The Bar Standards Board (BSB) is to review its approach to policing barristers’ conduct outside of practice, Legal Futures can reveal.
There have been several recent cases involving both barristers and solicitors where the question of the extent to which regulation covers the private actions of lawyers has been under scrutiny, particularly in their use of social media.
Some of the core duties and rules in the BSB Handbook – such as Core Duty 5 (CD5), not to “behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession” – apply to barristers at all times and not just when they are practising.
A BSB spokesman explained: “Our review will look at how these duties and rules apply and consider questions such as whether any new guidance is needed or whether any existing guidance may need updating.
“One example of this would be our social media guidance, which we expect to review as part of this project.”
The issue came before the High Court recently, when it upheld the reprimand and fine issued to a barrister who sent a “seriously offensive” tweet in a private capacity that was “racially charged and derogatory to women”.
Mr Justice Warby said the question facing a panel in a case under CD5 had to be assessed on the basis of the facts of the individual case.
“The range of factual scenarios that could properly raise such a question has no theoretical limits. Some public conduct may be too trivial to satisfy this requirement. Some private conduct may clearly cross the line. Some conduct may be hard to categorise as either public or private. A panel will have to evaluate the conduct in all the circumstances.
“It cannot be necessary for a barrister to be immediately or readily identifiable as such, before a charge under CD5 can be brought or made out.”
A factor in that case was that the barrister’s Twitter profile linked to his website, which said he was a barrister – the ease with which a lawyer can be identified as such is often important in such cases.
Last year, a leading regulatory QC argued that the Solicitors Regulation Authority was wrong to sanction a senior finance partner at City giant Hogan Lovells for discriminating against his children’s pregnant nanny.
Greg Treverton-Jones QC said: “In their private lives, solicitors may do all sorts of things that might be regarded as unwise, or worse, without having to report themselves to their regulator.
“What of a solicitor who fails to pay a builder for work carried out to the solicitor’s private house, such that the builder has to sue in the county court? What if the solicitor defends the claim on a spurious basis to put off the day when he has to pay up? What of a solicitor who defames somebody? Or a solicitor who sells a car which he knows to be defective and is successfully sued?
“The list is endless. What is it about the unfair sacking of a nanny that brings this within the purview of the regulator?”