*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 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.
- 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 :
- 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”).
- Integrity (“think about the impact social media could have on a lawyer’s professional reputation” – especially where something might “go viral”).
- 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”.
- 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”).
- 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”)
- 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 :
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 :
You must act in the best interests of each client
You must act with honesty and integrity
You must maintain your independence
You must keep the affairs of each client confidential
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!