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England and Wales. Barristers: free speech curtailed?

Nigel Morris-Co...

New professional standards for barristers in England and Wales - are they a reminder of long-established principles or a gag?

"We recognise that you are likely to want to use social media for a variety of private and professional reasons." So starts the Guidance issued by the Bar Standards Board. And it starts with a further recognition: that the internet is not a place but it is a very public arena "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. "

It is important to note that only "Authorised Practising Barristers" are allowed to practise in England and Wales. The Bar Standards Board says "Unregistered barristers and barristers who have been disbarred are not on the Register as they are not allowed to practise. But you can still find out whether they have had a disciplinary finding." (grammar as per website). That matters because the BSB says "Unregistered barristers should also bear this guidance in mind when using social media; as members of the profession, they are expected to conduct themselves in an appropriate manner and are also subject to certain Core Duties and other rules."

Core Duty 5 of the BSB Handbook, which is the practising manual and rulebook for members of the bar in England and Wales, requires places a negative duty on barristers: they must "not to behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession at all times." The grammar is awful, the import is reasonably obvious.

The Social Media Guidance found at https://www.barstandardsboard.... says "

Social media use includes posting material on-line, sharing content, promoting your business as a barrister or networking. This might be on sites such as Twitter, content communities such as YouTube, social networking sites like Facebook or LinkedIn and Internet forums.

Comments designed to demean or insult are likely to diminish public trust and confidence in the profession (CD5). 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.

You should also bear in mind your duty to keep your client’s affairs confidential(CD6). It is inadvisable to send confidential communications to your client over social media. You should not do so unless your client has agreed and you are satisfied that your client's confidentiality will not be at risk. If your client does wish to be contacted in this way, you will need to consider not only the security of the system that you are using, but also its privacy policy. Some host sites allow the host to access otherwise private information, despite it not being posted to the client's public facing "wall" or "blog".

You may also want to consider less obvious risks; for example, by advertising the fact that you are in a particular location at a particular time (perhaps via a "geotagged" status update), you may risk inadvertently revealing that you act for a particular client.

In passing, almost, the Guidance includes a side-swipe at social media sites which may "snoop" on supposedly private messaging. Given that this is the norm, including e-mail services which the Guidance does not mention, it is clear that there should be far greater awareness - even beyond the legislative data protection measures in, for example, GDPR - of what information is accessible by third parties.

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