DOI: http://dx.doi.org/10.5235/1460728X.17.1.143 Legal Ethics, Volume 17, Part 1 UK: Room at the Inns—The Increased Scope of Regulation under the New Bar Standards Board Handbook for England and Wales Marc Mason* In January 2014 the Bar Standards Board (BSB) brought its new Handbook into effect.1 Far from being a simple gathering of old rules in one place, the Handbook represents a subtly changing approach to the regulation, and arguably the definition, of the profession. The substantive changes include a clear shift to outcome focused regulation and risk based supervision, the expansion of regulation of unregistered barristers, the addition of litigation rights for self-employed barristers, the requirement of reporting of misconduct, the responsibility of individual members for chambers maladministration, and the scope for disqualification of employees of barristers within chambers. There is of course also a large section of the Handbook devoted to entity regulation as the Bar Standards Board looks towards the world of the Alternative Business Structure (ABS), and its particular role in the regulatory marketplace. This section as yet remains unapproved by the Legal Services Board,2 and as such appears struck out in the Handbook for the time being. Several of these changes can be viewed as the regulator, and indeed the profession, taking steps to redefine itself or to retain flexibility for redefinition. Constraints of space make it impossible to properly explore each of them here, and particular focus is therefore given to the expansion of the domain of the regulator in terms of the individuals it regulates. Regulating the Unregistered The Handbook3 defines a class of people as ‘BSB regulated persons’. Within this class, in addition to practising barristers, fall barristers without a current practising certificate * Lecturer, Westminster Law School, University of Westminster, UK. All websites accessed April 2014. The Bar Standards Board is the regulator for barristers in England and Wales, and is responsible for setting and enforcing the ethical and conduct standards for the Bar. 2 The oversight regulator for lawyers in England and Wales. 3 Bar Standards Board, The Bar Standards Board Handbook (2014), https://www.barstandardsboard.org.uk/ media/1553795/bsb_handbook_jan_2014.pdf. 1 144 Legal Ethics (Rules I7.1& I7.84). It also defines a class of ‘relevant persons’ which includes all BSB regulated persons and direct and indirect employees of any BSB authorised person (Rules I7.6 & I7.8). Previously, the stance taken by the Bar Council to those without practising certificates was that they should not describe themselves as barristers when providing legal services.5 Now the rule6 is that before supplying legal services7 to an inexperienced client the unregistered barrister must explain: that they are not acting as a barrister; that they are not subject to parts of the code of conduct applying only to BSB authorised persons; that complaints to the BSB can only be raised in relation to the parts of the Handbook which do apply to them; their insurance status; and that the client has a right to complain (but not to the Legal Ombudsman). The unregistered barrister must also get written confirmation that this information has been provided. This change ensures that clients receive fuller information about the person providing them with legal services, but also has the effect of allowing this group of barristers to make use of their title when providing these services. The significance of regulations has also increased for these individuals. The old code of conduct had some marginal application to what would now be called ‘unregistered barristers’ in the sense that the first fundamental principle8 applied to them, prohibiting them from conduct which was discreditable, dishonest, prejudicial to the administration of justice or likely to diminish public confidence in the profession. It also prohibited engaging in an occupation which may tarnish the reputation of the Bar. The new Handbook makes clear that all core duties (the Handbook is divided into Core Duties, Outcomes, Rules and Guidance) apply to all BSB regulated persons (Rule C1). It also specifically identifies a number of rules as applying to unregistered barristers.9 This means that the duties on unregistered barristers have expanded from the above to include duties to the court and to the best interests of the client as well as duties of honesty and integrity, independence, confiden4 5 6 7 8 9 References throughout to rules are to rules from The Bar Standards Board Handbook unless otherwise stated. References to ‘old rules’ refer to rules of the old code of conduct: Bar Standards Board, The Code of Conduct of the Bar of England and Wales (8th edn, 2013), https://www.barstandardsboard.org.uk/regulatoryrequirements/the-old-code-of-conduct/the-old-code-of-conduct. This