'How Can You Defend Someone You Know is Guilty? Reflections on Legal Professional Ethics and Conduct' - David Woolley QC: THLS Lecture

Reflections on Legal Professional Ethics and Conduct
by
David Woolley
Trinity Hall Law Society
November 2012

Preamble
You may be asking why this bloke should trail down here to go on for an hour on a topic of little
apparent relevance and some obscurity. My answer is stark. Those of us professionally concerned
with these things find that while most practitioners know that they are bound by a Code of Conduct,
few have actually read it or have more than a hazy idea of what is involved. Falling foul of the rules
can lead to serious consequences. A finding of professional misconduct against a barrister stays on his
(for the sake of elegance and brevity the masculine includes the feminine from now on) record, and is
taken into account if he later seeks preferment to say, silk, or the Bench. So some familiarity with the
rules may be in order.
Introduction
Unsurprisingly, much of what follows applies to the Bar, where my working life has been spent and
with whose rules I am most familiar. However, the underlying principles also apply to solicitors, as
one would expect of a branch of what is still an honourable profession, in spite of what you read and
hear in the media. This will become even more true as the number of solicitor advocates licensed to
appear in the higher courts continues to increase, and as ex-solicitors reach high judicial office – there
has been at least one on the bench of the Supreme Court.
Today, the main factor which distinguishes the barrister’s work from that of the solicitor is money, in
more ways than one. There remains an absolute embargo on a barrister having access to the lay
client’s funds.1 Solicitors, by contrast, must necessarily handle clients’ money, and much of the
regulatory code to which they are subject is designed to ensure that those funds are properly managed.
There is also a good deal of anecdotal evidence that most solicitors who get into trouble do so by
misusing money in their Clients’ Accounts, or by conspiring with those clients and others to defraud
banks or building societies. Mercifully, the Bar is not exposed to such temptations – yet. Ominously
however, the bar authorities are working towards changing the CoC to allow barristers to handle
clients’ money. If that happens I would see it as another, probably decisive, step on the way to fusion
of the branches of the profession. Whether that is to be welcomed or lamented is not for this occasion.
Fifty years ago, Mr. R E (Ted) Megarry QC, later Megarry V-C, and also late of this parish, wrote, in
the course of his Hamlyn Lectures:-
... the Bar is a small and honourable profession, and with rare exceptions the rules are
honourably and loyally observed ... Once the word gets round (and the practising Bar is small
and concentrated), the Bar is watchful, and sooner rather than later consequences are likely to
follow. Above all there is the atmosphere of chambers, of hall and of the circuit mess ... At
the beginning of 1961, of a little over 1900 practising barristers, some eighty were in
1 Bar Code of Conduct (CoC) paras. 307, 407
3
chambers of three or less, and some two hundred and ten in chambers of fourteen to seventeen
inclusive. Some eighty five per cent of the Bar accordingly practise in chambers of not less
than four nor more than thirteen, with seven as the most popular number ... Nor, incidentally,
do practising barristers have visiting cards or notepaper which discloses their status.2
Fifty years on, that description of the Bar provokes a wry smile. In 2010 the practising Bar numbered
12,420, of whom 32 per cent were women, 500 from the Indian sub-continent, 100 ‘other Asian’, and
130 African.3 A set of chambers in London with seven members, let alone three, would be thought
laughably small and probably unworkable given the size of overheads, including rent and staff
remuneration. This is true of the big cities other than the capital as well. My own chambers, for
example, has over 80 barrister members of whom 25 are silks, supported by 10 clerks and 19
administrative staff, including accountants, marketing specialists, an IT manager, doorman cum
bouncer, and receptionist (recently promoted to ‘Conference Manager’). In the 1960’s all or nearly all
the sets of chambers in London were in one or other of the four Inns of Court. It may, for all I
remember, have been forbidden to set up chambers anywhere else in that city. Outside London, there
were local bars in some of the largest population centres, such as Birmingham, Manchester,
Liverpool, Bristol and Newcastle, but in few others. Now, it seems, anywhere with a pub and a post
office has its own set of chambers.
Until relatively recently, every member of the Bar had to have a clerk and practise from premises
dedicated as professional chambers Those rules have been relaxed, and the Bar Council and Bar
Standards Board permit counsel to practise from their homes, without a clerk, and to negotiate their
own fees, privileges of which increasingly large numbers take advantage. Further, the rule forbidding
barristers from accepting instructions from anyone other than a solicitor has been relaxed although not
repealed in toto, as will be seen.
All this means that the CoC has been drastically revised over the years to reflect the changes in the
Bar. Even so, the fundamental ethos described by Megarry, with perhaps a hint of complacency,
survives, as do the fundamental rules, albeit somewhat adulterated. As the practising Bar expanded in
size and spread geographically, however, the collegiate atmosphere which he rightly praised became
unsustainable. With the proliferation of sole practitioners operating from their homes and of small sets
of chambers in unexpected places, social contacts between members of the Bar and between Bar and
Bench has become more limited. While few would contend that this has brought about a marked
deterioration in professional standards, it has certainly not made it any easier to maintain them.
