When I began using Twitter back in the dark ages (2008) I was seen as somewhat kooky. Twitter back then was populated largely by IT geeks and beardy creative types – and certainly not lawyers. A few of us early adopters (‘blawgers’ as we were cringingly called) remain. But we are now not such oddities because lawyers are on Twitter in their thousands and legal Twitter is a thriving community that connects the legal world to the wider public. A search on Followerwonk.com for Twitter accounts with the keywords lawyer, barrister or solicitor in their profiles and who state they are located in the United Kingdom (or England, Wales, Scotland or Northern Ireland) produces 13,011 accounts as at 17 August 2018.
So it is not surprising that the regulators of the professions report an upturn in complaints about barristers and solicitors arising from their use of social media. In February 2017 it was reported that the Bar Standards Board (BSB):
‘receive[s] an increasing number of complaints each year about comments made by barristers on social media. This often involves the PCC considering the boundaries between professional and personal life as well as freedom of expression. Many of the complaints are dismissed as being legitimate expressions of opinions. Even though the comments may be offensive to some, or indeed many, as a regulator we need to balance our regulatory reach with barristers’ rights to express their views.’
The BSB noted that:
‘… as social media and the internet become more prominent in our daily lives, there is an increasing need for barristers to be very careful about what they post whether in their professional or personal lives.’
Shortly thereafter the BSB issued guidance for barristers on their use of social media.
Later in 2017 there were similar news reports about a ‘surge’ in complaints about inappropriate communications by solicitors, and the Solicitors Regulation Authority (SRA) said: ‘Public confidence in the profession is undermined by offensive or inappropriate communication and the misuse of social media can be a real problem.’ The SRA also issued guidance on the use of social media to those under its umbrella.
What’s the scale of the problem?
It is difficult to get a true sense of how big an issue this really is because the BSB’s published complaints statistics do not obviously bear out the implication that this is becoming a frequent issue for the BSB complaints team, and in any event there is some lag between actions and sanctions and the publication of statistics. The BSB’s Statistical Enforcement Report for 2016/17 (the latest available) shows an increase in complaints made relating to social media use from the staggering total of 3 complaints (2 external and one raised by the BSB of its own motion) in 15/16, to the even more staggering total of 4 complaints in 16/17. It is possible that complaints identified under other headings (where the statistics are significantly higher) may in fact relate to social media use, but overall the numbers of complaints falling under such headings was down between 15/16 and 16/17. Ultimately, the scale of the increase in complaints remains opaque, but even on a worst case scenario is probably at a comparatively low level. Findings of professional misconduct or disbarring arising from social media use are very rare, and are far less prevalent than disbarments or sanctions for dishonest or fraudulent conduct of one sort or another. Where social media use does get lawyers (in both branches of the profession) into trouble it seems to fall into two categories:
A large proportion of cases involve comments which have been offensive to religious groups or ethnic minorities, and/or have been potentially discriminatory. There are examples of both regulators treating this type of conduct as bringing the respective professions into disrepute/to be likely to diminish public confidence in the profession.
A second theme is lawyers getting into difficulty stepping over the mark when selling their services, whether dishonestly or inappropriately.
As regulated professionals it is important to remember that the Code of Conduct applies to our behaviour both in court and in our personal private lives, particularly so when we are identifiably a member of the Bar. The BSB cannot curtail our freedom of speech and stop us publishing whatever we like. But it can stop us from practising at the Bar if we get it really very wrong.
Judging from published disciplinary decisions and news reports, professionals across the board have found themselves in hot water for getting it wrong over the last few years:
- In 2012 David Harris (@geeklawyer – one of the early adopters of legal Twitter) was disbarred for (amongst other things) calling opponents ‘slimebags’ on Twitter.
- In 2016 barrister Ian Millard was disbarred for sending anti-semitic tweets.
- In 2016 solicitor-advocate Alan Blacker was struck off for his false LinkedIn CV.
- In 2017 Michael Wolkind QC was fined for boasts on his website, including that he was so good that he ‘could get Stevie Wonder a driving licence’.
- Others reprimanded or disciplined include solicitors, coroners, magistrates and social workers.
So what does the BSB/Handbook actually say?
Gc22 note to the Code of Conduct says:
‘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.’
"Such is the power of social media that a tweet thread started by a family barrister in the summer about the insensitive listing of adoption hearings led some two weeks later to the issue of revised guidance by the President of the Family Division. The senior judiciary may not be tweeting but they are watching..."
The BSB Media Comment Guidance says little about social media:
‘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.
