When Simone Burns was prosecuted for an air rage incident in which she ranted and spat at crew who refused to serve her more alcohol on a flight from India, none of the newspaper reports failed to mention the fact that she was a “human rights lawyer”. Online editions of the reports even included video footage of the incident, which had gone viral on social media. Burns pleaded guilty and was sentenced to six months’ imprisonment for the offence, but after being released on licence, hounded and harassed and forced to go into hiding, she eventually took her own life.
The case represents an extreme and indeed tragic example of conduct in private life which a regulator would be bound to find had brought the person’s profession, in this case the Bar, into disrepute. Under their Code of Conduct (as set out in the Bar Handbook, October 2019 edition, Core Duty 5), barristers “must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession”.
A more recent incident, which also involved a criminal conviction, occurred in the unlikely location of the Royal Opera House in London. An altercation occurred during a performance of Wagner’s Siegfried after Ulrich Engler climbed across into a better seat than the one he had paid for, in the process moving a woman’s coat that had been on the empty seat, and prompting the woman’s partner, Matthew Feargrieve, to object.
Although initially it was Engler who was arrested and taken to a police station, it was Feargrieve who was subsequently charged with and convicted of assault, having been found to have punched Engler several times. Again, newspaper reports did not fail to mention the fact that Feargrieve was a barrister. Although he has yet to be sentenced, with this criminal conviction he may find himself unable to continue practising, at least for a while.
The question whether Jo Maugham QC committed any criminal offence when, on Boxing Day morning, he clubbed a fox to death, was the subject of a post later that day by BarristerBlogger, Matthew Scott. (Should Jolyon Maugham be prosecuted for bludgeoning a fox to death? Scott thought not, though he identified statutes under which the RSPCA, if so minded, might do so.) But the fact that Maugham had tweeted about the incident led to, first, a twitterstorm of comment and conjecture, and then to press reports both in the UK and abroad.
Maugham’s initial tweet (“Already this morning I have killed a fox with a baseball bat. How’s your Boxing Day going?”) was ambiguous and could be read either as an ironic expression of weary exasperation, or simply as a callous boast. Many assumed it was the latter (the fact that Boxing Day is traditionally a big day for fox hunting didn’t help).
Later tweets explained that the fox had become entangled in netting designed to protect Maugham’s chickens and that the fox was distressed and he sought only to put it out of its misery without further endangering himself or his livestock. He also reported the incident to the RSPCA. But by then the reputational damage was done.
Scott’s opinion is that Maugham should not have tweeted about it. Another barrister suggested that the way Maugham had tweeted about it was itself conduct likely to bring his profession into disrepute. Whether or not the underlying vulpicide was conduct unbecoming his professional standing, tweeting about it could hardly fail to make it worse (sometimes you can have too much transparency).
Twitter and other social media platforms are a source of danger from the professional conduct point of view, which may be why the Bar Standards Board keeps revising and reissuing its social media guidance. As the BSB advice points out, “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”. That advice is primarily directed towards the barrister’s use of social media rather than the effect of social media in amplifying other unbecoming conduct, but the Maugham case demonstrates that this may also be a problem for the profession and something likely to engage Core Duty 5.
Disciplinary cases involving misuse of social media are not uncommon, but perhaps not as common as might be expected. There are lots of barristers and solicitors on social media, and in keeping with their lawerly vocation they are liable to argue fiercely on issues about which they feel strongly. Most of them are polite and respectful in the way they do so. Some are not. But no one is expected to adopt the formal courtesy of the courtroom when engaging in a twitter spat. That would be ridiculous. However, threatening or abusing behaviour can amount to a criminal offence, for example as a form of harassment. There is also the risk of defamation.
Given that many lawyers join Twitter in order to promote themselves professionally (adding QC to their name if possible), it is all the more important not to damage that reputation by conduct liable to bring the profession into disrepute or, in the wording of Core Duty 5, “diminish the public’s trust and confidence” therein.
Perhaps, though, it is not the most egregious or outlier conduct that does most to diminish the reputation of the profession as a whole, so much as a general tendency on the part of tweeting lawyers, particularly barristers, to sound pompous and superior even on matters outside their professional domain. This is something the profession as a whole might do well to think about, according to barrister Lucy Reed, who in a recent blog post pointed out:
“We perform a public service when we provide legally accurate information, corrections and explanations, help people to appreciate the legal nuance and complexity where they would prefer to see simplicity and clarity. But when we do so must we be so gleeful, so irritating, so oblivious to the impact of our interventions, to the basic psychology that says the way you intervene affects the way people are likely to respond? Must we shred everyone in the process of making a point?”
The BSB advice points out that “comments designed to demean or insult are likely to diminish public trust and confidence in the profession”. Might that apply not simply to the occasional rude put-down in the midst of a Twitter spat, but to the whole tenor of communication of the profession’s members? As Reed suggests:
“2019 has taught me that the focus really should not be on ‘will I get disbarred’?, not least because the answer to that is very plainly ‘almost certainly not’. But I am fed up of watching colleagues trash our reputation by behaving like massive clever dicks all over social media.”
A cautionary thought, perhaps, as we enter a new decade.