The Solicitors Disciplinary Tribunal has published its judgment in the case of Farrukh Najeeb Husain, where Mr Husain was struck off the roll after posting a series of tweets deemed to be antisemitic and offensive.
In the current heightened political climate, with the ongoing conflict in Gaza and upcoming elections in the UK and USA, it is a timely reminder that social media can blur the line between personal and professional, and that, in appropriate cases, conduct on social media can lead to the most serious of sanctions.
In this news alert, Liz Pearson and Andrew Pavlovic summarise the case, before turning to the relevant SRA guidance and considering what law firms can do to ensure that their employees are aware of that guidance and understand that conduct on social media can amount to regulatory misconduct.
The SRA’s allegations
The SRA alleged that:
- a series of Mr Husain’s public tweets, involving interactions with a King’s Counsel and a well-known journalist and columnist, as well as general tweets, amounted to antisemitic and/or inappropriate and/or offensive comments which breached the following SRA Principles 2019 (SRA Principles), which require that solicitors act:
a. in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons (Principle 2)b. with integrity (Principle 5)c. in a way that encourages equality, diversity and inclusion (Principle 6) - another series of more general tweets were inappropriate or offensive and breached any or all of the same SRA Principles.
- Mr Husain sent inappropriate and/or offensive emails to the SRA and breached any or all of the same SRA Principles. These emails included reference to a McCarthyite show trial and comments on the presumed race of the Investigating Officer.
Mr Husain denied all allegations. He stated that he was anti-Zionist not antisemitic, and that the SRA had adopted an inaccurate definition of antisemitism. The SRA had also failed to respect his rights to freedom of speech and right to a private life. Mr Husain emphasised the context of Twitter – a robust forum, where trading insults is, in his view, part of the dynamic. While his use of insulting language was perhaps unfortunate, it did not, he argued, amount to professional misconduct. Similarly, simply being offensive, in his view, could not amount to professional misconduct. Mr Husain also challenged the reliance on principle 6, alleging that the SRA guidance clearly stated this Principle was aimed at encouraging equality, diversity and inclusion in the workplace.
(We note the judgment refers to Twitter (now X) and we have kept that wording for consistency)
The Tribunal’s decision
The Tribunal found all the allegations proved, striking off Mr Husain, but declining to award costs on the basis that the evidence suggested that Mr Husain’s lack of means meant that he would be unable to satisfy any costs order.
Balancing Mr Husain’s rights to free speech and a private life
The Tribunal had regard to Article 10 of the ECHR, and acknowledged that there should be a high bar when restricting a professional’s right to freedom of speech. However, the right was not absolute. Here, the Tribunal’s task was to consider whether Mr Husain’s ‘specific mode and manner of that expression had crossed from legitimate debate into antisemitism and/or the use of offensive, or inappropriate language, resulting in a breach of his professional duties and responsibilities’.
Similarly, the Tribunal noted Mr Husain’s right to a private life, pursuant to Article 8 of the ECHR, however again this was not absolute. The Tribunal referred to other cases, where ‘private’ conduct was regulated because it realistically touched on the practitioner’s practise of the profession or the standing of the profession in the eye of the public. Here, Mr Husain had identified himself as an employment solicitor in his Twitter profile, which the Tribunal considered Mr Husain had done “to add a level of legitimacy and gravitas to his public profile”. The Tribunal noted that a solicitor engaging in social media was in “a qualitatively different position to an unregulated individual with no professional affiliations, duties, and obligations”.
Findings on breach
The Tribunal identified specific and collective tweets that were antisemitic and/or offensive and inappropriate. This conduct amounted to a breach of the duty to act with integrity: ‘the essence of what it means to be a solicitor and is perhaps the source from which all other professional attributes spring. Integrity must include a moral compass and the dignified way in which this is expressed outwards to other professionals and the public.’
Having found this breach, ‘it followed that the public would not expect a solicitor to send antisemitic Tweets and/or Tweets … of an offensive nature to anyone’ and so this ‘would diminish the trust and confidence the public places in the legal profession’, thereby breaching principle 2.
The Tribunal also found a breach of principle 6, albeit they did not explicitly address Mr Husain’s argument that the guidance had a focus on conduct in the workplace.