2 Megarry, Lawyer and Litigant in England, London, Stevens and Co. 1961
3 Bar council website - statistics
4
The History
The four Inns of Court still retain something of their collegiate origins. Founded as they were to
educate statesmen, courtiers and lawyers, while Oxford and Cambridge produced churchmen, each
has a governing body, its Benchers.4 As with an Oxbridge college today, discipline was in the hands
of the Bench, which exercised an exclusively domestic jurisdiction over the members of its Inn.
This continued to be the rule until 1967. Procedurally, the Benchers made a pretty poor fist of their
task, at least by today’s standards since the passing of the Human Rights Act. At the Middle Temple,
for example, alleged miscreants were tried by a committee of Benchers, with a Bencher as prosecuting
counsel. That in itself would now be looked at askance, but it gets worse. So far as the available
minutes of proceedings reveal, the Bencher who prosecuted would retire with the committee members
while they considered their verdicts, and may even have taken part in the discussions and voted on the
outcome. When, as usually happened, the proceedings stretched over two or more evening sessions,
after everyone had done a full day’s work in court, an individual Bencher who had not been present
throughout would take part in deciding the verdict without having heard all the evidence if he
happened to be sitting on the last day of the hearing. It is not even clear that the minutes would have
been available for him to read, for in the days before electronic recording and typewriters, let alone
computers, these would have taken a considerable time to prepare.5 We now live in more enlightened
times, or so we believe.
The Machinery of Professional Discipline
By virtue of the Legal Services Act 2007, what might be described as the trades union functions of the
Bar remain the responsibility of the Bar Council.6 Discipline is now in the hands of the Bar Standards
Board, consisting partly of barristers and in part of laymen and women chaired for the moment by an
academic lawyer. This brings proceedings against allegedly erring barristers, resolution of which is
entrusted to the Council of the Inns of Court, which appoints Disciplinary Tribunals, consisting of
three, or in more serious cases, five members, none of whom is a member of the Bar Council or the
Bar Standards Board. The Tribunals are made up of barristers and lay people, and there must always
be at least one lay member of any tribunal.7 From the Tribunals there is a right of appeal to the
Visitors of the Inns of Court, who are the Judges of the High Court. They generally sit in threes, with
a High Court or Court of Appeal Judge as chairman, one lay and one barrister member. In rare cases
they sit in fives.8
4 See Lord Silsoe, The Peculiarities of the Temple, London, The Estates Gazette, 1972
5 See R Havery, ed., The History of the Middle Temple, Oxford, Hart Publishing, 2011
6 See, Constitution of the General Council of the Bar
7 Constitution of the Council of the Inns of Court (2008); CoC, Annexe L
8 CoC Annexe M (The Hearings before the Visitors Rules)
5
The machinery for disciplining solicitors is radically different. The body which investigates
complaints against them is the Solicitors’ Regulation Authority.9 Where it has reason to suspect
dishonesty, undue delay in handling clients’ affairs, incapacity, bankruptcy, and so on, the Authority
has wide powers to intervene in a solicitor’s practice. Broadly, the same standards of integrity are
required of a solicitor as of a barrister, but there are two exceptions. The first arises from the fact that
his lay clients entrust a solicitor with their money, and this necessarily imposes strict obligations on
the way in which that money is kept and handled. I make no pretence of understanding the rules, but
am aware that it has to be kept in a separate bank account, called the clients’ account, and must be
minutely accounted for, as one would expect. Mercifully, a barrister has no such responsibilities, for
the moment at least. Second, a solicitor is not bound by the ‘cab-rank’ rule, of which more hereafter.
The General Principles
From the day he applies to join an Inn of Court, the fledgling barrister finds himself the object of
rigorous scrutiny. Admission to an Inn is vouchsafed only to a person of ‘good character’, and while a
criminal conviction will not of itself be a disqualification, one for dishonesty almost certainly will,
and will in any case be closely investigated. Once he has achieved call and started in practice - no
mere formality, as too many people are being called and the competition for pupillage and, a fortiori,
a seat in chambers, is intense – the barrister is confronted by a daunting catalogue of Do’s and Don’ts.
For present purposes, there is no distinction between a self-employed barrister in private practice, and
one who is employed, except in one respect.
A self-employed barrister may not undertake the general conduct of a client’s affairs or conduct
litigation or correspondence with other parties.10 In short, he may not do the work undertaken by a
solicitor. This used to include taking evidence or proofs of evidence for use in court, but the rule has
been relaxed in circumstances which are by no means clear to me, and to which I shall have to return.
