Must lawyers blog and tweet?
24 May 2011
Lots of lawyers are blogging and tweeting. Should they be?
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. You can read the Twitter feed of the event here, or reviews by James Wilson, Mike Scutt, James Dean of The Times (paywall) and The Guardian’s Siobhain Butterworth .
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 joint 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 here’s 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.
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To Mr. Wagner and all of the other Legal bloggers,
I would like to thank you for all of your efforts in your respective blogs.
I am a member of the public who is going through some (civil/tax) legal issues at the moment, so I guess the matter is Sub-Judice. (I would not understand this term if it were not for bloggers).
I am not entitled to legal aid and am at a crossroads of many areas of Legislation, although there are no blogs covering my exact predicament, neither are there likely to be. I am utterly perplexed by what is happening and I find your blog posts very educational. With some deduction your blogs help give me some sort of understanding of the legal world.
I hope that you do not see this a way to engage with only clients but as an education for all who would read your posts.
It is a very good point that the majority of Blog posts are not written in “man in the street” language, conversely the man in the in the street needs to understand “legalese” when representing himself in court. I think that between various blogs the educational component is there. At least one man in the street thinks so.
I appreciate that you may not be able to reply back, but still wanted you to know that I, for one, am more than gratleful to you for your efforts and hope that you keep going.
Coming at this from a slightly different angle, I am a forensic accountant who blogs about criminal law / expert witness issues (including confiscation) with the intention of producing articles which are interesting, informative and useful.
But I am neither a solicitor nor barrister – I am a chartered accountant.
However my blogs are concerned with matters of principle and reported cases, with relatively few references to cases in which I have been personally involved (and those references are anonymised).
I suppose I could argue that these blogs were intended to be ‘educational’ – but fortunately my professional body does not prevent me from publishing these materials.
Hi Adam,
As promised, Baroness Deech and I have read your very interesting blog. Baroness Deech will respond on Twitter, but has asked me to answer your detailed question here.
You rightly highlight para 709.1 of the Code of Conduct. We have recently held a consultation on the Code which stated:
Barristers are currently prevented from expressing a personal opinion to the press or other media or in any other public statement on the facts or issues arising in any anticipated or current proceedings in which they appear (rule 709.1, Code of Conduct).
This rule against media comment was amended in 2001, in light of human rights considerations, so that it specifically prohibits only statements of opinion, rather than media comment in general. Consequently, the rule is narrowly drafted and can sometimes be difficult to interpret. The Board has recently reviewed the rule and proposes not to replicate it in the new Code, but to replace it with guidance to barristers about how to exercise their professional judgement. The Board believes this would a proportionate response with regard to the public interest.”
We hope that the new Code will be published in 2012 and that this will help us and barristers increase the public understanding of their legal rights and duties.
When I was a lawyer, I was far too busy for all of this.
I don’t know where lawyers find the time to blog.
Very interesting – I was sorry that I could not make the event on 19th. This duty to increase public understanding is interesting. It is very pleasing to see the number of websites operated by various Barrister’s Chambers which are highly informative but, very few, are aimed at the “man in the street” in language he would understand. The latter has to be at least one role which bloggers might take up?
I think that the majority of Solicitors generally avoid any media comment on their cases (present or past). It can be unwise because the slightest bit of poor phraseology can lead to trouble and there is usually no time, when in front of camera, to clarify any remark. As we know, politicians are trained these days to deal with the media and they can get it spectacularly wrong – e.g. as even that seasoned veteran Kenneth Clarke did last week.
The Barrister is, as you say, more restricted to what may be said. This probably stems from the “old” system of the barrister being the advocate in court who has been instructed by the solicitor.
I am not sure about the barrister’s educational exception but is there any better way of teaching that to do so from one’s own experience? The “what went well and what did not” version of teaching. Beats a cover-to-cover reading of Snell on Equity any day – (essential as this may be for some).
Let’s go on commenting (with care) and let’s try to dispel some of the misunderstandings and try to throw some light on our law. Generally, common sense is a good guide in all of this. I am hard-pressed to try to find any serious blogger who has obviously transgressed any of the Codes of Conduct. Open to correction on that of course.
The time honoured way to deal with your own cases is to change the names of the parties and the facts of the case so they are unrecognisable. After all it is the legal point that is important.
Presumably this approach is not in breach of any of the professional codes of conduct.
I agree that one of the best uses of a blog is to try to educate the public in your subject and this is what I try to do in my blog.
However this is also the approach most likely to benefit the blog writer as (so long as the posts are written in plain English) it will attract readers, and will position the writer as an authority in their subject.
Content marketing as it is called is a very good form of marketing. After all if you do a search in the internet in topic X and find a lawyer who is blogging in a clear understandable and authoritative way in that subject, that lawyer is going to be high on your list if you decide you need someone to act for you.
Interesting read and makes me glad to be a legal academic rather than practitioner. I don’t have to labour under the obstacles that face you. We academics can freely comment on cases, events and more.
Time to get working on changing your archaic rules, perhaps?
Adam
Unfortunately, I could not make the event but hope to organise something for the South West market similar to your event.
We have an increasing number of solicitors and barristers who are Tweeting and blogging as part of their practice, but how many are seeing a ROI I am not sure.
As someone who practised for 14 years in dispute resolution, I have made the decision to give up my practising certificate with a view to helping legal practice – solicitors and barristers – make the most of their intellectual capital via the social media paradigm.
In my humble opinion I doubt very much if clients would be terribly interested in following the machinations of a current case unless of course they knew that their solicitor or counsel of choice was involved in said case and of course that information is very unlikely to come direct from the lawyer concerned but from the press (and usually by naming the advocate concerned).
My issue is this: lawyers of whatever persuasion have to see social media as a way of connecting with their clients and putative clients with a view to spreading their particular message in the social media space. I have mentioned before the work done by Forrester Research on the Social Technographics ladder (http://forrester.typepad.com/groundswell/2010/01/conversationalists-get-onto-the-ladder.html). In my humble view it is crucially important for lawyers to work out where their clients are along the ladder before they dive into the social media space. Twitter may be right for some but wrong for others. As to the content, again I would posit the question (in colloquial terms): “What floats your boat”. In my experience very few clients or solicitors for that matter are that interested in the obiter dicta of a case and instead want a pithy and understandable version of how they can apply it to their advantage. I don’t think the regulatory regime is the issue. Engagement is key. How many law firms or chambers have a visible and remarkable social media presence? Very few.
Great piece and I hope in my very small way that I can help those firms that want to engage to Engage.
Regards
Julian.
Useful post, thank you, Adam. I, too, had been familiarising myself with the SRA and the Bar Codes of Conduct for the purposes of academic research and it struck me the ‘educational’ part of the Bar code was a bit ambiguous. It would give a barrister freedom to be quoted on an issue in an academic paper, but where did that leave a media law blog? Or an article about the research for a media organisation? Like you, I concluded that legal blogs can be educational and the barristers are unlikely to be commenting on a current case. Plus they would be aware of the rules when I interviewed them. Nonetheless, further clarification in this area would be useful.
Thanks for another fun law blogs event. Liked the Mark Darcy analogy!
all I can say is keep on blogging. someone has to try and maintain an objective argument against media misrepresentation of current issues whenever and wherever they arise.
“So, as long as a solicitor is doing what is in their client’s best interest, they can blog or tweet about a case as much as they like.”
And with their client’s consent.
Quite right. Edited.