Regarding communications with the SRA, the Tribunal found the emails were intrinsically and overtly offensive, and had racist and discriminatory content and overtones, thereby breaching principles 2, 5 and 6.
Findings on sanction
The Tribunal considered various factors on sanction, including:
- Motivations – while Mr Husain was seemingly initially motivated to set out political points on a public forum, this devolved into using offensive and antisemitic language over roughly nine months. With the SRA emails, Mr Husain appeared angry and outraged at the proceedings.
- Medical evidence– while Mr Hussain had depression, the Tribunal had not received medical evidence to suggest this diminished his control or insight. He was thus fully culpable.
- Harm – the impact of the misconduct on those affected and on the profession’s reputation was high, and such harm was foreseeable.
- Remorse – Mr Husain was not contrite and had shown no insight into his conduct.
- Potential future breaches – Mr Husain’s lack of restraint, judgment and insight meant the Tribunal was concerned that Mr Husain would behave in a similar vein with clients and members of the public who challenged him or held differing views.
The Tribunal felt no lesser sanction than removal from the Roll was appropriate, given the numerous examples of antisemitic rhetoric, vulgar and offensive language, and racism, showing ingrained behaviour and a failure of contrition or insight.
The Tribunal concluded:
… there is no place for bigotry and prejudice in the profession. Whilst the wider world is experiencing turbulent times solicitors must exercise restraint, show courtesy and display understanding to all manner of people with whom they come into contact whilst at the same time not shrinking from fearlessly fighting for their client, no matter their creed or political views.
With respect to the use of Twitter, a solicitor would be well advised to avoid using this platform when in a state of anger and to refrain from sending messages until they had a clear head and reclaimed their objectivity. [71-72]
What lawyers and firms need to know
Whilst the solicitor’s conduct in this matter was particularly egregious, there have been other cases where regulated individuals have been sanctioned for sending a single tweet (see for example the case of Diggins v BSB [2020] EWHC 467, where a single tweet from a barrister resulted in a reprimand and fine).
Individuals/firms should also be aware of how this matter came to the SRA’s attention:
- Mr Husain had a public Twitter profile, where he identified himself as a solicitor.
- Mr Husain and the King’s Counsel were engaging on Twitter, both aware that the other was a lawyer. The exchanges escalated to the point where the KC involved Mr Husain’s perceived employer, by tagging the firm in some of Mr Husain’s ‘personally abusive’ tweets. The firm then reported Mr Husain to the SRA.
- The SRA also received a report from an individual who had viewed Mr Husain’s tweets, stating ‘he was appalled at [the tweets] and dismayed that an SRA regulated solicitor would express themselves in such an offensive way, including an apparent hostility towards Jews, as to potentially diminish public confidence in the profession’.
- The SRA then reviewed Mr Husain’s public Twitter profile, gathering further evidence over many months.
The above highlights the potential for firms to suffer reputational damage through the actions of their employees/consultants, and the obligation on firms to report the matters to the SRA where they consider that the conduct on social media may amount to a serious breach of the SRA’s Principles/Rules (as the relevant firm did here).
In light of this Judgment, and the increased use of social media by lawyers more generally, lawyers and firms should take the following steps:
- Familiarise themselves with the SRA’s guidance on social media – the Warning Notice on Offensive Communications and Topic Guide on Use of Social Media and Offensive Communications.
- Alongside the SRA guidance, firms may wish to remind individuals of their own Social Media Policies and the circumstances in which communications on social media could amount to misconduct/gross misconduct, giving rise to disciplinary action.
- When receiving reports of offensive social media communications from staff, firms should consider their self-reporting obligations, having regard to the relevant guidance referred to above.
- Individuals who use social media profiles to comment on political matters should not identify themselves as solicitors on their profiles, and should nevertheless have regard to their regulated status and recognise that they will be held to a higher standard.
The case serves as a timely reminder of the need for lawyers and firms to ensure that appropriate standards of dialogue are maintained on social media.
If you would like to discuss this case further, or if you have any specific questions in relation to the SRA’s guidance on social media, please contact Associate Liz Pearson or Partner Andrew Pavlovic.