The rationale for this is said to be to avoid any suspicion that the advocate might coach the potential
witness as to what to say. In that event, it is hard to see why the total embargo should be relaxed at all,
which is one of many reasons why I am unclear about just what is and is not permitted. There is,
moreover, no evident reason why a solicitor should be thought to be immune from the temptation to
coach a witness while a barrister cannot be trusted. It may be that the intervention of a barrister
between solicitor and court in some way guarantees the integrity of the evidence, but the argument
seems to me to have collapsed with the emergence of the solicitor advocate in the higher courts. In
any case, the argument was never strong since, as they done for time immemorial, solicitors take
proofs from witnesses before acting as advocates in Magistrates’ and County courts. There is a better
justification for the rule, which is that the advocate’s time is better spent on the forensic part of the
case than in the relatively routine task of assembling the evidence.
9 Solicitors Act 1974; Legal Services Act 2007
10 CoC paragraph 401
6
The employed barrister’s position is different. He may supply legal advice and advocacy services to
his employer, or, if he works for a local authority, to another authority. If he works for a central
government department he may supply the same services to any Minister of the Crown.11
The rules contained in the CoC are framed in high-flown language, and drafted in such a way that
they are often hard to understand, and even more frequently difficult to apply. The Code is both
prescriptive and restrictive of the way in which a barrister may receive instructions. In general, he
may act only if instructed by a solicitor or member of an approved profession. The latter are limited in
number, to professions such as accountants, engineers, architects, town planners and the like (‘direct
professional access’).12 Recently this rule has been relaxed to permit ‘direct public access’. This
allows the acceptance of instructions direct from members of the public, subject to requirements as to
negotiating fees and the keeping of the sort of records and retention of documents which would
otherwise be the responsibility of the instructing professional. These ‘Public Access Rules’ leave it to
the discretion of the individual whether to accept instructions direct from the public, and as to
whether, given the circumstances of the case, he should cease to act and insist that the client go to a
solicitor. The system as yet in its infancy, and it remains to be seen how it will work in practice. It
takes no great effort of the imagination to see that grave problems could arise from a barrister taking
on more than he could reasonably handle on his own, with disgruntled ex-clients demanding
retribution and compensation, with demoralising effects on the profession’s insurance premiums.
Speaking personally, I have never felt impelled to accept instructions direct from the public and
would be wary of doing so, for those very reasons. Advocacy is quite demanding enough on its own,
without one having to act as general factotum to the lay client as well. I prefer to leave that to those
instructing me. If the threat, described above, that the Bar be allowed to deal with clients’ money
materialises, this will add a new dimension to the terrors of self-employed private practice.
By paragraph 301 of the CoC:-
A barrister must not (a) engage in conduct, whether in pursuit of his profession or otherwise,
which is (i) dishonest or otherwise discreditable to a barrister; (ii) prejudicial to the
administration of justice; or (iii) likely to diminish public confidence in the legal profession or
the administration of justice or otherwise bring the legal profession in to disrepute; ...
[emphasis added]
On one view, those prohibitions are all-encompassing. For instance, how does a barrister bring
discredit on the Bar ‘otherwise’ than in pursuit of his profession, and ‘otherwise’ than dishonestly?
There would be no difficulty if he were to supplement his income from practice by keeping a brothel,
for that is a criminal offence.13 But would membership of a sado-masochistic ring of consenting adults
be a breach of the CoC? So far as I am aware it is not unlawful to employ one’s leisure in that way, at
least in private. Or, if a married barrister takes the opportunity while his wife is abroad to invite a
young woman (or man) to his house with the intent, later implemented, of mounting an assault on her
virtue, is that professional misconduct? Lest I be accused of indulging in flights of prurient fancy, I
should add that the latter example is taken from real life, from a case in which I acted for the accused
11 CoC paragraph 501
12 CoC paragraph 104
13 Sexual Offences Act 1956, section 33
7
barrister. Some might say that it is not for the Bar Standards Board to act as the guardians of private
morality or as thought police, no matter how indelicate the thought. Parenthetically, I can report that
the barrister was acquitted and the charge of professional misconduct dismissed, but only by a
majority of the Disciplinary Tribunal. The fact that opinions were divided eloquently exposes the
difficulties of applying the CoC to the facts of real life.
The CoC demands more. By paragraph 302:-
A barrister has an overriding duty to act with independence in the interests of justice; he must
assist the Court in the administration of justice and must not deceive or knowingly or
recklessly mislead the Court.
And by paragraph 303:-
A barrister (a) must prosecute and protect fearlessly and by all proper and lawful means the
lay client’s best interests and do so without regard to his own interests or to any consequences
to himself or to any other person ...
Finally, by paragraph 307:-
A barrister must not (a) permit his absolute independence, integrity and freedom from
external pressures to be compromised.
These lofty ideals may be put into more prosaic, and possibly more illuminating, language. A barrister
must put the interests of justice and his duty to the Court above all else. This is the first and great
commandment and the second is that, subject to the first, the barrister’s duty is to fight for his lay
client even if this results in pecuniary, professional or personal damage to himself or anyone else,
including his nearest and dearest. It is the barrister’s personal responsibility to see that they are
obeyed. The difficulty lies, of course, in applying those uplifting sentiments to the facts of a given
case.
