The heated debate that just makes us look daft

*coughs* um...guys? You know you're all getting a bit hot and bothered about that new guidance issued by the regulator? You know, the new guidance which has half the profession huffing about how its just because they have to do something to justify their existence... and which has caused half the bar to take umbrage at not being allowed to have the odd heated debate on twitter, to help you unwind after a hard day of heated debate in court...?

The Gazette wrote about it here :

Regulator warns barristers against heated Twitter debates

At the time I was a bit bemused by all the fuss. In a spare few minutes I dug out the piece I wrote last year for Counsel Magazine which summarised the guidance that was current at the time, and gave some (hopefully sensible) guidance :


It's been bothering me though ever since, particularly since hot on the heels of this new guidance came the suspension of a barrister for - you've guessed it - social media comments. See :

Barrister suspended over offensive social media posts

and

Barrister suspended for offensive Facebook posts about Thatcher

neither of which made it immediately obvious (to me, at any rate) why the comments had led to such a serious sanction. Was this an example of the new, more draconian guidance in action? Perhaps I had been too relaxed...

I've now had a few more minutes to dig back into the various pieces I've written on this issue over the years. I am pleased to report that it is exactly as I thought it was (I rejoice whenever my memory has not failed me in these days of decrepitude). Dudes. I have to tell you that the guidance has said this for years (since March 2017 to be precise). It's not new. It might have been wrong since March 2017, but if so not a one of you noticed and the sky doesn't appear to have actually fallen in - and nor have vast swathes of us been sanctioned for routine twitter bun fights. (pssst, we're lawyers, we're supposed to check the facts before gobbing off!).

Look : I wrote about the situation in February 2017 in a post called

Debretts* guide to social media for lawyers

I know right - it's one of my better titles. Anyway, less than a month later the BSB, clearly trolling me, went and published updated social media guidance, rendering my post out of date. So I wrote about that here (with, if I may say so, another brilliant post title - if you have children of a certain age and have ever watched Wreck it Ralph) :

Core Doody 5 – the sequel

I was so pleased with my Debrett's title that I plagiarised it when rolling up the above two posts for Counsel Magazine here (not sure you can plagiarise yourself but anyway...). That was for a print publication and so it had a word limit that forced me to condense the content of both posts. As a result, what are missing from the rolled up post are the quotations from the March 2017 guidance. The full 2017 document is no longer accessible via the link in my Core Doody blog post because, helpfully, the BSB have reorganised their cupboards, but the quotes (which I think from memory were pretty much the entire document) tell you all you need to know :

Core Duty 5 (duty not to behave in a way likely to diminish public trust and confidence in the profession) was said to apply AT ALL TIMES, including on social media - in both your personal and private capacities "since the inherently public nature of the internet means that anything you publish online may be read by anyone and could be linked back to your status as a barrister".

And

  • 'Comments designed to demean or insult are likely to diminish public trust and confidence in the profession'
  • 'It is also advisable to avoid getting drawn into heated debates or arguments. Such behaviour could compromise the requirements for barristers to act with honesty and integrity (CD3) and not to unlawfully discriminate against any person (CD8)'
  • 'You should always take care to consider the content and tone of what you are posting or sharing. Comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others.'

I noted that there was also some guidance about client confidentiality and geotagging, and a reminder that :

'When you are using social media, you should bear this guidance in mind at all times. This guidance will be considered by the BSB in any action it takes over concerns about social media use. If you are the subject of a complaint concerning your use of social media, we will investigate the matter carefully and in line with the process explained on our website.'

So yeah. That bit about heated debates and arguments that drove the media coverage and twitter angst - been there since Mar 2017. Awkward.

This is what I said at the time :

I wonder if it is striking quite the right balance to suggest that we should avoid getting drawn into heated debates or arguments. One might rhetorically ask what is the point of twitter without heated debates and arguments? The point is not the fact of the argument, it is the manner in which it is conducted. It cannot be right that barristers should be prohibited from expressing strongly held opinions in strongly worded terms. But there is of course a limit to what is acceptable, either for a barrister or for joe public. It is quite possible to be appropriately involved in a heated argument on twitter without offending CD3 (honesty and integrity) and without discriminating (CD8). I would prefer this guidance to say simply that in any communication online a barrister should act with honesty and integrity and should not act in a way which is discriminatory. Those quite unacceptable behaviours have nothing to do with the vast majority of heated debates. Tweeting things which are knowingly untrue, or which are misleading might well amount to a breach of CD3. Tweeting discriminatory remarks would breach CD8. Either could take place within the context of an argument or debate or gratuitiously and without prompting. The BSB should not be trying to shut down debate, it should be regulating offending behaviour. I acknowledge however that it is in the course of heated debate and argument, particularly fast paced twitter frenzies, that errors of judgment are most likely to be made. If that was what the BSB were driving at they could, respectfully, have found better wording.

I struggle somewhat with the insinuation in the last bullet that material that is considered offensive by some might offend against CD5 even where the barrister "reasonably" considers it appropriate. I don't think the BSB should be in the business of policing good taste. One can say the most anodyne things and cause offence in the twitterverse. This is not misconduct. I don't subscribe to the "call everyone a snowflake" school of thought which says we should be gratuitously offensive because we can, but the focus needs to be on "the public" (i.e. the notional public) on whatever is the modern day equivalent of the Clapham Omnibus, not on the oversensitive individual who is offended by everything. Some of the very best legal bloggers say things that are controversial or that are offensive to some. They are fiercely independent and articulate their positions with care and with skill, but with great force. That some will disagree or be offended, or that their posts will spark the most vehement of debates is no marker of misconduct. It is something to be proud of.

Apparently the BSB either don't read my blog (*gasp*) or didn't rate my super wise advice on these issues. Shame.

Anyway, back to those headlines about the suspended barrister. The initial report (Gazette) gave little away, because the BSB hadn't yet published the actual findings. The Times later published more detail and focused on the Thatcher remarks. Good headline material I guess. But, you will be entirely unsurprised to hear, not in fact the full or even the main story. The disciplinary findings (no, The Times didn't link to them) set out what this barrister said and they make pretty grim reading. So no, I don't think this is an illustration of the BSB jumping on barristers for becoming involved in heated debates. It is an example (subject to appeal) of the BSB taking action in response to grossly and gratuitously sexually offensive and derogatory posts.

We have probably all heard the line that you should never put anything in correspondence you would be embarrassed to be read out in open court before a judge. It's really very simple. Apply exactly the same approach to your social media. I wouldn't be embarrassed for a judge to know I had a sense of humour and swore sometimes but as a rule of thumb I'd say this still holds as a good guide. Or, if you prefer, you can take the ever so classy tip I offered in one of my earlier posts : just don't behave like a pillock* (you're welcome).

And also, subscribe to Pink Tape. The answers to life, the universe and everything** are here.

 

*ooohhhh, I just googled the word pillock just to check it didn't have some lewd meaning that might get me disbarred. Apparently it means penis....Who knew? Anyway, since I first offered my wise pillock guidance in March 2017 and have not received a notice of prosecution to date, I think that I'm probably safe...

**exceptions apply

 

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