Debretts* guide to social media for lawyers

get out of jail by Mark Strozier on Flickr

*It’s not Debrett’s, it’s mine.

It was reported last week in the Gazette that we barristers had been “warned” over our social media conduct. It took only a small amount of digging to establish this was somewhat overblown. In fact, the Bar Standards Board’s Independent Observer had suggested that the BSB might want to refresh its social media guidance to the profession as complaints about barristers use of social media were on the up.

The Independent Observer appears simply to have been echoing her earlier report which said this (and only this) on the topic :

Social media

  1. Social media use is a challenging area for all professional regulators. The BSB’s current stated policy on ‘media comment’ is already quite dated and narrow in scope. There are an increasing number of complaints relating to the use of social media by barristers. This was a topic of discussion at the recent PCC/Prosecutor Panel Awayday and there were a wide range of views.
  2. I think the BSB, informed by those involved in the enforcement system and recent cases, needs to refresh its guidance to the profession.

More a gentle warning to the BSB to shape up than a warning the profession, one might say. We do not know how many complaints of this sort there are, nor how any increase matches (or not) the proportional increase in social media use generally, let alone what proportion of such complaints are upheld (or even how many actually disclose a breach of the code of conduct).

We do know however, that some barristers have been sanctioned for their use of social media. For example, in October non practising barrister Ian Millard was struck off [disbarred****] for anti-semitic tweets he published, whilst Michael Wolkind QC, who made outrageous boasts on his website, was fined because such remarks were ‘likely to diminish the trust and confidence which the public placed in him or in the profession’ (see the Gazette here). This is not a completely new phenomenon either – in 2012 another barrister who called his opponents “Slimebags” on twitter (amongst other things) was struck off [disbarred]. On the other side, a solicitor who boasted on twitter about his “great win” over parents of children with special educational needs, prompting a twitter backlash, was also struck off[reprimanded – corrected shortly after publication. Apologies.] **.

However, one only has to google “barrister struck off” [or disbarred] to be reminded that the vast majority of strikings off [disbarrings] (which are still comparatively few and far between) are for dishonest or fraudulent conduct of one sort or another. The most notable recent example of striking off is that of a solicitor, the now notorious Phil Shiner. It seems likely too that a solicitor in Scotland recently convicted of a racist tirade against a mother and her 4 year old son on a train may soon face himself facing misconduct charges. There are plenty of examples from the bar too.

Anyway, back to that “warning”. As a blogger and avid user of social media this prompted me to check said BSB guidance. I recalled reading the Law Society Practice Note when it was issued a few years back, and that it was (for the time) pretty comprehensive. I thought I recalled something from the Bar Council or BSB. But actually I was surprised to find that there is precious little, and certainly nothing self-contained, so (with respect to the Independent Observer), that gentle nudge ought really to have been more a boot up the behind. As far as I can see there is no specific guidance for the profession from either the BSB or Bar Council on use of social media (what there is I set out below). That is quite extraordinary when one thinks about it – lawyers are all over social media these days. Even the judiciary have guidance (albeit somewhat unworldly). What we do have is passing references to social media in guidance about media comment. I think in my mind I must have absorbed that useful Law Society guidance, translated it for use at the bar and remembered it as coming from the bar (ah, the fallibility of memory).

I did re-find a useful post by @maggotlaw on ICLR entitled : Principles on social media conduct for lawyers, which rounds up the guidance applicable / available to the professions. It is dated 2014 but I don’t think anything substantial has changed (tells you something in itself).

It helpfully sets out the six principles of the International Standards on Social Media Conduct for the Legal Profession, adopted by the International Bar Association :

  1. Independence (“lawyers should reflect upon the professional implications of being linked publicly” to judges, clients, other lawyers etc. Or indeed governments. They “ought to project the same professional independence and the appearance of independence that is required in practice”).
  2. Integrity (“think about the impact social media could have on a lawyer’s professional reputation” – especially where something might “go viral”).
  3. Responsibility, “to understand use” of social media and its implications; “to clarify use” and the capacity in which they release content using social media and whether it is “intended to be relied upon as professional advice”; “to use appropriately”; “to adhere to practice promotion, advertising and solicitation rules, codes and legislation in use”; and to be aware of “conflicts of interest”.
  4. Confidentiality (“social media platforms are not appropriate for dealing with client data or other confidential information”; lawyers should also “consider client confidentiality more generally when using social media”).
  5. Maintaining public confidence (“restraint should be exercised so that online content adheres to the same standard as it would offline in order to maintain a reputation demonstrating characteristics essential to a trusted lawyer”)
  6. Policy (“employees of the practice [that engages in social media] should be given clear guidance and instructions on their correct use … in a work related capacity”.)

