Legal regulators clamp down on keyboard warriors
Legal professionals, like virtually everyone else, have been spending much more time at home recently. On the whole the industry has adapted well, but it has led to very large numbers of lawyers (who are typically quite articulate, often opinionated types) sitting alone at home for long spells, often scrolling through the daily news in between their tasks. Bereft of colleagues, it seems the ‘water cooler ’ or indeed the ‘robing room' chat has been replaced, to some extent, by comments and posts on social media. Sometimes, it seems comments might be posted just after a refreshing beverage at the end of a trying day.
Lawyers who publicly express their opinions, particularly when addressing sensitive topics or contentious individuals, can land themselves in trouble. Sometimes such discourse can lead to alarmingly frank outbursts, escalating into vicious and offensive exchanges – neither of which the writer would ever say face-to-face.
Naturally, this danger was not created by the pandemic, but it has certainly been exacerbated by it. Both the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) have beefed up their social media guidance within the last two years.
The SRA's guidance, which can be found here.
The list of aggravating features listed on the SRA's guidance ought to provide a check on those who are trigger-happy with colourful language, personal put-downs, or stereotypical myths. They apply where the publications:-
• demonstrate dishonesty, discrimination, harassment or abuse, are targeted at or take advantage of vulnerable individuals, or
• demonstrate a lack of integrity or independence or undermine the rule of law
The SRA warns " [it] will impose serious sanctions where the communication involves aggravating features. These types of communications will generally be referred to the Solicitors Disciplinary Tribunal"
As an aside, precisely what is meant by a "vulnerable individual" is not clear. Is an individual ‘vulnerable’ simply because they are exposed to public comment? After all, on certain platforms, this would make everybody vulnerable. Is a 19 year-old England penalty taker deemed vulnerable? Does it make a difference if the individual is a professional who courts public opinion or public attention for a living? Perhaps a Secretary of State whose marriage is breaking down after his affair was publicly exposed? Or an Instagram influencer who is publicly writing about her abortion for the first time?
Whatever the circumstances, in May 2019 Edward Nally, then Law Society President reminded solicitors that they remain solicitors, even when not at work:-
"If I’m doing the shopping on a Saturday and I’m wandering around Tesco, it may be the last thing on my mind but I’m a solicitor when I’m going down the grocery aisle. But if I decide to shoplift, I should expect professional consequences alongside the rigours of criminal justice.”
This makes logical sense. One cannot wear different hats as a way of avoiding responsibility for comments posted online and available to the public, particularly where the post or the author’s title or ‘Bio’ indicates they are a lawyer. The effect is that the author, whether they intended it or not, is taken by the public to represent the typical legal professional. Mr Nally went on:
“So if you go onto Facebook or Twitter or the media venting your spleen freely in a rather unattractive and unpleasant or downright illegal way in terms of some of the content, then just be careful because you cannot do those sort of things with impunity.”
Tribunal decisions against solicitors
In 2018, Deborah Daniels, a solicitor of 32 years call, was suspended from practice for 18 months and ordered to pay £11,000 in costs for a series of alarming Twitter rants expressing hostility towards Islam, Judaism and Catholicism, including suggestions that Islam was a “sexist cult”, and that Muslims ought to be put to work in a camp and “educate them or get rid”. On separate occasions, she responded to the deaths of Palestinian children by retweeting anti-semitic tropes about a Jewish global conspiracy to control the world. She also wrote offensive tweets about the sexual abuse conducted by member of the Catholic church. It appeared as though Ms Daniels was responding to events by ‘venting her spleen’ in perhaps what Mr Nally had in mind during his 2019 comments.
Even a large dose of provocation is not necessarily a defence. In 2018, high profile media lawyer Mark Lewis was fined £2,500 for misconduct and ordered to pay £10,000 costs for repeatedly wishing death on people who had subjected him to anti-semitic abuse online. That abuse included death threats and images of Mr Lewis’ face superimposed on the crematorium at Auschwitz. Mr Lewis developed a habit of responding with messages such as “Whatever. Just hurry up and die. I’m going to bed”, and “Yes you are a Nazi scum and yes I’d be delighted if you die”. There was also one exchange with a Facebook acquaintance who was not sending anti-semitic abuse, but inferred that Mr Lewis was not doing a very good job of helping his community. Mr Lewis, whilst under the influence of strong medication, also wished death on this person, adding “Your dad… should have worn a condom”. This post was deleted just five hours later, and Mr Lewis also apologised.
