EXPLAIN AND DISCUSS THE ABOVE WITH REFERENCE TO THE ETHICAL DILEMMAS FACED BY BARRISTERS AND THE BAR STANDARDS BOARD CODE OF CONDUCT. PDF

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This essay seeks to explain and discuss what ethical dilemmas barristers might face in meeting these duties, as prescribed by the Bar Standards Board Code of Conduct....

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“IS THE BAR STILL A STAND-OUT EXAMPLE OF ADHERENCE TO HIGH ETHICAL STANDARDS?” SEE DESIREE ARTESI, “LEADING THE WAY ON ETHICS” COUNSEL, ISSUE JANUARY 2017. EXPLAIN AND DISCUSS THE ABOVE WITH REFERENCE TO THE ETHICAL DILEMMAS FACED BY BARRISTERS AND THE BAR STANDARDS BOARD CODE OF CONDUCT.

INTRODUCTION A simple Google search of ‘barrister news’ on the 1 st of May 2018, brought up a hit of over 3 million. The top story however, was of Barrister Robert Jones who had recently been dismissed for allegedly engaging in a spanking session with a junior colleague.1 The ethical issues implied within the news articles would explain why Desiree Artesi might have asked the question of whether the Bar is “still a stand-out example of adherence to high ethical standards” 2. Andrew Walker QC, does provide a succinct answer to this question when he states that “‘Our ethics underpin both our focus on the best interests of our clients and our crucial role in society more widely – in securing the proper administration of justice and in upholding the rule of law. Despite what some like to argue, we are far more than just businesses, and the proper performance of what we do is indivisible from high ethical standards.” 3 Walker’s response indicates that the barrister owes a duty to their client, to society and to the courts.

Against the backdrop of Artesi’s question, this essay will seek explain and discuss what ethical dilemmas barristers might face in meeting these duties, as prescribed by the Bar Standards Board Code of Conduct.

THE NEED FOR HIGH ETHICAL STANDARDS O’Dair expresses the view that ethics is essential to the legal profession because it involves “arrangements made by society for the delivery of legal services and in particular of the legal profession, its structures, roles and responsibilities.” 4 Given 1 See for e.g Frances Gibb, “Barrister ‘unfairly sacked’ after spanking session” The Times May 1 2018 2 Desiree Artesi “Leading the way on ethics” Counsel, Issue January 2017 3 Desiree Artesi “Leading the way on ethics” 4 O'dair, Richard. Legal ethics: Text and materials. Butterworths, [2001] 5

that barristers are integral to ensuring that the principles of justice, fairness and equity, which are the bedrock of the Rule of Law are upheld, their role cannot be divorced from ethics.5 The concept of the Rule of Law will be meaningless if barristers are unable to uphold its underpinning principles. As barristers are “officers of the court” 6, they owe a duty to serve the court and ensure the administration of justice (BSB CD1). As professionals, lawyers are expected to have a level of ethical responsibility and duty. Such a collective responsibility is essential to maintaining the reputation of profession and inspiring public confidence. It is in the light of this that Justice Kirby of the Australian High Court observed that “The challenge before the legal profession....is to resolve the basic paradoxes which it faces.... To reorganise itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens. To preserve and where necessary, to defend the best of the old rules requiring honesty, fidelity loyalty, diligence, competence and dispassion in the service of clients, above mere self-interest and specifically above commercial selfadvantage.”7 Despite the existence of the paradoxes, barristers are obliged by the BSB Code to uphold certain standards. The ensuing paragraphs explains a few situations in which barristers might face dilemmas and discusses what they out to do in such circumstances.

Duty to the court in the administration of justice [CD1].

5 Phillips, Fred. Ethics of the Legal Profession. Routledge, [2016]. 6 Blake, Meredith, and Andrew Ashworth. "Some ethical issues in prosecuting and defending criminal cases." Criminal Law Review [1998] 17 7 Kirby, Michael. "Legal professional ethics in times of change.-Based on address prepared for Inaugural Lawyers Lecture, 23 July 1996, St. James Ethics Centre (Sydney) Forum on Ethical Issues." Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The. Vol. 3. No. 2. Judicial Commission of NSW, [1997]. 10

The notion of a barrister having an overriding duty to the court might not appear to have any ethical connotations at face value. This is because one might assume that it is by default part of the definition of a barrister’s duties to strive for the administration of justice. The barrister’s duty to the court among other things is to ensure that justice is administered and that they maintain public confidence in the profession8. As the court is a public body, it implies that the duty to the court also implies upholding the public interest. Essentially the duty to the court is a way of preventing barristers from undermining and/or abusing the integrity of judicial system9.