Questions of professional conduct and behaviour come to be decided by a number of different routes.
First, there is the straightforward disciplinary charge of breach of the CoC against the barrister
following a complaint made to the Bar Standards Board by a third party, or brought by the Board of
its own motion. The complaint, once made, will be investigated by the Complaints Commissioner, a
full-time, lay, employee of the Board. If it is thought that the barrister has a case to answer he is
brought before a three or five person Disciplinary Tribunal, as already described. Second, he may be
the defendant in an action for professional negligence brought by an aggrieved lay client claiming to
have suffered loss by reason of the barrister’s incompetence. Finally, he may be the subject of a
‘wasted costs order’ made by a Court on application by a party, not necessarily the barrister’s client,
or occasionally of the Court’s own motion, on the ground that his conduct has occasioned unnecessary
expense to a litigant or the public. In reality, the interests of the litigant and the public will often be
one and the same, since if the public loses it will be the litigant who pays, except where the Legal Aid
Fund is involved. The two latter procedures may at first sight seem less critical of the barrister than
the first, since neither inevitably involves professional impropriety, they differ but little from each
8
other in practice, for two main reasons. First, the stigma, at least within the profession, and this is true
of both branches, of a formal finding of professional negligence is much the same as one of
professional misconduct. What Megarry called ‘the collegiate spirit’ of the Bar ensures that the word
soon gets round. Second, a finding of professional negligence will not be made unless a Court has
decided that the barrister failed to exhibit the skill and knowledge expected of a reasonably competent
practitioner in the circumstances, and a wasted costs order will often attract yet more odium. The
order is made only where unreasonable expense has been inflicted, which ought not to have been
incurred, and was incurred because of the unreasonable conduct of the lawyer in question. In that
event he is ordered to indemnify the loser out of his own or his insurer’s pocket. Insurance, as we
shall see, can therefore be much more than a tedious technicality. The three jurisdictions, while
apparently distinct, can frequently overlap to a great extent. For the sake of completeness, and to
avoid repetition, it needs to be made clear that virtually the same rules as those I have been describing
apply to solicitors.
How then, do these general principles of professional rectitude work in practice? Returning to the
duty to the administration of justice, first and self-evidently, the Court must not be actively misled.
The deception can be carried out with ingenuity. On Guy Fawkes Night in 1958, a Mr. Meek, later the
plaintiff (or Claimant as he would be called today) was plying his trade as a paparazzo in Trafalgar
Square in London. On that night Mr. Fleming was a Chief Inspector in the Metropolitan Police. It
being bonfire night there was unrest, to put it no higher, in Trafalgar Square, which Mr. Meek had
gone to photograph. During the course of the evening Mr. Fleming, together with a posse of officers,
arrested him on a charge of obstructing the police, and took him to a nearby police station, from
which he was released some hours later in the night. The plaintiff claimed that he was subjected to
violence which the police said was justified since he violently resisted arrest. Twelve days later, Mr.
Meek began proceedings against the Chief Inspector for assault and wrongful imprisonment. Just over
one year later, in December 1959, and before the action had been heard, the defendant was convicted
of two disciplinary offences under the Police Regulations, both involving irregularities connected to
trials in a magistrates’ court. In consequence, he was demoted from Chief Inspector to Station
Sergeant. This was known to his solicitors, and to leading and junior counsel who appeared for him at
the trial of Mr. Meek’s action, which took place in October 1960.
The erstwhile Chief Inspector attended the hearing in plain clothes instead of in uniform, which the
police usually wear in court. All the other police witnesses wore uniform. His leading, and possibly
also junior, counsel addressed him throughout as ‘Mr. Fleming’ rather than by his rank – now Station
Sergeant, as we have seen. In evidence in chief he was not asked his name, rank and number, as was
and still is de rigueur. Mr. Meek’s counsel and the trial judge frequently referred to him as ‘Inspector’
or ‘Chief Inspector’, and were not corrected. His leading counsel repeatedly referred to his progress
through the ranks of the police, without saying how far that progress had gone, with the intent of
creating the impression that he was an upright and conscientious policeman. The case was heard by
judge and jury, which gave a verdict for the defence.
9
When the full story came to light the plaintiff unsurprisingly appealed, and made an unusual
application to call fresh evidence, leave to do which is seldom granted. The evidence was, of course
of the history of the defendant’s demotion, and the goings-on at the hearing. Nevertheless, leave to
call the evidence was given, and the leader, who was alone responsible for the way in which the case
was presented, and of whose approach both his solicitors and junior expressly disapproved, was later
disciplined by the Benchers of his Inn. As may be imagined, the case attracted a good deal of interest,
and not only in the trade press and the Inns of Court. An unusual feature of the proceedings was that
the silk was completely candid about the preparation for trial and his role in it. With the leave of the
Court he made a statement in public after the appeal had, inevitably, been allowed, in which he
acknowledged that the deception (although he did not call it that) was his sole responsibility, that he
had created it only after anxious consideration, and in spite of the opposition from the other lawyers
on his team. If one takes those words at face value, and there is nothing in the report to discourage
this, it is striking that a very senior leader could betray such a failure of judgment, which shows how
complex and tricky these questions can be.14
The duty to the Court does not end with the duty not actively to mislead. Paragraph 606 of CoC
provides:-
A ... barrister must not devise facts which will assist in advancing his lay client’s case and
must not draft any [document] containing ... (c) any allegation of fraud unless he has clear
instructions to make such allegation and has before him reasonably credible material which
as it stands establishes a prima facie case of fraud ...
