In an informative piece in Counsel magazine, family law blogger Lucy Reed set out the regulatory framework that applies to UK lawyers on social media. In doing so, she listed some recent examples of professionals who have fallen foul of their regulator due to social media misuse.

I know of a few examples to add to Lucy’s list.

Remember the Baker Small scandal,¬†when education law solicitor, Mark Small, boasted in realtime on twitter about ‘winning’ cases against the parents of children with special educational needs who were appealing decisions refusing them support? In the inevitable twitter backlash that followed, Baker Small promptly imploded, haemorraging dozens of local authority clients keen to dissociate themselves from Mr Small’s arrogance. I blogged about that case at the time as I frequently represent local authorities in emotive SEN cases.

And now there is the case of Khan v Bar Standards Board [2018] EWHC 2184 (Admin). Khan will interest many of you, mainly for the drama. But beneath that are, I think, a few points of significance to regulatory law in the context of professional social media misuse.

Background

The case follows the fallout from an acrimonious breakdown in an intimate relationship between Ms McBride (a lawyer) and Mr Jones, a barrister, at a time when Mr Jones was engaged to be married. (Some of the names have been changed in the judgment to protect anonymity and I have used the same names here).

In summary, Ms McBride and Mr Jones jostled over allegations and counter-allegations in civil, criminal and regulatory complaints against each other. Readers interested in the minutiae of who did what to whom can see paragraph 7 of the judgment.

Little love was lost between the parties and Ms McBride described Mr Jones in a post on his LinkedIn page as a:

cheating, deceiving psychopath who will threaten you when you speak out against him.’¬†

After she was the victim of a knife attack that saw her stabbed in the right thigh, she accused Mr Jones of arranging the stabbing.

At a civil trial of these complaints, Ms McBride was found to be an untruthful and dishonest witness and a circuit judge dismissed her allegations against Mr Jones.

The disciplinary case

Into this unhappy scene came¬†Mr Forz Khan, a barrister of 20 years’ experience, who Ms Mcbride hired to represent her in relation to allegations of criminal harassment.

In a robing room in Stafford Crown Court, Mr Khan had repeated allegations that Ms McBride made against Mr Jones, namely, that the latter had stalked and raped her, and that following her complaints, Mr Jones had arranged for threats to be made to her life. He was heard making similar comments at Birmingham Crown Court some months later.

Mr Khan also sent private messages on LinkedIn¬†to Mr Jones’ wife, Ms Davies, (a solicitor)¬†which indirectly referred to Ms McBride’s¬†allegations.

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Mr Khan was reported to the Bar Standards Board who brought a disciplinary charges against him for breaching the core duties to act with honesty and integrity (CD 3) and to not behave in a way that is likely to diminish the trust and confidence of the public in the profession (CD5).

On advice, he pleaded guilty to three charges of professional misconduct and a disciplinary panel suspended him from practise for 7 months. In doing so, they observed that:

Mr Khan’s conduct and behaviour is so serious as to undermine public confidence in the profession and¬†therefore a signal needs to be sent to Mr Khan, the profession and the public, that the behaviour in question is unacceptable.

The guidelines state that the range of sanctions for higher level misconduct is a suspension from practise ranging from 6 months to 3 years.

The High Court appeal

A fresh legal team argued that Mr Khan’s¬†conduct, described as ‘tittle-tattle‘, did not amount to professional misconduct. The private LinkedIn messaging was ill-judged but not serious misconduct. Mr Khan had pleaded guilty on advice from a QC but that advice had not made reference to the recent definition of ‘professional misconduct’ in¬†Howd v Bar Standards Board¬†[2017] EWHC 210 (Admin)¬†and/or a human rights defence based on Mr Khan’s rights to private correspondence and freedom of expression. In any event, Mr Khan’s team¬†argued that the 21-month sanction imposed was disproportionate and unlawful.

Mr Justice¬†Warby dismissed Mr Khan’s appeal against conviction. The Judge acknowledged that ‘barristers are prone to gossip among themselves…¬†may speak about their cases [and] may use colourful language.‘ More widely:

…professional people of all kinds may need a space in which they can speak freely about their private lives, and their work, to colleagues, without fear that the regulator or an informer is looking over their shoulder, contemplating the instigation of professional disciplinary proceedings.

However, on the facts, Mr Khan’s conduct crossed the high threshold of serious misconduct. The regulator was entitled to interfere with Mr Khan’s protected rights to correspondence and free speech in order to protect the reputation and rights of others. Mr Khan’s speech was mere gossip and there was a low threshold for justifying interference with it.

Nevertheless, the Court held that the sanction imposed by the Tribunal was ‘manifestly excessive‘ and set it aside.

There were 4 errors in the decision on sanction:

  1. The panel imposed a deterrent sanction unnecessarily and in the absence of any evidence of a systemic problem in the profession;
  2. The panel failed to consider the impact of the suspension – a¬†loss of earnings in the region of ¬£140,000 –¬†on Mr Khan. It was a serious step to prevent a barrister from practise regardless of their level of¬†earnings and Mr Khan’s Convention rights were engaged;
  3. The panel’s starting point of 9 months’ suspension was excessive;
  4. Insufficient credit was given to Mr Khan for his early guilty plea and cooperation, which should have earned him a discount of at least one-third (see § 75).

The High Court considered what lesser sanction it should substitute (given that the usual deference paid to expert disciplinary panels is reduced when it comes to sanctions applied to the legal profession which the court is familiar with).

Seeking a final bite at the regulatory cherry, the BSB argued that the pursuit of an appeal against conviction ought to deprive Mr Khan of any credit for his early guilty plea. The court disagree and found that Mr Khan’s admissions saved time and costs earlier in the proceedings. That some arguments were rejected on appeal could be addressed in a costs order.

Mr Khan’s suspension was reduced to 3 months (from a starting point of 5).

Comment

Disciplinary panels that seek to make an example of defendants by handing them harsher than normal sanctions should be very cautious about doing so, particularly where there is no objective evidence of a systemic problem that needs fixing.

This brings me back to Lucy Reed’s article in Counsel magazine, which highlights that the available statistics don’t show significant numbers of lawyers breaking the rules on social, (even if those who do attract attention).

Mr Khan is said to be appealing the High Court’s judgment. The Telegraph quoted him as stating:

“The High Court judge was clearly wrong,” he added. “He should have allowed the appeal against all the charges.”¬†

That may be unrealistic, but this may not be the last word in the case.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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