has been the case since July 2000. Prior to this date the Bar Council permitted the use of the title ‘Barrister (non-practising)’ when providing legal services. Understandably this was deemed to be confusing and this possibility was removed from new entrants in July 2000, although those already using this title were permitted to continue doing so provided that they notified the Bar Council, maintained insurance, and notified clients of their status (ie that they were not fully regulated, had limited powers, and that compensatory mechanisms were unavailable (old rule 206.1)). The rest of the code did not apply (old rule 206.2) (General Council of the Bar, Development of Authorisation to Practise Arrangements—Consultation Paper (2010), Annex 2, www. barstandardsboard.org.uk/media/1386031/development_of_authorisation_to_practise_arrangements_-_ consultation_paper.doc). This approach remains the case for those who were already practising under that rule by virtue of Rule S12. Rule C144. There are a number of exceptions in Rule C145 for legal services supplied as an employee/manager of an authorised body or body regulated by a professional body or regulator, as a volunteer or part-time employee of a legal advice centre, under authorisation from another regulator, or as a foreign lawyer not giving advice on English law or supplying services in relation to English/Welsh proceedings. Note that these are unreserved legal activities, and the unregistered barrister still remains unauthorised to conduct legal activities reserved by the Legal Services Act 2007. Old rule 301. Rules C3.5, C4 (which is duplicated in C16), C8, C16, C19 and C64–70. Reports, Comments & Notes 145 tiality, competence, openness and cooperation with regulators, and practice management as well as prohibitions on discrimination and any behaviour likely to diminish trust and confidence in the individual or the profession. This introduces a far more substantial relationship between these individuals, and their now more interested regulator. Core duties 5 (not to diminish trust and confidence) and 9 (openness with regulators) apply at all times, as do Rules C8 (specifically not to do anything seen to undermine honesty integrity and independence), C16 (making the duty to the client subject to the duty to court and to the duty to act honestly and with independence), and C64 to C70 (providing information and access to business premises and documents on request; informing the Bar Standards Board of one’s own criminal charge, conviction, bankruptcy, serious misconduct or disciplining; or the serious misconduct of another barrister). The other core duties and rules (not compromising independence or misleading clients) apply only when providing legal services.10 Even when not offering legal services, the parts of the Handbook applying to unregistered barristers exceed the ambit of the old ‘first fundamental principle’ which used to be the only provision that applied at any time. It would seem then that the Bar has moved from a position where those who are partially qualified (in the sense of having completed the BVC/BPTC but not pupillage11) are forbidden from holding themselves out as barristers when providing legal services, to a position where they are forced to come out as barristers and to then reveal their limitations. In addition, whether supplying legal services or not, the Bar Standards Board now expects compliance with a broadened range of duties and rules, and self-reporting of any serious non-compliance with these duties and rules. The numbers of individuals affected is not known, but is likely to be significant. As unregistered barristers, by definition, do not register with the Bar Standards Board it is not possible to know how many of them there are out there. It is however useful to consider that each year between 2006 and 2010 there were between 1,736 and 1,852 barristers called to the Bar,12 but only 460–562 pupillages.13 The number of unregistered barristers is therefore not insubstantial. The question of how many then go on to supply (non-reserved) legal services is another unknown. It is conceivable that the recent changes might encourage an increase in this group, given that such an individual is now not only able, but required to indicate to the client that they have a special status (albeit one that keeps them on the fringes of the profession). The justification for this increased regulation appears to have its roots in the concern that the previous arrangement could cause confusion to the public and to employers.14 Rule C2. Students completing the Bar Professional Training Course (previously the Bar Vocational Course) are called to the Bar at their Inn of Court but are not entitled to apply for a practising certificate until they have completed a one-year period of pupillage. 