As will be apparent, that does not entitle a barrister who makes an allegation of fraud in, say, a
pleading, to hide behind his client’s instructions. He must use his own independent judgment to assess
whether there is on the face of the documents or other evidence enough to present a reasonable
argument that fraud has occurred. This occasionally produces dramatic results. Two gentlemen called
Medcalf and Mardell jointly devised a television quiz game based in some way on snooker, the details
of which do not matter. After some difficulties they sold the idea to the BBC, which put it on air.
There, it met with some success, until the creators fell out over their respective shares of the royalties,
and took to litigation. This took the form of an action in the Chancery Division of the High Court in
which Mr. Medcalf, the claimant, sought a declaration that there was a binding partnership agreement
between the two under which he was entitled to a share of the profits which the show had generated,
together with damages for breach of confidence. This kind of case, in which the claimant succeeded,
incidentally, is not uncommon in show business.
Numerous interlocutory hearings and appeals followed, until the defendant served two witness
statements, settled by junior counsel, alleging that the claimant, his solicitors, and a firm of court
shorthand writers had conspired to forge the transcript of the original trial. The alleged intention was
to show Mr. Medcalf in a more unfavourable light than would otherwise have been the case. Together
with leading counsel, who was subsequently instructed, she went on to settle other documents in
which the claims were repeated.
14 Meek v Fleming [1963] 2 QB 366
10
The trial judge emphatically rejected the allegations and the defendant appealed. He cannot have been
the easiest of clients, since her withdrew his instructions from his solicitors and both counsel shortly
before the date set for the hearing, and then reinstated them at the last minute. The hearing in the
Court of Appeal lasted no less than four days, after which the appeal was dismissed without counsel
for the claimant being called on, always an indication that the Court saw no merit whatever in the
arguments it had heard. The claimant’s counsel then applied for a wasted costs order against both
counsel, on the ground that they had improperly breached paragraph 606 of the CoC, by making
unfounded allegations of fraud. If granted, the consequences would have been daunting. First,
disciplinary proceedings would almost certainly have followed, to which it is difficult to see that there
would have been any defence. Next, the professional reputations of both would have been
besmirched, with serious consequences for the flow of their work and their practices. Finally, the
financial consequences would have been grave. The costs of a four day hearing with two counsel on
each side will have been great, to which must be added those of numerous interlocutory hearings, for
which the barristers, or their insurers, would have been personally liable.
Here a digression becomes necessary. There is an unbreakable rule of law as well as of professional
etiquette, that all communication between a lay client and his legal advisers for the purposes of
litigation is and remains confidential. The lawyers, both counsel and solicitors, are absolutely
precluded from revealing the contents of those communications to third parties, and only the lay client
is able to waive this so-called legal professional privilege. This the defendant refused to do, for
reasons as to which one can only speculate. Consequently counsel were constrained to fight the
application for the wasted costs orders with exceedingly blunt weapons, since they were unable to
reveal what their instructions had been or what material, if any, they had seen which justified the
allegations of fraud and forgery.
Perhaps predictably, the Court of Appeal, by a majority of two to one, granted the claimant’s
application and made wasted costs orders. The dissenting member, incidentally, was a puisne judge,
while the majority were Lords Justices; the puisne now sits in the Supreme Court as Lord Wilson.
However, the House of Lords rode to counsels’ rescue. No judge involved at any stage, of course, had
any idea what had led to the allegations of fraud and forgery, and the House was not prepared to draw
the inference that there had been nothing to justify the allegations, even though it might not have been
admissible as evidence in open court. In the circumstances it was held that counsel were entitled to the
benefit of the doubt, and the wasted costs orders were quashed.15 This bizarre tale kept its twists until
the very end. After the speeches had been drafted but before they were delivered the defendant, or his
solicitor, wrote to the House to the effect that the defendant was prepared to waive his legal
professional privilege after all, but their Lordships were having none of it.
While with hindsight the outcome looks appropriate and fair, especially if one is a member of the Bar,
the case illustrates once again the difficulty of applying what appear at first sight to be straightforward
rules to a given set of facts. The division of experienced and knowledgeable judicial opinion which
emerged is striking. Even the House of Lords was not unanimous on all aspects of the case. One
member dissented in part from the others, on the ground that it would have been manifestly
15 Medcalf v Mardell [2003] 2AC 120; [2002] UKHL 27
11
impossible for solicitors and at least one or possibly two firms of court shorthand writers to have
conspired to falsify a transcript, although the majority does not seem to have been troubled by this.
