.

The flip side to the argument to all of this, is do judgments really need to be embargoed anyway? In reality, how many times do draft judgments get amended before being formally handed down?

In truth, the impact that this decision has on the practicalities of sharing judgments on chambers’ website and social media channels ought not to be hugely significant. Barristers will still be able to prepare draft news items and case synopsis ahead of time, there will just be a bit more pressure on the marketing and communications team to share the case outcome on hand-down day.

It’s not often you read about a case involving a legal marketing issue. Even the judge in the case struggled to find other comparable cases. It’s also unusual in that no penalties were imposed by the court. Instead, the judiciary chose to fire a warning shot to the legal profession to tighten up their internal processes because violations of embargoes are 'becoming more frequent'.

This case very much signals the establishing of boundaries between lawyers and the administrative teams who support them. It’s a case that also acknowledges the rise in marketing activity by those working in the legal sector and seeks to give guidance to those managing that process.

It remains good practice for legal marketing teams to be aware of significant upcoming decisions, I just hope this decision doesn’t stifle the communications between lawyers and the legal marketing teams whose job it is to promote their expertise.

Natalie Rodgers is a chartered marketer, non-practising solicitor and manager director of legal PR firm Scala