Must lawyers meet higher standards?
So long as they behave lawfully, lawyers are entitled to a life outside the law
What interest should regulators have in the how legal professionals behave when they are not working for their clients? Should solicitors and barristers be free to behave as they wish — so long as they keep within the law? Or do they need to meet higher standards because questionable behaviour by individual lawyers may damage the entire legal profession?
Ryan Beckwith, a partner at a large London law firm, was accused by his regulator of sexual misconduct with a junior colleague. The Solicitors Regulation Authority alleged that he had breached two of its principles, which at that time required solicitors to “act with integrity” and “behave in a way that maintains the trust the public places in you and in the provision of legal services”.
One of the two allegations against him was upheld by the Solicitors Disciplinary Tribunal last year but dismissed on review by the High Court. What Beckwith did “affected his own reputation”, the court said, “but there is a qualitative distinction between conduct of that order and conduct that affects either his own reputation as a provider of legal services or the reputation of his profession.” A fine of £35,000 and a costs order of £200,000 were set aside by the court.
Jon Holbrook, who was called to the bar 30 years ago, describes himself as a “barrister cancelled for defying the woke”. He published this tweet in January (the heading has since changed):
As Holbrook explained later, this was a a response to a promotional video from the Equality and Human Rights Commission that featured the parents of a former student who had challenged her school’s uniform policy. In response to people who accused him of being racist, the barrister said it was because Ruby was “of colour” that she had won her claim:
Without making a reference to the girl’s race, the tweet would have made no sense. To use the language of the Equality Act: Ruby had a “protected characteristic” (her race) which was the basis on which her legal challenge was brought and succeeded.
Following the tweet, he said he had been expelled from his chambers:
During my 15 years as a barrister at Cornerstone Barristers and 30 years at the bar, I had an unblemished professional record and was top ranked by legal directories for my work — particularly in public law. And yet my one sentence tweet on a platform designed to be polemical has ended this particular career.
He had previously offered to resign with immediate effect. He told his colleagues: “It is not possible to practise at the bar whilst expressing conservative and populist opinion.”
The bar responds
Holbrook wrote to the chairman of the bar, Derek Sweeting QC. Sweeting replied robustly:
As I understand it, you commented on a case in which a pupil brought a claim against her school. The school could have contested the case but chose not to do so and settled. As a result, the case was not tested at a hearing.
The claim was brought under the Equality Act. You appear to take a dim view of this legislation which parliament enacted to eliminate discrimination and advance equality of opportunity. You chose to characterise the claim as one involving the undermining of school discipline by “a stroppy teenager of colour”.
No one doubts your right to express your opinions on social media but there is a constraint on your entitlement to do so. That is because you are a barrister and so subject to specific professional conduct rules which apply at all times. These include an obligation not to behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession.
I don’t think anybody would disagree with the principle expressed in that last sentence. That, after all, is the whole point of having a regulated profession. What’s open to argument is whether Holbrook’s behaviour — or Beckwith’s behaviour in my earlier example — would damage public trust in the profession as a whole. But, as Sweeting said in the letter that Holbrook published in full, that was not a matter for representative arm of the bar to decide.
Bar Standards Board
Instead, it was referred to the barristers’ regulator. The Bar Standards Board considered whether it complied with the bar’s code of conduct. Had Holbrook published a tweet that was designed to demean or insult a teenager and which might be considered distasteful or offensive by others? Did the tweet breach the barristers’ core duty referred to by Sweeting? In particular, could it be seen as “seriously offensive or discreditable conduct towards third parties”?
The answer to all those questions, said an independent decision-making panel, was “no”.
The panel told Holbrook it
considered that the language of your tweet run describing Miss A as “a stroppy teenager of colour” was ill-advised and may give rise to offence. However, it is accepted that you were expressing your personal opinion on a piece of legislation rather than intending to demean or insult another.
The panel then looked back at 17 tweets that Holbrook had published in 2019 and 2020. It concluded — in all cases but one — that, although the views he had expressed might have caused offence to others, his behaviour did not breach the code of conduct: it was not seriously offensive or discreditable.
This was the exception:
Holbrook was told:
The panel took into account the context in which the tweet was made, which was in response to a tweet dated 17 October 2020 calling for the Charlie Hebdo magazine to be shut down following the beheading of Samuel Paty by an Islamist. The panel considered that the ordinary reasonable reader would understand the tweet to mean that the Muslim community was to blame for curtailing free speech.
The panel considered this would not only cause offence but could promote hostility towards Muslims as a group. The panel considered that such behaviour was likely to diminish the trust and confidence that the public place in you or the profession and that there was therefore evidence of a breach of [the core duty not to diminish the public’s confidence in the profession].
Really? Holbrook was responding to a tweet from a UK-based Muslim journalist. The journalist’s tweet, which has been widely shared, calls for a lawful publication to be closed down — a clear restriction on free speech. That view is shared by most Islamist extremists, I suspect. It may be shared by other Muslims — though certainly not by all. Was Holbrook saying that the Muslim community as a whole was responsible for curtailing free speech? Or should “other Muslims” be understood to mean “some other Muslims”?
The trigger of causing offence and possible hostility towards a group is so subjective and broad that almost anyone who engages in political argument could fall foul of it. The Bar Standards Board has given itself powers to curtail speech that go beyond anything that parliament or judges have given to the criminal or civil law, as so well explained here.
