I spoke last Thursday at the second lawblogs event, kindly hosted in the grand (not to mention establishment) surrounding of The Law Society. The event was attended by around 75 people, most of whom had a passion for legal blogging and tweeting.
One issue which I tried to explore was the professional ethics of lawyers blogging and tweeting. There are a number of questions which lawyers could, and probably should, ask themselves before making their social media debut . Is it right for lawyers to comment publicly on the law? What about on their own cases? And might there be a positive ethical duty to explain the law to the general public?
On the first two questions, it is important to remember that unlike the futuristic j oint profession predicted by the Mark Darcy character in Bridget Jones’s Diary (a ‘lawyer’ who has partners in his chambers and is an advocate who can comment on his cases), the position in England and Wales is still different for solicitors and barristers.
Put simply, solicitors can comment on their own ongoing or future cases, but barristers cannot. According to Rule 11 of the ‘Solicitors’ Regulation Authority Code of Conduct, a solicitor must ‘exercise [their] professional judgement’ as to whether it is appropriate to make a statement to the media about their client’s case. If they do make a statement, they must consider whether it is in their client’s best interest to do so, whether the client has consented to the course of action (note that they only need to ‘consider’ consent), and the legal position including whether the comment may be in contempt of court.
So, as long as a solicitor is doing what is in their client’s best interest, and has their consent, they can blog or tweet about a case as much as they like. For barristers, the situation is quite different. Para 709.1 of the Bar Code of Conduct provides that a barrister…
…must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.
This is a wide-ranging prohibition. However, it is followed by the slightly confusing qualification that paragraph 709.1 ‘shall not prevent the expression of such an opinion on an issue in an educational or academic context’. This is a bit mysterious, as without wanting to sound legalistic, an ‘educational’ context could be widely construed. For example, I would consider some of legal blogging to be educational, in the sense that it attempts to explain law to the general public and recent legal developments to other lawyers.
Whilst these professional differences are interesting, in reality most legal blogging and tweeting will not be about a lawyer’s current cases, but rather about general points of law. In this regard, Mike Scutt has made an interesting point in his review of the lawblogs event: namely, that under the newish Legal Services Act 2007, lawyers may be under a positive obligation to blog. Section 1(1)(g) provides that there is ‘regulatory objective’ of
…increasing public understanding of the citizen’s legal rights and duties
The duty to follow that objective, amongst others, is imposed directly on the Legal Services Board, an independent body created by the 2007 Act which oversees the regulation of lawyers in England and Wales. It is also imposed on approved regulators, which includes the Bar Standards Board. And heres the final flourish: anyone who is regulated by those regulators, that is all solicitors and barristers, must comply with the regulatory arrangements of their regulator. It would be odd, Scutt convincingly argues, if this did not include the regulatory objectives.
That is a slightly long-winded way of saying what in my view should have been obvious anyway. Lawyers are practitioners in a specialist profession. As specialists, they hold the key to knowledge which is important to society. They should act as responsible guardians for that information. By way of comparison, the medical profession’s ancient Hippocratic Oath attempts to put this social responsibility into words. A popular modern version of that oath includes the following passage:
“I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow”.
This could be applied to lawyers too. Of course, many lawyers will see this as at best peripheral and at worst a lofty irrelevance to the daily grind of drafting contracts and managing clients. But as was clear from the discussion at lawblogs, many lawyers are motivated to blog or tweet by the daily misrepresentations -both accidental and wilful- of law in the media, and aim to explain the actual law as simply as possible so that the public can at least make up their minds from an informed perspective. That is certainly the aim of this blog.
It is true that law is complex. Cases which reach court generally do so because there is no easy answer. If there was, in civil cases at least, a settlement would have been reached and we would never hear about the case. These cases, which often involve issues of great social importance, are worth explaining in a way which celebrates rather than buries nuance. Lawyers should not wait for their professional regulators to tell that if they don’t take on this task, no one else will.
May 24, 2011 by Adam Wagner