As straightforward as this might seem, the barrister’s duty to the court runs into ethical dilemmas when juxtaposed with the duty to uphold the best interest of the client. For instance, while the barrister’s objective is to get the best possible outcome for their client, they are obliged to “bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal” 10. One would have assumed that it would be in the best interest of the client if the irregularity were to favour them. However, as the barrister’s duty involves not deliberately misleading the courts, silence on an error of law amounts to unethical behaviour11. Blake and Ashworth however, argue that with errors of fact, the barrister is under no obligation to correct the court insofar as they do not actively make any references to the missed facts.12 This however, is limited to defence barristers. In the case of prosecuting barristers, their role of ministers of justice implies that they ought

8 Herring, Jonathan. Legal ethics. Oxford University Press, [2017]. 9 Herring, Jonathan. Legal ethics 10 Bar's Code of Conduct, Annexe H, para. 5.10. cited in Blake, Meredith, and Andrew Ashworth. "Some ethical issues in prosecuting and defending criminal cases." Criminal Law Review (1998): 22 11 Blake and Ashworth [1998 12 Blake and Ashworth [1998]

to draw the court’s “attention to any apparent errors or omissions of fact or law.” 13 Given that the duty of the barrister to the court is aimed at administering justice, the question naturally arises as to whether it would be fair for defence barrister to remain silent on facts such as previous convictions or for a prosecutor to point out errors of law that leads to lesser sentences for an accused. Depending on the nature of the crime and the perception of society, such actions, while considered ethical or unethical as the case might be, may not be well received by the public at large, which might ultimately undermine public confidence in the judicial system. The need to balance these duties, while safeguarding the integrity of their profession, is what presents barristers with ethical dilemmas. Be that as it may, it is worth stating that as highlighted in the BSB code, the barrister’s duty to the court overrides every other duty. There however might be some exceptions when it involves the duty to maintain the confidentiality of clients. Act in the best interests of each client [CD2]

While it has been established that barristers owe an overriding duty to the court in the interest of administering justice, an instance where this might present a serious challenge would be where they might breach client confidentiality.14 For instance, in situations where a client acknowledges that they are guilty, the barrister remains duty bound to defend them as best as possible.15 Blake and Ashworth highlight a number of scenarios where this might present ethical dilemmas for the defence barrister, arguing that in all instances 16. The duty of the barrister, they argue, is to ensure that the client receives the best defence possible. The distinction is however made with

13 Code of Conduct, Annexe H, para. 11.7. in Blake, Meredith, and Andrew Ashworth. 27 14 Herring, Jonathan. Legal ethics 15 Blake and Ashworth [1998] 16 Blake and Ashworth [1998] 21-26

regards to the English Bar’s code which imposes “very strict limitations on the conduct of the defence”, requiring them not to actively defend a client in a manner that affirms a confession made to them in confidence.17 The importance of client confidentiality 18 is further highlighted in the fact that barristers ought to seek the consent of their clients before making a disclosure even when it has to do with illegality. The only remedy available for the barrister in such a situation, if the client refuses to grant consent, is to recuse themselves from the case19. Lord Millet in Prince Jefri Bolkiah v. KPMG20 emphasised the need for lawyer and client confidentiality by arguing that “it is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret”. It is worthy of note that the objective presented for the preservation of confidential information, arises from the need to protect the client’s interests as well and in the administration of justice, which is a barrister’s duty to the court. Herring further argues that maintaining confidentiality is in the public’s best interests to ensure that clients can trust their lawyers 21. Duty to the Public

The BSB handbook [CD5] emphasises this when it obliges barristers not to act “in a way which is likely to diminish the trust and confidence which the public places” in them or their profession. In living up to the demands of this duty, barristers are expected to breach confidentiality in situations of money laundry and tax

17 Blake and Ashworth [1998] 20 18 See BSB CD6 19 Herring, Jonathan. Legal ethics. 20 [1999] A.C.2 222, 240 21 Herring, Jonathan. Legal ethics.

avoidance22. While Herring presents this more as a requirement for solicitors, the arguments advanced presupposes that failure to report a suspected case of money laundry or tax evasion would not be serving the best interests of the public, hence, it could be argued that the CD5 of the BSB handbook would apply to such situations. Herring further illustrates the dilemma faced by lawyers in striking a balance between upholding their client’s best interests and their duty to the public.23 It is argued that in situations where maintaining confidentiality might result in harm to the public, the lawyer is obliged not to make a disclosure without the permission of their client but could breach confidentiality in the public interest.24 The difficulty in such a situation is that while the public might applaud the lawyer for upholding high ethical standards, breaching confidentiality would inevitably make it harder for clients to trust lawyers with their secrets.