These standards all seem very sensible, and are referred to in the Bar Council’s Guidance Expressing Personal Opinions to/in the Media as helpful, but otherwise in this document social media gets but a passing reference and is identified as generally “risky”. Not an enormous amount of help, thanks Bar Council. Although not formally applicable, it’s worth reading the full International Standards document (link here), which is quite useful in helping one think through the potential issues.

So what does the BSB / Handbook actually say?

Gc22 note to the Code of Conduct says this :

The former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or current proceedings in which they are briefed has been removed.  Practising barristers must, nevertheless, ensure that any comment they may make does not undermine, and is not reasonably seen as undermining, their independence. Furthermore, any such comment must not bring the profession, nor any other barrister into disrepute. Further guidance is available on the Bar Standards Board’s website (https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/) or by clicking on the relevant link.

The link in the quote above takes one (indirectly) to the BSB Media Comment Guidance. It says :

The Bar Standards Board believes that, consistent with the rights of freedom of expression that are enjoyed by all, the starting point is that barristers are free to make comments to or in the media (this includes both conventional media – speaking to newspapers or broadcasters – and new media – social media, blogs and websites). However, because of the special position they occupy, certain rules will continue to limit the circumstances in which it will be appropriate for barristers to comment on cases in which they have been instructed and what they can properly say.

That, ladies and gentlemen, is the single reference in the whole document to social media use. The note itself is only 2 pages long and amounts to no more than a big fat “be careful chaps”.

What it all boils down to is this :

CD5 –

You must not behave in away which is likely to diminish the trust and confidence which the public places in you or in the profession

This is Core Duty 5 of the code of conduct.

Also relevant are :

CD2 –

You must act in the best interests of each client 

CD3 –

You must act with honesty and integrity 

CD4 –

You must maintain your independence

CD6 –

You must keep the affairs of each  client confidential 

CD8 –

You must not discriminate unlawfully against any person

But significantly, CD5 (diminish trust and confidence) is the one that applies AT ALL TIMES – not just when one is providing legal services. Hence the BSB guidance : “you have a right to free speech, but if you wanna keep being a barrister you need to rein it in a little sometimes” (I paraphrase). (For what it’s worth, the link to the utterly frustrating, totally un-navigable Handbook is here).

So, how does all that help us work out what we can and can’t tweet? It really doesn’t. We must, it seems, rely upon our good judgment (ha ha ha).

We must remember that even when tweeting (or facebooking or whatever-elsing) in a personal capacity we could be hauled over the coals for a breach of CD5, although if someone doesn’t know your outrageous tweet is by a barrister it is of course unlikely to diminish public trust and confidence. But a barrister tweeting outrageously in a personal capacity who is identifiably a barrister is at risk of a CD5 charge – regardless of their right to free speech. The BSB can’t stop me tweeting rot, or offensive nonsense, or racist bile*** – but it can stop me being a barrister if I insist on doing it.

My response when I was politely asked by my then Head of Chambers (way back in the dark ages when blogs were still positively outre and wibble-inducing) to stop my trivial blogging in order to avoid damaging a far more serious and important colleague’s (apparently very delicate) practice, was : “free speech”. “Oh”, came the response – and that was that (Still p*ssed off said barrister compared my blog to “his wife’s heat magazine” though. However, I amuse myself with the knowledge that even he with the Heat-reading wife now blogs – how times have changed). But my Article 10 rights don’t of course mean that I just hit “Publish” with abandon. I often sleep on it, worrying about being the right side of the line professionally. Is this something a barrister ought to say? I blog and tweet in the knowledge that if I say something sufficiently daft my right to free speech will be no sort of defence to a charge under the code. It’s not a get out of jail free card.

It doesn’t surprise me that complaints about our use of social media are on the rise. How could they not be? More barristers are using social media. More people are using social media. And people get upset and offended (I know, I’ve been there, on both sides of the upset). Twitter is notoriously slow to block, litigation is expensive – but those who are regulated can be complained about to other bodies – to chambers, to the BSB, to the Ombudsman. Such complaints may have merit – or not.