12 Bar Standards Board, ‘Called to the Bar Statistics’, https://www.barstandardsboard.org.uk/media-centre/ research-and-statistics/statistics/called-to-the-bar-statistics. 13 Bar Standards Board, ‘Pupillage Statistics’, https://www.barstandardsboard.org.uk/media-centre/researchand-statistics/statistics/pupillage-statistics. 14 Bar Standards Board, Review of the Code of Conduct—Consultation Report (April 2011), 15, https://www. barstandardsboard.org.uk/media/1344953/code_review_consultation_feedback_report__final___2_.pdf. 10 11 146 Legal Ethics Despite this the Bar Standards Board chose not to take the step of deferring call to the Bar until the completion of pupillage which would have put barristers in a similar position to solicitors (who must complete a training contract before being ‘admitted to the roll’) but would have left them outside of the reach of regulation. The approach chosen has the effect of giving the Bar Standards Board remit over a larger number of individuals within the legal system, both within ABSs and without. This appears to be something that was explicitly in the Bar Standards Board’s consideration, when they refer to the need to regulate all barristers ‘particularly at a time when legal service providers are becoming more innovative in their working arrangements’.15 Litigation Rights Another major change under the new Handbook is that self-employed barristers can now conduct litigation, expanding the domain of work that the Bar Standards Board regulates. The reference to litigation in this context means issuing, commencing, prosecuting or defending proceedings, and the formal steps needed to carry out these activities (not including representing a client at court).16 Self-employed barristers were previously prohibited from this activity by rule 401(b)(ii), but it is now permitted under new Rule S24.b, provided that the barrister has obtained a litigation extension to her practising certificate. This had been one of the few major distinctions remaining between the two main branches of the legal professions in England and Wales following the reluctant introduction of Direct Access to barristers for lay clients. Arguably, it removes a significant barrier to effective direct access for non-professional clients that now has the potential to be a fuller service than may have been originally anticipated when Direct Access first arrived.17 conclusion Flood and Whyte18 asked, in the context of direct access, whether the bar was ‘losing its grip on its professional project’ or whether we were seeing defensive manoeuvres to maintain that grip. The same question can be asked of the current changes. With the expansion of regulation of Unregistered Barristers, it could be argued that the Bar is (nominally at least19) maintaining its control of the production of producers, whilst still maintaining a degree of control of production by producers by allowing the unregistered barrister only 15 16 17 18 19 Bar Standards Board, New Handbook and Entity Regulation & Supervision and Enforcement: Consultation Report (December 2012), 14, https://www.barstandardsboard.org.uk/media/1438535/handbook___entity_ regulation_consultation_report_dec_2012.pdf. Sched 2 para 4 Legal Services Act 2007; Agassi v Robinson (Inspector of Taxes)  EWCA Civ 1507. Abel provides an account where direct access for non-professional clients can initially be seen as a means where barristers can refer clients to solicitors as litigators rather than the other way round. Richard Abel, English Lawyers Between Market and State (Oxford University Press, 2004) 84–188, 195. John Flood and Avis Whyte, ‘Straight There, No Detours: Direct Access to Barristers’ (2009) 16(2–3) Journal of the Legal Profession International 131. Nominally in the sense that it decides who gains entry by setting the point of call to the Bar, but not in the sense of having meaningful control of the number of BPTC graduates. Reports, Comments & Notes 147 limited status and privilege, and in effect turning a two tiered profession (Barristers and Queen’s Counsel) into a three tiered profession.20 The addition of litigation to the available areas of work enables new models of working for the self-employed barrister and allows greater competition with the other legal professions. Both of these changes can be seen to improve the grip of the Bar Standards Board on its professional project by increasing the size of the class of individuals it regulates, and increasing their capacity to compete with other professions for work. 20 Richard Abel, ‘Comparative Sociology of Legal Professions’ in Richard Abel and Philip Lewis (eds), Lawyers in Society, Volume 3: Comparative Theories (University of California Press, 1989). DOI: http://dx.doi.org/10.5235/1460728X.17.1.148 Legal Ethics, Volume 17, Part 1 USA: Saving Face—Ethical Considerations for