The difficulty characteristic of these cases is emphasised by another leading case on wasted costs
orders, in which the Court of Appeal gave useful guidance on the principles of the jurisdiction.
In doing so, the Court overruled no fewer than six wasted costs orders made by lower courts. Its
ruling established that an order should be made where the advocate’s conduct is either so improper as
to justify disciplinary action by the Bar Standards Board or the Law Society, as the case may be, or
where that conduct falls short of what the profession as a whole regards as justifiable. Likewise,
where the conduct is designed to harass the other party to the litigation rather than advance the
interests of justice, whatever the motive. Thus, excessive zeal in promoting a lay client’s interests may
be in one sense a laudable application of the principle that those interests should be fearlessly pursued
and protected, but is nevertheless a reprehensible breach of the paramount requirement to further the
administration of justice. The Court also took the opportunity to stress that all courts should be slow
to make wasted costs orders, because, as it said, all advocates, at least when on their feet in court,
have to make instant decisions in the heat of the moment. This being so, mistakes are inevitably made
which hindsight shows to have been, to put it no higher, unfortunate.
The Court went on to express concern at the number of wasted costs orders which the lower courts
had been making. To underline the point, it selected three cases in which County Courts had made
orders, and one from each division of the High Court – Queen’s Bench, Chancery, and Family. Time
does not permit of a detailed examination of them all, but two examples are instructive. The
eponymous appeal which gave the authority its title,16 was a County Court possession action by a
landlord, to recover possession of a flat from a tenant. Both firms of solicitors who advised and
appeared for the parties mistook the infamously complicated and obscure provisions of the Housing
Acts which applied, and argued the case on an entirely false basis of law. The experienced judge who
tried the case did not spot the mistake, and the result was that the landlord recovered possession of the
flat when he should not have done. It took several later contested actions and appeals until the Court
of Appeal finally put matters right. While recognising that the solicitors’ original errors had brought
about the flood of litigation, due to their having unwittingly misled the courts, the Court
acknowledged that the legislation was so byzantine that none of the lawyers, who by this time
included specialist landlord and tenant counsel as well as judges, could be criticised for having acted
improperly, unreasonably or negligently, these being the only grounds on which a wasted costs order
could be justified.
Another case of the six in which the Court of Appeal discharged wasted costs orders is perhaps even
more striking. A property developer of what the court called, circumspectly, ‘somewhat unsavoury
reputation’ had fallen out with the other party to a conveyance of land which he wished to develop.
He changed his solicitors before the trial of the action, always a sign that presages trouble and teaches
the canny practitioner to proceed warily, and later retained counsel very shortly before the hearing.
The litigation went to the High Court, Queen’s Bench Division, showing that the amounts of money
involved were considerable, given the wide jurisdiction in these matters given to the County Court.
16 Ridehalgh v Horsefield [1994] Ch. 215
12
However, counsel never received a brief, nor any papers at all until the lay client turned up at court on
the day of the hearing with a hopelessly inadequate and only partly legible bundle of correspondence.
Thus poorly prepared and furnished, counsel soldiered on as best she could, in the face of
considerable and understandable judicial criticism and hostility. Her difficulties were added to by the
fact that the Court was unable to see any merits in her client’s case. Numerous amendments had to be
made to the pleadings, and because she had gone into battle almost wholly unprepared she had to
apply for many adjournments, which the judge granted with increasing reluctance, although grant
them he did. At the end of the hearing, which ended in the almost inevitable defeat for her client, the
judge made a wasted costs order against counsel although not, puzzlingly, against her instructing
solicitor. The main ground for the order was that she ought not to have accepted the brief in the first
place, given the shortness of time which she was given to prepare it. This prompts the comment that
this reason was in large part irrelevant, since no amount of time between the receipt of the instructions
and the hearing would have mattered, since the papers, such as they were, only arrived in the morning
of the trial. It should be added that inability to give the case proper attention or unfamiliarity with the
area of law involved are legitimate grounds for declining instructions, by way of an exception to the
‘cab rank rule’, to which, as already promised, I shall return.17
The Court of Appeal allowed counsel’s appeal against the costs order, on the principal ground that the
cab rank rule obliged her to accept the instructions, because she was familiar with the field and the fee
offered was adequate (if indeed it was ever paid, about which one wonders). In invoking the cab rank
rule to exonerate counsel, the Court must be taken to have determined, contrary to the view of the trial
judge, that the rule prevails over all the other injunctions in the CoC, except always that of advancing
the interests of justice. Even so, it is not hard to understand why the trial judge took the view that he
did. It must have been aggravating in the extreme to be faced with repeated amendments to the case as
originally pleaded, and to have to grant multiple adjournments, all of which added to the already
substantial costs of the action. In these cases there are usually shades of grey rather than crisp
contrasts between black and white.