And we lawyers can be robust, perhaps even blunt. Sometimes persistent. Often sweary. This can be pretty combustible online. But in itself is not the stuff of a complaint with legs. Such is life online. I doubt many of us who use social media have never put a foot wrong, I doubt any of us have not tweeted or posted something that has not drawn sharp criticism or offence. I for one have been sued (unsuccessfully), threatened, sworn at, called names and sharply criticised (sometimes justly sometimes not). But of course I don’t always get it spot on. And I don’t think the bar at large is in regular breach of CD5. The public expect the profession to be human and, as such, ordinary human error or moments of foolishness are unlikely to diminish the public trust and confidence in us as professionals. But that doesn’t mean we can act like utter idiots.

So. My guidance to the profession? Be a nice human being. Ask yourself : will I be embarrassed to read this the morning after? If you aren’t sure, don’t say it till the morning after. And yes, I slept on this one before hitting publish…

 

** Someone is bound to observe that there has been recent press coverage of a dispute between a colleague of mine and another barrister, which involves use of social media and allegations of misconduct. This post is NOT about that and it would be inappropriate to comment here upon that matter (though I might have much to say if not fortuitously fettered by CD5) other than to say “handbags at dawn?”. Really? Quality journalism there… But naturally, that matter has been on my mind, along with (it seems) never ending news reports about barristers and solicitors struck off [or disbarred] for assorted awfulness. That unhappy situation cannot but have informed this post, but this post is not a comment upon it – and I am not going to permit comments that attempt to turn it into a forum for discussing things which are being dealt with through other channels.

*** I don’t do that last thing. I don’t do the second thing on purpose. I do the first one a lot.

**** I’ve corrected references to striking off, as barristers are technically disbarred not struck off (of the roll, as with solicitors). Thanks Gladiatrix.

Feature Pic : courtesy of Mark Strozier on Flickr – thanks!

Man flu

I have been so poorly….I’m still not quite right, but man I’m SO much better than I was. Thank you to all you tweeters for your variously novel and disgusting  sounding remedy suggestions…

I have whinged, and sneezed, and whined and lain wanly and pathetically like that painting of the dying Thomas Chatterton, I’ve even been entertainingly delirious at one stage (during which I had some CRAZEE waking-dream idea for a blog post which now makes no sense at all. Fortunately I was too ill to type or post it). I have gone deaf and lost my voice, and am currently at the mildly husky, everything sounds like I’m lying in the bath stage of recovery.

I have returned a number of briefs (damn damn damn), realising that mouthing words without sound does not make for the most compelling advocacy (I did once attend court with manflu. I wept in the robing room and then had to whisper my application to adjourn to the judge as the sweat ran down my back (roughly speaking it went : look judge, I don’t think I can cross examine 7 witnesses in one day with no voice and a raging fever. I’m regretting driving here in the first place and wondering if I’ll get back home without crashing)). I didn’t do that this time. This time I just returned the briefs.

So. I have blown my nose a million times into a million tissues. Somewhere a small landfill is entirely full of my gunky snotrags.

I have coughed and coughed and coughed and coughed almost to the point of aneurism.

I have endured the red hot poker of sinus pain.

I have feasted on cough mixture and decongestant and pain relief. And yoghurt. And satsumas.

And I have got very very behind with my work.

But today good people of the blogosphere : I feel a bit human. Today, on day 11 of the manflu I realised I was doing a jaunty little walk back from the sandwich shop in the chill air, with the clear sun beaming down. Because my shoulders weren’t aching and I was actually starving. So, my continuing sniffles, my poor poor sore red nose, and my irritating hack are all manageable now. Cos I’m on the mend. And life is good. So it’s safe for you to look at my timeline again.

I even wrote a blog for The Transparency Project tonight : Imaginary judges use imaginary powers to reform imaginary law, which, I think you’ll agree is a title to be proud of. Or possibly I’m still hallucinating.

Parliament on d.v. : turns out its not so easy to ask the right questions…

There was an important debate in Parliament today. The government was put on the spot about the scandalous cross examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

That this issue is being tackled (or is about to be tackled) is a good thing. It is unfortunate that it has taken so long for people to wake up to it. But I have to say that the framing and depth of the debate about this really important issue leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser / rapist and actual abuser / rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims. The victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims. But the corollary is : nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child. Not all of them, some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complalnant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation / trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning). Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between : cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions. But the 25% statistic used by Oliver Heald does not come from court statistics, not from any proper research and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous posts about that here) [update 11 Jan 17 – they have now answered, see here]. The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context. A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder. Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets – for me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem not to the publicity campaign. It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required). It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition,  and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere BAN on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.