American Judges Using Facebook Benjamin P Cooper* Cautionary tales of judges misusing social media abound. In North Carolina, a judge was reprimanded for using social media to conduct independent research on a party appearing before him and for engaging in ex parte communications with one of the lawyers.1 In Alabama, a judge was reprimanded for making comments on his Facebook page about contempt proceedings against a lawyer appearing before him.2 Judges, like all Americans, are making increasing use of social media,3 but they remain concerned about whether they can use such sites without violating the ethical codes that govern their conduct.4 Recognising the need for guidance on these issues, several state ethics committees have authored ethics opinions addressing judges’ use of social media, and last year the American Bar Association (ABA) weighed in. All of these opinions endorse judicial use of social media. As the ABA opinion explains, judges should not become ‘isolated’ from the community in which they live, and social media ‘has become an everyday part of worldwide culture’.5 Thus, the ABA Opinion concludes that ‘judicious use of [social media] can benefit judges in both their personal and professional lives’ and can also keep them from being ‘thought of as isolated or out of touch’.6 For the most part, these opinions recognise that judges can navigate social media ethically by simply applying well-established principles to the unfamiliar context of social media. Following this rule of thumb, these opinions provide a variety of valuable guidance to judges to help them use social media without running afoul of their applicable judicial code of ethics. Where these opinions fail to provide clear guidance to judges, however, is on * 1 2 3 4 5 6 Jessie D Puckett, Jr Lecturer and Associate Professor of Law, University of Mississippi School of Law, USA. Portions of the discussion in this article are adapted from a longer article that will be published by The Professional Lawyer. All websites accessed April 2014. North Carolina Judicial Standards Commission Inquiry No 08-234. In re: Henry P Allred (Ala, March 2013), http://judicial.alabama.gov/judiciary/COJ42PUBLICREP.pdf (Reprimand and Censure of District Judge). Conference of Court Public Information Officers, 2012 CCPIO New Media Survey (2012), http://ccpio.org/ wp-content/uploads/2012/08/CCOIO-2012-New-Media-ReportFINAL.pdf. Ibid. ABA Committee on Ethics and Professional Responsibility Formal Opinion 462 at 1. ABA Formal Opinion 462 at 1. See also South Carolina Opinion No 17-2009 at 1 (‘complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives’). Reports, Comments & Notes 149 perhaps the most critical issues: whether judges may connect on social media with lawyers and others who may appear before them and whether such ‘friendships’ must be disclosed to litigants. On those issues, most of the opinions, including the ABA’s Opinion, fail to articulate a clear standard. This Article first describes the helpful advice contained in these opinions concerning the unique characteristics and dangers of social media and then turns to their chief shortcomings. I. Unique Dangers of Social Media Collectively, the state bar opinions and the ABA’s Opinion offer extremely helpful guidance to judges concerning many of the unique dangers of social media. First, judges should not comment on pending cases on social media. The Model Code of Judicial Conduct and its state counterparts severely limit judges’ ability to publicly comment on pending cases.7 Social media makes it alarmingly simple for users to make ‘public’ comments; indeed, judges should treat all communications on social media as ‘public’.8 Refraining from commenting on pending cases will also help the judge avoid engaging in prohibited9 ex parte communications.10 If the judge is ‘friends’ with a lawyer who is appearing in the case, a comment about the case on social media violates that prohibition. Second, judges should not engage in independent investigations on social media. Facebook and other social media make it exceedingly easy for judges to independently investigate cases in violation of the Code of Judicial Conduct.11 With a few keystrokes—by, for example, navigating to the Facebook page of a witness—a judge could learn information about a case in violation of the rule.12 Third, judges should consider carefully what they say on social media. The Code of Judicial Conduct extends to judges’ extra-judicial activities, and social media poses unique dangers to judges concerning their extra-judicial responsibilities. Among the judges’ responsibilities away from the bench, a judge must avoid ‘participat[ing] in activities that will interfere with the proper performance of the judge’s judicial duties’ or that would ‘appear to a reasonable person to undermine the judge’s independence, integrity