When should the Bar Standards Board take an interest in what barristers are saying on social media or in what they are doing outside their practice as a barrister? Some rules and duties in the BSB Handbook apply to barristers at all times, but how should we balance those obligations with the rights that barristers have under the Human Rights Act?

The BSB has recently been considering these difficult questions and last year we conducted a public consultation which focused on two proposed guidance documents: one on conduct in non-professional life and the other on the use of social media. We wanted to undertake this review because we felt that the current guidance contained in the BSB Handbook relating to non-professional life was too narrow and that the separate existing social media guidance did not clearly set out how we seek to consider cases bearing in mind both the rules and duties of the BSB Handbook and a barrister’s rights under the Human Rights Act.

We have now published a summary of the responses to the consultation which we received. The responses show that these issues clearly divide opinion, but we have carefully taken every response into account in finalising the two documents which have now been issued: the Social media guidance Social Media Guidance and the Guidance on the regulation of non-professional conduct along with related revisions to BSB Handbook guidance.

These guidance documents do not mark a radical change in our regulatory approach, and we are not seeking to introduce new rules or duties. They simply clarify how the BSB sees the existing rules applying and how we try to balance those rules with human rights considerations, including the right to respect for family and private life (Article 8), freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10). This is an increasingly topical issue in relation to the use of social media: during 2022-23 the reports of potential professional misconduct involving social media which we received rose to 102 (involving 41 barristers) – there were only 12 such reports in 2018-19. Meanwhile, the number of cases closed which related to conduct in non-professional life rose from 192 in 2021-22 to 215 in 2022-23.

I hope that all barristers, and those making reports about barristers, will read the documents in full, but I should like to make three key points:

  • Firstly, although our main focus is the regulation of barristers’ conduct in their professional activities, it has always been understood that the conduct of barristers outside their professional lives can also have an impact on public confidence. So the rules and duties under the BSB Handbook which apply at all times include those that require that barristers must not behave in a way which is likely to diminish the trust and confidence which the public places in them or in the profession, and that they must not do anything which could reasonably be seen to undermine their honesty, integrity or independence;
  • The second is that the closer a barrister’s non-professional conduct is to their professional practice, the more likely we are to have a regulatory interest in that conduct; and
  • The third, which applies to all communications – whether professional or non-professional, and whether via social media or not – is that it is the manner in which barristers express their views that is more likely to concern us rather than the substance of that view (but that is not to say that we will never be interested in the substance of a barrister’s view).

In considering whether we have a regulatory interest in a barrister’s conduct that occurs in their non-professional life, the first question we will ask is whether the barrister has been charged with an indictable offence (or an offence of comparable seriousness outside England and Wales), or whether they have been convicted or accepted a caution for any criminal offence (other than a minor offence). We hope that it should be obvious that a barrister who is seen to be breaking the law may also be in breach of their professional obligations.

If the barrister’s conduct is not covered by this first question, we will go on to consider whether the conduct is sufficiently relevant or connected to the practice or standing of the profession such that:

a. it is likely to diminish public trust and confidence in the barrister or the profession; and/or

b. it could reasonably be seen by the public to undermine the barrister’s honesty, integrity or independence.

In determining whether the conduct is ‘sufficiently relevant or connected to the practice or standing of the profession’, we will take into account:

i. the nature of the alleged conduct; and

ii. the context and environment in which the conduct is said to have occurred.

The types of conduct in a barrister’s non-professional life in which we may have a regulatory interest include conduct which is seriously offensive towards others, conduct which involves an abuse of their professional position, or conduct which is dishonest, discriminatory, victimising or harassing.

The guidance includes some helpful case studies which we hope will assist the reader in considering the types of conduct in which we are likely to have a regulatory interest.

The Social media guidance applies during both a barrister’s professional and non-professional life. So if a barrister is using social media in their non-professional life, they should bear both sets of guidance in mind.

The sort of conduct with which we may be concerned on social media is set out in the guidance and includes: the use of language that is seriously offensive, discriminatory, bullying or harassing; linking to or reposting such content posted by others without making clear that you disagree with it; gratuitous attacks on the judiciary or the justice system; or posting content which might breach client confidentiality. That said, although we hope that barristers will always communicate with civility, the use of heated or foul language alone in the context of social media debate is unlikely to be seen as a breach of the BSB Handbook, and in every case we will want to respect barristers’ human rights and, in particular, the higher degree of protection given to political speech in exercising the right to freedom of expression.

Every report alleging professional misconduct of any kind is assessed very carefully. That can mean that it takes some time for us to respond, especially where we are sent a large dossier of evidence or where reports involve complex factual backgrounds or multiple barristers. But we shall always seek to handle such reports promptly and sensitively, and we are making every effort to improve the timeliness of our decision-making.

We hope that this guidance will enable barristers and the public to understand what we are likely to consider a potential breach of the BSB Handbook. Meanwhile, our recent roundtables looking at how we can encourage best practice in chambers are also seeking to deliver the cultural change which will eliminate the types of behaviour to which the guidance refers in every context, including in non-professional life and on social media.