With the promise of a rare CPD ethics point for fortunate attendees, the Sports Section of the Commercial Bar recently hosted a lively session entitled ‘Sports Law Ethics and Journalists’.
Leading the discussion were Tony Nolan QC and Murray McInnis (in his capacity as a member of the ethics committee), joined by Chip Le Grand, senior journalist with the Australian newspaper and author of The Straight Dope.
The seminar examined ethical issues for barristers dealing with the press. Media coverage into the Australian Sports Anti-Doping Authority’s investigation into possible doping violations at Essendon Football Club helped focus the discussion.
What are the relevant ethical rules? Are these rules right? To what extent, and if so how, should barristers provide ‘door stop interviews’ on their clients’ behalf, or contribute more generally to ‘water cooler’ conversations about the legal issues of the day?
Relevant ethics rules
The starting point for any such discussion is rule 58(a) of the Victorian Bar Practice Rules. This prohibits a barrister from publishing or taking any step towards the publication of any material concerning any current or potential proceeding which, amongst other things, appears to or does express the opinion of the barrister on the merits of the current or potential proceeding or on any issue arising in the proceeding, other than in the course of genuine educational or academic discussion on matters of law.
Whilst rule 58(a) is not so narrowly expressed, the Good Conduct Guide contemplates that the rule is primarily directed towards the conduct of barristers concerning matters in which they are personally involved (see 8.55 to 8.61). An Ethics Committee Bulletin (Bulletin 3 of 2013) (Ethics Committee Bulletin) confirms this construction, recommending that barristers exercise caution when making public statements about cases in which the barrister is involved outside of court or tribunal hearings.
The guiding principle, as the Good Conduct Guide suggests, is that counsel should confine their advocacy to the court room.
Members of the profession will understand the point. Barristers are partisan when representing clients in court (subject, of course, to their duties to the Court). This is essential to the workings of an effective adversarial system. Outside court, however, a barrister’s role is inherently objective. Accordingly, barristers can supply fearless and courageous advice to clients.
Should such ethical rules be honoured in the breach?
Chip Le Grand played devil’s advocate, testing whether in the ‘real world’ the distinction between advocacy within and outside court is properly understood, or whether it should even exist. He tested participants on what constitutes good client representation. He posed the hypothetical of a client left vulnerable to a waiting media pack. He explained that the media needs its ‘doorstop interview’ to be satiated and often this comes best from a person whose skill set specialises in advocacy, rather than from a lay person who due to cultural or socio-economic factors may be misinterpreted by the press.
Application to social media
How ethical rule 58(a) translates to ‘general’ public legal comment by barristers, particularly on social media, was then debated and discussed. Some considered that barristers should refrain from using social media at all and that public comment should be completely avoided. Other attendees considered that social media can be a good networking tool and that a number of barristers have effectively built their practices with the help of blogs and the like.
It is interesting to contemplate the ethical rules imposed on barristers, relative to the rest of the legal profession and the broader role barristers can offer in community wide debate about matters of public importance, when assessing the current ethical constraints imposed on them.
For instance, the suggestion that any comment on a legal proceeding (in which a barrister is not involved) should only be made for the purpose of ‘genuine educational or academic discussion’ does not appear to reconcile comfortably with another function of the independent Bar, its public advocacy of often difficult legal causes.
That said, keeping comment about legal proceedings to ‘educational discussion’ might be useful for those on social media. If tempted to criticize someone or something extravagantly in 140 characters or less, one can call to mind: “Is this educational?”
Might a disrepute clause help?
Continuing the sporting context, could barristers be subject to the kind of disrepute clause familiar to most professional athletes? The rules of most governing sporting bodies and sponsorship contracts will prohibit athletes from engaging in conduct capable of bringing him, her, the sporting code, club or company into disrepute.
A disrepute clause has the advantage of avoiding an overly prescriptive drafting approach. Instead, a disrepute clause can facilitate disciplinary consequences where identifiable conduct is clearly contrary to community standards.
A decision by the Racing Appeals and Disciplinary (RAD) Board illustrates how such a rule has been recently applied to social media abuse. On 31 July 2015, the RAD Board dealt with the social transgressions of a stable-hand who had made offensive and racist tweets about the AFL players, Mr Adam Goodes and Mr Bachar Houli and disrespectful tweets about the Chairman of Stewards Mr Terry Bailey.
The stable hand pleaded guilty to two charges of AR 175A which provides
“Any person bound by these Rules who either within a racecourse or elsewhere in the opinion of the Committee of any Club or the Stewards has been guilty of conduct prejudicial to the image, or interests, or welfare of racing may be penalised.”
The Board ordered the stable hand to apologise in writing to the affected parties. Likely affected by this experience, the stable hand then immediately changed his Twitter account so his tweets were protected from public view.
The above reflections stem from a stimulating session. Having regard to the Agenda for the forthcoming Victorian Bar and LIV Conference 2015 (Law, Duty and Morality – what is expected of the modern lawyer? Advisors, enablers, or moral guardians), it appears the discussion is set to continue