Barristers who deliberately misgender someone on Twitter or send seriously offensive private messages on LinkedIn could potentially face disciplinary proceedings under revised social media guidance drawn up by the Bar Standards Board (BSB).

Consulting on the regulation of ‘non-professional conduct’, the BSB says it is seeking to clarify where the boundaries should lie in regulating conduct that occurs in a barrister’s private or personal life, taking account circumstances where it is accepted in case law that it might be legitimate for regulators to intervene.

The regulator says its existing guidance ‘may not always reflect the circumstances in which the BSB will have a regulatory interest in conduct that occurs outside professional practice or the circumstances where it is accepted in case law that it might be legitimate for regulators to intervene in relation to conduct in non-professional life’.

The proposed social media guidance provides three case studies where the BSB might intervene:

If the barrister has sent ‘seriously offensive private messages’ on LinkedIn;
If a barrister sends a group WhatsApp message to several people in proceedings when the client is still giving evidence as a witness;
If a barrister who frequently tweets about their gender critical views and deliberately misgenders or threatens a transgender woman who was challenging their views.
The BSB said it is unlikely to intervene where a barrister has posted ‘highly critical’ tweets of the current government and political figures.

Explaining its thinking behind the consultation, the BSB cited various authorities in its consultation document, including Ryan Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin).

‘The Divisional Court considered that for a regulator to intervene in a solicitor’s private or personal life, the underlying conduct must be qualitatively relevant to the practice of the profession or the standing of the profession and it must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the SRA Handbook,’ the BSB’s consultation document states.

The consultation closes on 20 October. In the meantime, the BSB has published interim social media guidance, which states that comments deemed ‘seriously offensive, discriminatory, harassing, threatening, or bullying’ are likely to diminish public trust or reasonably be seen to undermine integrity. However, foul language alone is unlikely to be a breach.

Law Society Gazette

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