There are other areas of interest arising from the duty to further the administration of justice. It is
important to ensure that the Court shall not fall into error through ignorance of the law once it has
found the facts. It is therefore part of counsel’s duty to see that he is up to date in his knowledge of the
law. The importance of this rule was brought sharply into focus by the Court of Appeal in 2000. There
had been a multiple vehicle accident on the M3, in which a motor cyclist had been badly injured. A
police report made shortly after the event identified the driver of the car which had actually struck the
cyclist once he had fallen off his bike, causing the injuries. However, the report was incomplete, and
another police document revealed that a second car knocked the cyclist off the bike, and that the first
driver had been unable to avoid running him over. The claimant’s solicitors did not obtain the second
report until long after the limitation period for bringing proceedings against the second car driver had
expired. The question arose whether the innocent claimant should be deemed to have known what his
solicitors ought to have discovered in the first place. The query had been answered a few months
before the motor cyclist’s case came up for hearing in the County Court, and the decision had been
reported in the law reports. The advocates for both sides were unaware of the case, and told the judge,
to his expressed surprise, that there was no authority which covered these facts. The judge therefore
17 CoC paragraph 603
13
had to decide the case by the light of nature, and, as it happened, reached the wrong result. Had the
earlier case been drawn to his notice, he would not of course have made the mistake. The law,
incidentally, is that a lay client is bound by his solicitor’s action or lack of it. The remedy in case of a
disaster of this kind is for the lay client to sue the incompetent lawyer in an action for professional
negligence, if need be; but that is by the way. Allowing the appeal, the Court of Appeal was highly
critical of the gaps in counsels’ legal education.
This sad state of affairs should happen less frequently nowadays, for two reasons. First, for some time
now it has been a prerequisite to the obtaining of a practising certificate from the Bar Standards Board
that a barrister undertakes 12 hours (soon to be increased to 24, it seems) of continuing professional
development in each calendar year. This should at least reduce the chances of the court being misled
through idleness or inadvertence. Second, the proliferation of legal databases means that the law can
be found at the click of a mouse without the researcher having to leave the comfort of his own study.
Prosecuting Counsel
It has long been established that prosecuting counsel in a criminal case should not strain for a
conviction. His function is to see that the evidence is laid before a jury fairly, and that the defendant’s
case is properly tested, but no more. An especially egregious example of failure to observe that
requirement came up in a case in the Privy Council on appeal from the Cayman Islands. A
businessman was charged with stealing money from trust funds which he administered for investors.
The trial lasted from June until August 1997, over 41 hearing days. During it prosecuting counsel,
nearly always with tacit or vocal support from the judge, interrupted the evidence of the defence
witnesses, of the defendant himself, his counsel’s submissions, and even the judge’s summing up,
with comments both tendentious and disparaging of the defendant and his case. On appeal complaint
was made of seventy-nine such interruptions, no less. During cross-examination of the defendant the
following exchange took place:-
Counsel: I am suggesting that your dishonesty is matched only by your brazenness.
The Judge: Answer.
The Defendant: I would suggest you are wrong.
Counsel: Which is it? You are more dishonest than you are brazen, or you are more
brazen than you are dishonest?
Also, during the defendant’s examination in chief, his counsel asked what one of the relevant trust
funds comprised. The prosecutor interrupted to ask whether this referred to the time when the
defendant took out $500,000 or $200,000. All this went unrebuked by the judge. Indeed the excerpt
from the transcript which is quoted above shows him joining in. Not the least startling feature of the
case is that the Court of Appeal of the Cayman Islands, which must be a strange place, dismissed the
14
defendant’s appeal after his inevitable conviction. The Privy Council, on the other hand, had no
difficulty in allowing the appeal and quashing the veredict.
What is said above does not attempt to be an exhaustive survey of the consequences of the advocate’s
duty to assist in the administration of justice. Many of the others might seem to be self-evident. For
instance, cases musts be conducted courteously; also, there are sumptuary rules regulating court dress.
Until relatively recently, for instance, ladies could not wear trousers, and male juniors were expected
to wear waistcoats. As a sign of the times, the Supreme Court recently directed that counsel need not
robe when appearing before it. More seriously, there are strict rules against rehearsing and coaching
witnesses, on which I touched earlier18. While the CoC permits discussion of the evidence between
witness and counsel, and encourages helping witnesses to become familiar with court layout and
procedures, the boundaries between what is acceptable and what is improper are far from clear, to me
at least, and in my view the wise man will give his witnesses no more than the time of day,. Here
United Kingdom practice differs greatly from that in other common law jurisdictions such as the USA
and India.19 I would be remiss if I did not also mention the important prohibition against an advocate
putting forward a personal opinion on fact or law. A barrister never thinks or feels about anything; he
only submits. This rule is difficult to remember and to follow when one’s wig is white, but as it
darkens things get easier.