The BSB’s 2017 Guidance for Barristers Using Social Media doesn’t add much more. It reminds us that our code duties apply and may be engaged when we are active on social media. It reminds us in particular that CD5 (the duty not to behave in ways likely to diminish the trust and confidence which the public places in the Bar) applies at all times. Other than an incongruous reference to the dangers of geotagging as a vehicle for inadvertent confidentiality breaches, there is little in the way of specific practical or technical advice. I would suggest a more pressing and widespread confidentiality issue is the tendency of lawyers to post comments about their cases which, although unidentifiable to most people, would most likely be immediately identifiable to others involved in the case by virtue of the timing of the post.
The Law Society practice note on the use of social media is more detailed and practical in nature, and covers many analogous issues, but is currently under review.
It would be helpful to have more detailed practical guidance, covering such issues as privacy settings and explanations of who sees what on different platforms and in different contexts, and the data protection position in respect of social media profiles that are (quasi-)professional in nature, which may be susceptible to subject access requests. Apart from ensuring that you have a reasonable grasp of how social media actually works before dipping your toe in (or putting your foot in it), all one really needs is to keep in mind that your core duties are as real here as they are in real life.
In addition to CD5, the most relevant core duties are:
CD2 – act in the best interests of each client
CD3 – act with honesty and integrity
CD4 – maintain your independence
CD6 – keep the affairs of each client confidential
CD8 – do not discriminate unlawfully against any person
Parody-not-parody? The risks of anonymity
No part of the Code of Conduct ought to prevent us from engaging with the rest of the world through social media, but we need to remember that even when tweeting (or on any other platform) in a personal capacity we could be hauled over the coals for a breach of CD5, where the barrister is or becomes identifiably a barrister.
I made a decision when I started blogging and tweeting not to conceal my identity. However, the number of anonymous and parody-not-parody legal accounts has grown exponentially in the last year or so. Those who use social media anonymously should be mindful of the potential consequences of their identity becoming known – those who draw attention to themselves from behind an avatar or pseudonym by tweeting controversial material, could find that the consequences of being discovered could cause reputational damage or be disciplinary in nature. Barristers who also hold part-time judicial office should be mindful of the guidance issued for judicial office holders, which does not bar the use of social media, but does prohibit the identification of oneself as a judicial office holder on social media.
Ultimately, though, a professional who behaves online as they would in real life is unlikely to bring their profession into disrepute. Nor does it diminish public trust and confidence to be identifiably a normal human being, who sometimes swears and says dumb things, who does ordinary stuff outside of court, and who doesn’t talk on Twitter as if they were addressing a judge. And those who get the most out of social media and who give the most to the legal and wider communities do all of those things. Candid, cross, brutally honest, human, fallible lawyers have contributed to #thelawisbroken, to debate around #metoo and disclosure failures, have highlighted the impact of legal aid cuts, have driven the Behind the Gown, Judicial bullying and Wellness campaigns, have helped desperate or confused litigants in person source support, have nurtured new entrants to the profession and one another at times of acute crisis. And cross lawyers engaging with the bravely tweeting CEO of HMCTS on social media have driven the creation of the recently announced ID card pilot to smooth the way into court in the mornings. Thank goodness legal Twitter is about so much more than regurgitated marketing emails.
Twitter and other social media platforms are a great resource for camaraderie and morale boosting, CPD and sourcing of niche legal knowledge, for making connections across specialisms and professions and for marketing. All of those are advanced by being a nice human being not a robot, and by being willing to learn from those who hold a different perspective from your own. Although it is marred by trolls and nastiness on occasion, Twitter is full of robust challenge and energising debate, which can both benefit the lawyer who is brave and open enough to engage, and which can positively promote the public’s trust and confidence in the profession and the legal system. Legal bloggers and tweeters have become a mainstay of public legal education in this country, and lawyers too can learn from the court-using, tweeting public. Such is the power of social media that a tweet thread started by a family barrister in the summer about the insensitive listing of adoption hearings led some two weeks later to the issue of revised guidance by the President of the Family Division. The senior judiciary may not be tweeting but they are watching.
Will I be embarrassed to read this tomorrow?
So. My guidance to the profession? Go to social media ready to learn, and not just from other lawyers. When on social media, exercise the good judgement that got you into the profession in the first place. There is nothing wrong with being a fearless advocate on social media. But ask yourself: ‘Will I be embarrassed to read this tomorrow?’ If you aren’t sure, sleep on it. Ask yourself: ‘Would I say this to their face?’ If the answer is no, don’t say it. If someone wilfully misinterprets what you’ve said make one attempt to explain and then walk away. If someone is determined to be offended walk away. And if you mess up say sorry. Straight away.
Lucy Reed is a barrister at St John’s Chambers and tweets as @familoo. She is the author of the Pink Tape blog, which has been running since 2007.