Secondly, the Bar Standards Board has disregarded the rules of natural justice. I was originally charged but later exonerated for tweets that were “designed to demean or insult” individuals. The charge … [of] causing offence and possible hostility to a group was one never put to me and acted on by unidentified bureaucrats from behind closed doors, who I was given no chance to see or address.
For this, Holbrook was given “an administrative sanction in the form of a warning and a fine”.
This was the warning:
You are warned to take care to consider how your public posts as a barrister may impact on you and/or the profession and take care to consider the standards set out in the Bar Standards Board Handbook and any supporting guidance at the time.
The fine was £500. An administrative sanction does not count as a disciplinary finding and is not normally made public.
Where does this leave Holbrook?
I’m sure the panel that dealt with Holbrook’s case thought it was being generous to him. The fine was about as low as it could be. If he had not chosen to put the panel’s ruling into the public domain, we would never have heard about it. Though he has left his chambers, he could have resumed his practice as a barrister.
Instead, he has doubled down. He will take his case to an appeal panel, which can review the earlier decision and set it aside or vary it. In the meantime, Holbrook has republished the tweet that led the panel to find against him.
This is the just the sort of behaviour that is likely to annoy the appeal panel. Despite the warning, he has given further publicity to a tweet that — according to the decision-making panel — could promote hostility and damage public confidence.
On the other hand, it is entirely consistent with his view of free speech. If he was entitled to publish the tweet in the first place then he was entitled to republish it.
It is also consistent with the law. A tweet will not contravene section 127 of the Communications Act 2003 unless it is “grossly offensive or of an indecent, obscene or menacing character”. Nobody would say that about the tweet Holbrook was sanctioned for. In a piece last week, I outlined the new harm-based replacement recommended by the Law Commission. Again, I find it hard to see how a tweet like this could be likely, and intended, to harm a likely audience.
It is absurd to suggest that the tweet for which Holbrook was fined £500 could damage public confidence in the barristers’ profession. Of those who read it, very few are likely to have known that Holbrook was a barrister. His professional qualification was not mentioned on the tweet when it first appeared — although it was included in his Twitter profile. He had a separate Twitter account for chambers-related tweets. Because he wanted to keep his professional work separate, he even asked me some years ago not to use his chambers email address when writing to him about his personal campaigns.
If the Bar Standards Board had believed that Holbrook had damaged public confidence in the profession, it should have told the public that Holbrook’s behaviour was unacceptable. It did not do so. The decision not to classify adverse findings of this nature as public disciplinary rulings is no doubt intended to protect individual barristers from the consequences of minor transgressions, just as it limits the reputational damage to the bar as a whole. But the profession cannot have it both ways.
We can disagree with the views of individual barristers without attributing their views to the entire profession. All barristers in the House of Commons have political affiliations and most will express strong views from time to time. Some return to full-time legal practice after leaving parliament. Other practising barristers take a party whip in the Lords. Their opinions are bound to challenge the views of their political opponents but nobody would say they they damage public confidence in the legal profession as a whole.
Most practising barristers keep their views to themselves. They know that being outspoken on matters of public controversy can reduce their chances of getting work. They understand that, unless they are speaking on behalf of other barristers, regular media appearances are inconsistent with future judicial appointments. And yet one former MP, Sir Ross Cranston, was so well regarded that he became a High Court judge in 2007.
It is absolutely right for the profession to come down hard on those who behave dishonestly and receive criminal convictions. Nina Koushi, a newly-qualified solicitor, was lucky to get away with a six-month suspension and £2300 costs last month after she admitted using, with intent to deceive, a “blue badge” belonging to someone else when she parked her Mercedes in a disabled person’s bay in Ealing, west London. That was in addition to a court penalty totalling almost £2000. At the time, she said, she was “suffering from moderate to severe mixed anxiety and depressive disorder”.
But the public are shrewd enough to understand the difference between the behaviour of an individual lawyer and the reputation of the legal profession. So long as lawyers behave lawfully, they are entitled to a life outside the law.
Update 27 August: Neil Rose, who runs an excellent website covering the legal services market, alerts me to comments last month by Ed Nally, president of the Solicitors Disciplinary Tribunal. In his annual report for 2020, Nally writes:
It is noteworthy that this year we have seen examples of cases where the actions of solicitors in a private capacity have come under the microscope in terms of professional misconduct. Sexual misconduct and offensive social media activity are two obvious high-profile areas, but there will no doubt be many other areas where the delicate balance between personal and professional conduct arises.
My personal perspective is that it is impossible for solicitors to leave their practising certificates at home completely and expect to act with total impunity in a personal capacity. It would be most odd if appalling behaviour in a personal capacity could completely be disregarded in terms of whether it also constitutes professional misconduct, or whether it calls into question the integrity of an individual.
The Solicitors Disciplinary Tribunal is being asked to adjudicate on these areas on occasions. The cases are fact specific, difficult and cutting edge at times. Our role is to consider where the regulatory reach of the Solicitors Regulation Authority starts and stops, and we must do that fearlessly in the public interest.
Nally’s use of superlatives — appalling behaviour, completely disregarded — suggests that disciplinary proceedings are likely to be appropriate only in the worst cases of sexual misconduct and the most offensive use of social media. He is right to say it can be difficult to draw the line.
I’m not seeking to argue that lawful behaviour should never form the basis of a disciplinary charge. But I am suggesting that misbehaviour by lawyers does not inevitably cause damage to the legal profession.
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