or impartiality’.13 As part of fulfilling this obligation, judges should avoid ‘expressions of bias or prejudice … 7 8 9 10 11 12 13 Model Code of Judicial Conduct Rule 2.10 (‘A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court …’). California Judges Association Judicial Ethics Committee, Op 66 (2010). Model Code of Judicial Conduct Rule 2.9 (‘A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding …’). See eg Ohio Board of Commissioners on Grievances & Discipline, Advisory Op 2010-7 (2010), at 7 (‘it would be prudent to avoid … job related communications on a social networking site’); NY State Advisory Committee on Judicial Ethics, Advisory Op 08-176 (2009), at 2 (‘other users of the social network, upon learning of the judge’s identity, may informally ask the judge questions about or seek to discuss their cases …’). Rule 2.9(C) (‘A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented …’); Ohio Opinion at 7 (‘The ease of finding information on a social networking site should not lure the judge into investigative activities in cases before the judge’). Ohio Opinion at 8–9. Rule 3.1(A) and (C). 150 Legal Ethics even outside the judge’s official or judicial actions’.14 Social media provides a platform for an indiscreet judge to violate this prohibition either by making an inappropriate comment or by otherwise demeaning the judicial office.15 In making any comment on social media, judges should keep in mind that in the digital world, their comments can easily be taken out of context and may have ‘long, perhaps permanent, digital lives such that statements may be recovered, circulated or printed years after being sent’.16 Even if the judge intends to share that comment only with a select group of social media ‘friends’, the comment could be easily disseminated without his knowledge or approval.17 Fourth, a judge should monitor comments on his social media page. Those comments could be racist, sexist or otherwise demeaning to the judicial office if they are attributed to the user, and since users control the content on their pages, some ethics opinions have concluded that judges are responsible for the content posted by others on their pages.18 Fifth, judges should be careful what they ‘like’ on social media. The opinions warn judges that by ‘liking’ people or entities on social media, they may violate prohibitions against (1) ‘abus[ing] the prestige of judicial office to advance the personal or economic interests … of others’19 and (2) ‘publicly endors[ing]’ a candidate for ‘public office’.20 II. Judges and ‘Friendship’ For all the good advice contained in these ethics opinions, they fail to give judges clear advice on perhaps the most critical issues: (1) who may the judge ‘friend’ on social media, and (2) does a judge have to disclose social media connections to litigants. The legal issue is whether judges’ social media connections create an ‘appearance of impropriety’21 or ‘convey the impression that any person or organization is in a position to influence the judge’22 in violation of the Code of Judicial Conduct. Some state opinions—Florida, Massachusetts, Oklahoma and Connecticut—take a strict view, forbidding a judge from friending lawyers who ‘may appear before the judge’.23 Several other states— 14 15 16 17 18 19 20 21 22 23 Rule 3.1, Comment 3. Ohio Opinion at 1; California Opinion at 5. ABA Opinion at 2. Ibid. California Opinion at 5. Rule 1.3. Rule 4.1(A). Rule 1.2. Rule 2.4(C). Fla S Ct Judicial Ethics Advisory Comm, Advisory Op 2009-20 (2009), www.jud6.org/LegalCommunity/ LegalPractice/opinions/jeacopinions/2009/2009-20.html; Okla Judicial Ethics Advisory Panel, Op 2011-3 (2011), www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147 (endorsing Florida Opinion’s view); Massachusetts Comm on Judicial Ethics, Advisory Op 2011-6 (2011), www.mass.gov/courts/sjc/ cje/2011-6n.html (‘The Committee is of the opinion that the Code prohibits judges from associating in any way on social networking sites with attorneys who may appear before them’); Connecticut Comm on Judicial Ethics, Informal Op 2013-6 (2013), www.jud.ct.gov/Committees/ethics/sum/2013-06.htm (‘A Judicial Official should not become a social networking “friend” of law enforcement officials, social workers or any other persons who regularly appear in court in an adversarial role …’). Reports, Comments & Notes 151 New York, Kentucky, South Carolina and Ohio—take a more permissive view and generally permit judges to be friends with lawyers who may appear before them.24 The California Judicial Ethics Committee takes a middle ground approach, finding that a ‘per se prohibition of social networking with lawyers who may appear before a judge is not mandated by the Canons’ but counsels instead that judges look to a variety of factors in determining whether there is an appearance of impropriety.25 