With early or even pro-active engagement with the SRA, an honest explanation, mitigation, cooperation and apologies to those affected, it may be possible to avoid referral to the Solicitors Disciplinary Tribunal (SDT). One possible outcome falling just short of referral is a Regulatory Settlement Agreement (RSA). Although such an outcome is published on the SRA's website, the public exposure is somewhat limited. There is no automatic publication in the Law Gazette, for instance, and the mainstream press is less likely to pick up the story.
The Bar Standards Board (BSB) also outlined their own guidance on inappropriate use of social media in late 2019. This can be found here. The principles are similar to those at the SRA, but the tone is rather less draconian. Barristers are asked to bear the guidance and advice in mind, such as the advice not to ‘locate’ oneself at a particular court for fear of inadvertently breaching client confidentiality, not to get involved in heated arguments on social media, and to take care to always act with honesty, integrity and not to unlawfully discriminate.
The Bar have had their own share of social media offenders although typically the outcomes seem milder than the solicitor’s regime.
In Diggins v Bar Standards Board  EWHC 467 (Admin) a barrister called Martin Diggins was unsuccessful in his appeal against the BSB’s decision to fine him £1,000 for misconduct. In this case, a young black female student had called for the ‘decolonisation of English degrees’ at Cambridge University. Mr Diggins tweeted in response “Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy the academic reputation it has taken aeons to build”. Mr Diggins appealed on the basis that, as a non-practising barrister, his tweet was outside the scope of the BSB's remit. Mr Justice Warby (as he then was) held there was no such line between that within the private realm, and that which was sufficiently public to engage disciplinary action. It was pointed out that Mr Diggins’ Twitter handle identified him as a barrister. Indeed, given Mr Diggins' specifically targeted, sexist and racist language on a public platform, it seems lenient to impose only a £1,000 fine in the first place.
In June 2021, a Family Law barrister Joanna Toch was temporarily suspended by her own Practice for a Twitter exchange starting with “No Doria? Don’t black names matter?”, in response to the Duke and Duchess of Sussex naming their new daughter Lilibet. Ms Toch was encouraged by a similarly offensive tweet from then Telegraph columnist Julie Burchill: “was hoping for Doria Oprah, the racist rotters”, to which Ms Toch replied by jokingly suggesting the name “Doprah?” Mr Toch later apologised and was then re-instated to her role at the Family Law Cafe. As of early July 2021, she claims not to have been contacted by the Bar Standards Board.
Anonymity and the ‘representation effect’
The use of anonymity will be no defence, and indeed the lack of identity might even enhance the impression of being an unofficial spokesperson for the profession. Where their Principles have been breached, regulators are apparently specifically looking to unmask anonymous commenters who identify themselves as lawyers. Therefore any stated reference, bio, or handle identifying someone as a practising lawyer is key. An anonymous lawyer can disclose stories and experiences that a named lawyer might not reveal for fear of indirectly breaching confidentiality. The effect may be that more followers are drawn to an anonymous blogger. So, rather than being ‘Bill from Ramsgate’ whose profile shows he happens to be a solicitor, an anonymised profile set up solely as a legal commentator with a viewpoint has the effect of enhancing this ‘representation effect’. This is not necessarily a problem, of course, unless the professional rules are deemed to have been breached.
Freedom of expression
Despite this, professional regulation is not necessarily an interference with free speech. Lawyers remain free to publicly state their political opinions, and many frequently do. Of course, whether that makes good commercial sense is a decision for them, and perhaps their employers. For example, it might not be commercially wise for a corporate finance lawyer to join a Communist organisation and start publicly claiming that 'property is theft'. In the same way, it might not be sensible for a prominent human rights lawyer to start tweeting the virtues of Priti Patel. Taking these positions may not impress the potential clients of either lawyer. However, both are perfectly legitimate political opinions and regulators should not become involved. In these examples, free speech is not curtailed by the professional regulators, but by the chosen career path of the individual.
However, keyboard warriors beware; your professional obligations remain high, even when your inhibitions are lowered.
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Articles are intended as an introduction to the topic and do not constitute legal advice.