Lawyers, Twitter and the Chilling Effect

One of the earliest legal adopters of Twitter in the UK was the person behind the account @GeekLawyer, who gave a colourful account of the life of a barrister in the South East of England. For many years followers of @Geeklawyer were entertained by some ribald commentary and banter; just the sort of thing that makes Twitter attractive for some. Whether or not @GeekLawyer was a fictional lawyer was not a concern.

Matters changed last week, when the very real David Harris was brought before the Bar Standards Board on a number of charges, which included a charge that he had ‘engaged in conduct which was likely to diminish public confidence in the legal profession… via the internet site “Twitter” and using the pseudonym “Geeklawyer”….’ The decision of the BSB was published on 26 January 2012 (here), which showed that David was fined £2,500 for what was ruled to be his inappropriate use of Twitter.

Understandably, given that the messages/tweets to which the charge related were not originally published with the decision, this caused a certain flurry of interest and concern within the legal twittering community. Some have focussed on the point that lawyers cannot expect to hide behind anonymous accounts (eg The Time Blawg), but the other concern must be the approach that lawyers’ regulatory bodies will take to the normal exchanges on Twitter.

Both the Bars Standards Board and Solicitors’ Regulation Authority have similar public confidence in the legal profession provisions in their Codes of Conduct.

The Bar Standards Board Code of Conduct states:
Applicable to all barristers
301. A barrister must have regard to paragraph 104 and must not:
(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(b) engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practising barrister prejudice his ability to attend properly to his practice.

The Solicitors’ Regulation Authority Code of Conduct includes a set of core principles. Principle 6 (and the SRA note upon it) states:

Principle 6: You must behave in a way that maintains the trust the public places in you and in the provision of legal services.

2.10 Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but also the ability of the legal profession as a whole to serve society.

Clearly, the issue here is the interpretation that will be placed upon these provisions by the regulators. Solicitors looking for guidance can only turn to the Law Society’s Social Media practice note published on 20 December 2011 (here). However, in the context of the SRA Principles and where the dividing line may be between critical communications and behaviour that undermines public trust, the practice note is of little assistance.

The danger is that lawyers may consider the risks of going over the line are too great, and so withdraw from public debate; the so-called chilling effect. Even if individual lawyers may be confident of their use of social media, compliance officers at law firms may be more circumspect.

To give a concrete example, I and many others were highly critical of the charging, prosecution and conviction of Paul Chambers as a result of his tweet about blowing up Doncaster Airport in January 2010, which criticism continued when his appeal against conviction failed. It could easily be argued by an over-zealous regulator that such volume of criticism from lawyers who, until the case is heard at Court of Appeal, could be considered to be ‘wrong’, undermines the public’s trust in the legal profession to apply properly the will and intention of Parliament as set out in the relevant statutory provision. In the so-called Twitter Joke Trial case, many of us consider that section 127 of the Communications Act 2003 was used completely inappropriately to prosecute Chambers.

I would hope that a sensible approach continues to be adopted, so that lawyers on Twitter or who use other forms of social media are not deterred by the Harris decision from sensible debate; there is a contra-argument that it does not serve the profession at all for lawyers to retreat from the public domain.  Harris, after all, was NOT disbarred for tweeting.

This still leaves a couple of nagging questions:

  • How far should regulators consider the behaviour of lawyers when considering the reputation of the legal profession – the SRA guidance can be interpreted in a very strict manner: “Any behaviour either within or outside your professional practice…”? What exactly does that mean? Do we have to maintain a public façade of completely exemplary behaviour on Twitter and elsewhere? No more swearing or name-calling please, particularly of other lawyers? No more admitting to feeling the worse for wear after a good night out? No more expressions of frustration with a difficult client? etc etc
  • To what extent should regulators be concerned with fictional accounts? Admittedly the BSB reports suggests that the @geeklawyer tweets relate to actual behaviour, but what if they were entirely fictional? The tweets themselves do not identify an actual case, court, judge or lawyer (other than mention Chancery). What if the @geeklawyer tweets were entirely fictional, even if parallel to an actual case? Is it the role of regulators to police anything said about the legal profession?  Does this approach preclude practising lawyers from being involved in any fiction concerning the legal profession, if that fiction can be considered to be anything other than flattering to it?

The Chilling Effect

One of the many arguments put forward by opponents to freedom of information access is that the potential disclosure of information relating to the formation of public policy will inhibit free and frank discussions – the so-called chilling effect.

This argument is often invoked when Government departments seek to rely on the exemption at section 35 of the Freedom of Information Act 2000.  Section 35(1)(a) provides that information is exempt from disclosure if it relates to the formulation or development of government policy, but the exemption is qualified.  This means that the exemption can only be applied if the public interest in disclosure of the relevant information does not outweigh the pubic interest in the information being withheld by the relevant public authority.

To see this work in practice, look up the recent Information Commissioner’s Decision Notice to the Department of Health.  In the Notice, the Information Commissioner considered the chilling effect argument, but in that case came to the view that the public interest in accountability and transparency for the Department of Health’s decision making, with the Department having to provide reasoned explanations for its public health guidance, meant that disclosure was ordered.

The request asked for information relating to the Department of Health’s guidance that women who are pregnant or trying to conceive should not drink any alcohol.  Thinking of possible real-life chilling effects and a pre-conception alcohol ban, we cannot help being reminded of a silly country song from the ’70s, whose chorus went:

If they had one when all our dad’s were young men,
Most of us wouldn’t be here tonight!