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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?

Richard Miles of Gray’s Inn has been a barrister since 1997. For younger readers, at that time, the coolest mobile phones were Motorola's StarTac which looked like a Star Trek communicator until the wire connecting the screen in the flipping cover to the keypad broke which didn't take very long at all (the previous generation, the MicroTac was very robust but but hardly a style icon). People carried (and habitually lost) a "Personal Digital Assistant" or PDA which did not mean kissing in public and Web 2.0 was something talked about only in the most theoretical terms. But there was still discourse on the very nascent internet in "chat rooms" on various systems such as Compuserve and American On Line (which still had an actual name, not merely a set of initials for something that eventually would become irrelevant). It would still be seven years before Harvey Andrews would release The Pocket Song containing the immortal lines "Now my boss is in my pocket and he'll never go away
He tells me that I have to keep my mobile on each day." MySpace was still six years away, twitter nine years. It would be seven years (2003) before Facebook copied UK website Friends Reunited (1998) and Friendster (2000) which continued to beat Facebook in South East Asia for some years after the launch of the latter.

Barristers have always gossiped. The total inability of the braying class to keep their voices down while trying to impress ruddy-cheeked pupils in Dalys opposite London's Palace of Justice has long been a source of information for hacks prepared to make the short walk along Fleet Street (a facility now negated, to a degree, by the migration of newspaper offices to the Isle of Dogs and its environs or "The Dev" (The Deveraux") where slightly more discreet conversations and negotiations took place or the fantastically indiscreet Wig and Pen. Those wanting to make sure their conversations were overheard would head for El Vino's if they wanted to meet solicitors for marketing the old Harry's Bar in Ludgate Hill (now removed into Abchurch Yard in the heart of the City or the Seven Stars by the back door of the Court which only regulars could find their way out of and which was historically the nearest watering hole for the Bankruptcy Court (hence the expression to find oneself in Carey Street) and the Solicitors' Disciplinary Tribunal and - just for the sake of completeness - what might be (have been?) the last Victorian Pissoir in England.

So, being called to the bar in 1997 was to arrive on the cusp of a revolution in communications. Fast forward twenty years and today's normal was then the stuff of science and social fiction and The Bar Council's reglatory function is now in the hands of The Bar Standards Board which doesn't use "The" in its logo even though it's in its name and has one of those stupid little slogans, in this case "Regulating Barristers," which plague government departments and official bodies. Then again, with all the reforms which have de-professionalised the legal profession, it is inevitable that all legal regulators lack the gravitas that policing lawyers should exhibit, along with a tendency to use English in a way that makes sense only if one applies their particular interpretation. And so a barrister who is a member of the bar can be "unregistered," which is clearly not what "Unregistered" means. For solicitors the equivalent term is "non-practising," which makes far more sense. In each case, the non-practising person is still a member of the profession and therefore bound by its professional rules other than those which relate to practice. And that makes sense because, at least until recently when the profession became the plaything of those engaged in social engineering, the rules were a reflection of a gentlemany and lady-like conduct in general life.

But let's put this into perspective: any barrister who is not using some form of social media, which includes chat apps such as WhatsApp, Viber, WeChat, etc. because of the possibility of publication by recipients, is out of touch, literally. While the principles have not moved on from the introduction of SMS (the first was a test in 1992 but it did not take off until the introduction of the One-2-One service, by Mercury, Cable and Wireless's mobile division, in about 1995 that it really took off because Mercury offered free SMS within its own network outside the usual commute-business-commute timeband. It was also the first fully digital mobile network. While the growth of messaging apps (the three listed above are US, Israeli and Chinese respectively), SMS has not only not died, but it has thrived, especially now that it has become the backbone of authentication systems for financial transactions.

Why does this history matter? It's simply that it is impossible to accept that operating any independent business is next to impossible without some access to some form of social media, in either the narrow or broader definitions.

Richard Miles was suspended more or less contemporaneously with the new guidance being issued. He posted in a public forum on Facebook "offensive and disparaging" remarks, violent and sexually abusive, about someone referred to as "a member of the public." He may against the decision to suspend him for ten months. As of today, the register (https://www.barstandardsboard....) shows no contact information for him and the full decision has not been published.

It's a cautionary tale that goes well beyond the bewigged branch of the legal profession in England and Wales.

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