Acting in a manner that instils or maintains public confidence in their profession, would appear to reflect more the issue of high ethical standards. The combination of CD3 and CD5 present more of a moral angle to the barrister’s duties as they are expected to act with honesty and integrity avoid committing crimes, avoid harassing others, or being offensive towards other people, or abuse their position. It is little surprise therefore, that the barrister mentioned in the introduction was dismissed from his job when it was alleged that he might not have acted with integrity.

Need for Barristers to be Stand-Out Examples Several reasons can be advanced for why it is expedient that barristers stand out as beacons of high moral standards. While the BSB core duties present a few reasons 22 Herring, Jonathan. Legal ethics. 23 Herring, Jonathan. Legal ethics. 402 24 Herring, Jonathan. Legal ethics. 402

for barristers to act in a certain manner, a deeper analysis will highlight that the need to gain and maintain public trust and confidence would rank high on the pedestal of explanations why barristers ought to excel in ethical behaviour. This is a point that Sir Thomas Bingham M.R. was keen to make in the case of Bolton v Law Society 25 when he stated that “It is required of lawyers practising in this country that they should A discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors.” The mention of ‘barristers’, whereas the case concerned a solicitor, further highlights how important it is for every lawyer to maintain a high ethical standard. Such high expectations should be expected, especially given that there appear to be a history of distrust for lawyers within British society. As far back as 1726, Jonathan Swift held the view that lawyers were a “society of men… bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid” 26 Such negative perception of lawyers came after Shakespeare had in the 16 th century stated that “the first thing we do, let’s kill all the lawyers’27. Given that Shakespeare’s view has been largely misconstrued over the centuries28, it might be that it had negatively influenced swift. Nonetheless, the need to avoid such misrepresentations and the consequent low public perception of lawyers, requires barristers to always strive for ethical perfection.

Conclusion

25 [1994] W.L.R.1 512, [1994] 518 26 Swift, Jonathan. "Gulliver’s travels." Gulliver’s Travels. Palgrave Macmillan, New York, [1995] pt 4 Ch. 5 11 27 Dick the Butcher in Henry VI, Part II, Act 4, Scene II in Shakespeare, William. The complete works of William Shakespeare. Race Point Publishing, {2014}. 28 Debbie Vogel, "Kill the Lawyers,"A Line Misinterpreted, NY TIMES (June 17, [1990]

This essay sought to explain and discuss the ethical dilemmas faced by barristers with reference to the BSB Code. Making its point of departure from Artesi’s quote, it has argued that there is a great need for high ethical standards from barristers. It further illustrated how lawyers faced ethical dilemmas when upholding their duty to the courts and public and serving the best interest of their clients. Despite these challenges, this essay goes on to draw from two English novelists, to show that public perception of lawyers has for a long time been either bad or misrepresented. There is therefore urgent need for barristers to raise the bar of ethical standards.

BIBLIOGRAHPY CASES Santos, M. (2017). The shared space: the two circuits of the urban economy in underdeveloped countries. Routledge. Bolton v. Law Society, [1994] W.L.R.1 512, [1994] All E.R.2 486

Prince Jefri Bolkiah v. K.P.M.G (A Firm) [1999] A.C.2 222 OTHERS Blake, Meredith, and Andrew Ashworth. "Some ethical issues in prosecuting and defending criminal cases." Criminal Law Review (1998): 16-34. Debbie Vogel, "Kill the Lawyers,"A Line Misinterpreted, NY TIMES (June 17, 1990), [online] available at https://www.nytimes.com/1990/06/17/nyregion/l-kill-thelawyers-a-line-misinterpreted-599990.html [accessed 16 April 2018] Desiree Artesi “Leading the way on ethics” Counsel, Issue January 2017 [online] available at https://www.counselmagazine.co.uk/articles/leading-the-wayethics [accessed 07 April 2018] Frances Gibb, “Barrister ‘unfairly sacked’ after spanking session” The Times May 1 2018 [online] available at https://www.thetimes.co.uk/article/barrister-robertjones-unfairly-dismissed-after-spanking-session-on-colleague-s-deskm8s96q6ff [accessed 1 May, 2018] Herring, Jonathan. Legal ethics. Oxford University Press, [2017]. Kirby, Michael. "Legal professional ethics in times of change.-Based on address prepared for Inaugural Lawyers Lecture, 23 July 1996, St. James Ethics Centre (Sydney) Forum on Ethical Issues." Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The. Vol. 3. No. 2. Judicial Commission of NSW, [1997] 5-10 O'dair, Richard. Legal ethics: Text and materials. Butterworths, [2001]. Phillips, Fred. Ethics of the Legal Profession. Routledge, [2016]. Shakespeare, William. The complete works of William Shakespeare. Race Point Publishing, {2014}. Swift, Jonathan. "Gulliver’s...