The ABA’s recent Opinion also failed to provide clarity on this important issue. The ABA mentions that the state committees ‘have expressed a wide range of views’ on the issue and notes that ‘designation as [a social media] connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person’. The Opinion then goes on to advise lawyers that ‘context is significant’.26 The ethics opinions are also split on whether judges should disclose online friendships as part of the judge’s obligation to ‘disclose on the record information that the judge might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification’.27 Only a few jurisdictions have offered an opinion on this critical issue. The California Ethics Committee opined that judges should disclose all online friendships, while the New York, Kentucky and ABA opinions conclude that judges should decide whether to disclose online friendships on a case-by-case basis. The ABA states that judges should ‘very carefully consider whether [social media] connections must be disclosed’ if the judge and the lawyer engage in ‘current and frequent communication’.28 The ABA Opinion concludes, however, that ‘because of the open and casual nature of Electronic Sound Media (ESM) communication, a judge will seldom have an affirmative duty to disclose an ESM connection’.29 The problem with the ABA and most of the state ethics opinions is that they do not provide judges with clear guidance concerning online friendships and the need to disclose those friendships. Thus, they send a peculiar message: judges are generally free to participate in social media—an activity that consists largely of making online connections—but they do not tell judges what connections they can make. Some of the ambivalence in the opinions undoubtedly arises because of the ambiguity concerning the meaning of social media ‘friendship’. In some cases, users become social media ‘friends’ with people who they would describe as friends in the non-virtual world, but in other instances, users ‘friend’ just about anybody. The ethics opinions seem to recognise that social media ‘friendship’ is ambiguous, but they draw the wrong conclusion from that ambiguity. The ethics opinions give these loose connections far too much power than 24 25 26 27 28 29 Ohio Opinion at 1 (‘A judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge’). The South Carolina opinion does not address friendships with lawyers but says that judges can be friends with law enforcement officials as long as they do not discuss anything related to the judge’s position. California Opinion at 6–9. ABA Opinion at 2. Rule 2.11, Comment 5. ABA Opinion at 3. ABA Opinion at 3. 152 Legal Ethics they deserve when most people understand that social media ‘friendships’ are rather inconsequential. A better approach to these issues would be to provide bright-line rules for judges that reflect the common understanding of these social media connections. First, judges should be able to connect with lawyers on social media, even lawyers who may appear before them. Most people understand that being ‘friends’ with somebody on social media is very different than our traditional notions of friendship. In reality, social media connections often mean very little and therefore do not create an ‘appearance of impropriety’ or ‘convey the impression that any person or organization is in a position to influence the judge’. Ethics Committees also should draw a second bright-line rule: judges should be forced to disclose to litigants social media connections with parties and witnesses. This disclosure should help maintain the litigants’ and the public’s confidence in the judiciary by ensuring that everybody shares the same information concerning social media connections. Once the judge discloses any relevant social media connections, the parties can decide whether those connections merit any further action, such as a motion for disqualification. On most issues, the ABA and the state committees seem to recognise that judges can navigate social media ethically simply by applying well-established principles in a new context: for example, just as a judge cannot put up a yard sign endorsing a local business or a political candidate, a judge cannot ‘like’ a local business or political candidate on social media.30 When it comes to judges’ social media ‘friendships’, however, most of the opinions fail to follow this rule of thumb and have therefore created unnecessary uncertainty. 30 California Opinion at 6 (a judge ‘must be careful not to post any material that could be construed as advancing the interests of the judge or others’). See also Ohio Opinion at 7 (counselling judges to ‘avoid frequent and specific social networking communications with advocacy groups interested in matters before the court’).
Link or Click Back
Here will be a configuration form