Unregistered but not unregulated: non-practising barrister disciplined over offensive tweeting
If you hold yourself out as a barrister on social media, then you’d better behave like one. Even if you’re not practising, you should still abide by the Code of Conduct. Offensive tweets can land you in trouble, as a recent case demonstrates.… Continue reading
Once a barrister, always a barrister. Unregistered does not mean unregulated.
The case of Diggins v Bar Standards Board  EWHC 467 (Admin) establishes, among other things, that someone who has been called to the Bar and is a member of one of those Honourable Societies known as the Inns of Court, continues to be regulated and subject to the disciplinary jurisdiction of the Bar Standards Board, even though they do not currently hold a practising certificate. That means they are subject to the Code of Practice of the Bar, including Core Duty 5 which states:
“You 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…”.
Martin Diggins, an unregistered (ie non-practising) barrister, who had been called to the Bar by Middle Temple in 1992, was the subject of disciplinary proceedings for breaching Core Duty 5 in respect of an offensive tweet which he posted, under the handle “@martindiggins”, on 25 October 2017. The content of the tweet and the circumstances in which he posted it need not concern us: you can read about it in the first two paragraphs of Mr Justice Warby’s judgment of 28 February 2020. [There is also a useful summary of the case by Neil Rose on Legal Futures: Barrister fails in appeal over “seriously offensive” tweet]
That judgment gave reasons for the dismissal by the High Court of an appeal by Mx Diggins from the decision of the BSB that the tweet amounted to Professional Misconduct, in respect of which he was reprimanded and fined £1,000. The court was not re-hearing the complaint; it was merely reviewing the disciplinary process to see if it contained an error of law or fact or discretion which affected the outcome. If the decision was properly made, then it would not be for the court to substitute a different view.
Warby J concluded that Mx Diggins had failed to identify any misdirection or error of law on the part of the panel in this case. In particular, he rejected the argument that the Tweet was a purely private matter that the BSB had no business to be policing. It was, the panel had said, (1) a tweet to the world at large, which was (2) “seriously offensive”, accompanied by (3) a link to the appellant’s website, on which he identified himself as a barrister, which was (4) likely to diminish trust and confidence in the profession. The judge said he had “reservations about the third element of this reasoning” but that, “the panel’s decision was not wrong in this respect”. As he explained, at paras 72 and 73, there was no “bright line” between the public and the private conduct of a professional:
“72 … Ultimately, the question for the Panel in a case under CD5 is whether the conduct admitted or proved is likely to undermine trust and confidence in an individual barrister (as a barrister) or the profession. That is a question for assessment on the basis of the facts of the individual case…”
73 … It cannot be necessary for a barrister to be immediately or readily identifiable as such, before a charge under CD5 can be brought or made out. Nor can the link to the website in this case be the key factor, that takes the Tweet into the public domain. But I do not believe that is what the Panel was suggesting in its para 32. As it found, the Tweet was in the public domain anyway, as a public tweet, accessible to anybody. The URL, enabling a reader to travel from the Tweet to the appellant’s website and identify him as a barrister, is an element of the factual matrix that was relevant to the Panel’s assessment of whether his conduct met the test of being ‘likely to undermine trust and confidence’…”
What this means in practice is that anyone called to the Bar can, theoretically, for the rest of their life, be disciplined by the Bar Standards Board if their conduct brings the profession into disrepute. No doubt the fact that Mx Diggins (as he perhaps tendentiously insisted on being pronouned) drew attention to his barristerial status via his profile in the blog to which he linked in the tweet added to the likelihood of his being disciplined by the BSB, but that appears not to have been determinative of the existence of their jurisdiction.
However, a person who does not call attention to their barristerial status is perhaps less likely to be the subject of a complaint to the barristers’ disciplinary body. By the same token, they are also less likely to diminish the “trust and confidence which the public places in … the profession”. So ultimately it is not so much a question of whether you practice or are registered, but the fact that you hold yourself out to be a barrister, and supposedly member of an Honourable Society, that behoves you to behave like one.
Featured image: Photo by Kasturi Roy on Unsplash