Duty to the Client
As will have been perceived long ago, the position of an advocate in court is complicated and, to a
degree, schizophrenic. At the same time as he carries out his primary duty of assisting in the
administration of justice, he must advance his client’s interests by all legitimate means. This can
involve a series of delicate balancing acts, and is said to demand high standards of professional skill
and probity, although I could not possibly comment.20 Historically, this has been the justification for
the judges refusing to hear advocates other than members of the legal profession and litigants in
person. Not that there is an irrebuttable presumption that the latter are unimpeachably upright, but
every man must be allowed his day in court, represented in accordance with his wishes, and by
himself if he insists or cannot afford a lawyer.
Mention has already been made of the cab-rank rule. This is the most obvious and outstanding
manifestation of the barrister’s, (though not the solicitor’s) duty to his client. Apart from the differing
obligations in respect of clients’ money, it is probably the most striking distinction between the two
branches of the profession. On the one hand, a solicitor has always been, and remains, free to pick and
choose whom he shall represent. He may, I suppose, decline to accept instructions because he does
18 CoC paragraph 701
19 See Megarry, op.cit. pages 48-50
20 See Abse v Smith [1986] QB 536
15
not like the colour of the potential client’s hair. Certainly, he may end his retainer if the client insists
on him pursuing a case which he thinks untenable and bound to fail.21
The cab rank, by contrast, obliges a barrister to make himself available to any lay client where the
case is within the area of his competence and where an appropriate fee is offered. He is taken to be in
the same position as a taxi on a rank with its light on22. While unanimous that the cab-rank rule is
subordinate to the duty to the court, judicial opinion has been divided as to its importance. Some have
taken it almost for granted, assuming that it does little more than state the obvious. The barrister is
taken as a matter of course to be disinclined to discriminate between potential clients, undeterred by
the prospect of a disappointed or disgruntled litigant wishing to reopen a case in which he was
unsuccessful or take revenge by suing his brief for negligence. That was much the approach of the
majority of the House of Lords as recently as the early years of this century23. On the other hand, in a
partly dissenting speech in the same case Lord Hobhouse of Woodborough adopted a stance which
appeals to me. He stressed that the rule is fundamental and essential to a liberal legal system. I
respectfully agree, for several reasons. (1) Advocacy is an artificial and esoteric art, which can only be
performed with knowledge of the law and procedure, and enhanced by constant practice. (2) It follows
that most litigants will not remotely aspire to the skills needed if they are to present their cases
properly and, literally, do themselves justice. This is true of a trial before a judge sitting alone, and
even more so in a trial on indictment with a jury, where liberty and reputation may be at stake. (3)
Experience has shown that in almost any case, the outcome is so important to the party that he will be
to a greater or less extent incapable of arguing with the detachment needed to achieve the best result.
‘A lawyer who acts for himself has a fool for a client’. (4) It follows that a layman compelled to go to
law needs access to a corps of experienced advocates in his hour of need. It is also fundamental to the
rule of law that that access shall be available no matter how unpleasing the individual or distasteful
his behaviour. (5) As both Thomas Erskine and Dr. Johnson perceived in the eighteenth century, a
barrister who takes it upon himself to choose whom to represent is in danger of usurping the functions
of the judge and jury, and does so without knowing what the evidence will be, which cannot be right.
(6) The rule fortuitously works to the Bar’s advantage. If it is known that a barrister has virtually no
choice of whom to act for, he cannot be criticised personally for arguing the case which his
instructions constrain him to advance, no matter how disagreeable the task may be. (7) It is not to be
taken for granted that if the cab-rank rule were repealed no one would waive the right to decline to
act. That is demonstrated by the case of the solicitor who, for entirely proper reasons decided not to
act for the client who insisted on him arguing the unarguable.24 However, it is by no means clear to
me that the same would hold good for a solicitor advocate, although the point has yet to be decided by
a court. The way in which the cab rank rule operates in practice was well demonstrated by the recent
case which ended in the conviction of the murderer of Millie Dowler.25
The defendant in that case was a serial rapist and murderer. He abducted and killed the schoolgirl
Millie, in circumstances which attracted wide public interest. Leading counsel who defended him was
compelled by his instructions to put unpleasant and distressing allegations to the victim’s parents,
21 Richard Buxton (a firm) v Mills-Owens [2009] EWHC 1851
22 CoC paragraph 602
23 Arthur J Hall (a firm) v Simons [2002] 1 AC 615
24 See Note 25 above
25 R v Bellfield (2011) unreported
16
incurring considerable personal odium from many people who should have know better. To their
credit others who knew and understood the cab-rank rule came to counsel’s defence publicly. The
distinctions between the two branches of the profession have become increasingly indistinct, as I hope
I have managed to demonstrate already. Perhaps the point may turn out to be more academic than
practical, because in some, perhaps many, cases a solicitor could decline instructions before litigation
even became a possibility.
This leads to another related but separate facet of the duty to the client. The obverse of the cab-rank
rule is that a barrister may not accept instructions if to do so would cause him to be ‘professionally
embarrassed’26. The Code gives eight specific examples of such embarrassment, these ranging from
lack of competence to lack of time to prepare the case, by way of instructions which seek to limit his
discretion as to how the case shall be conducted, and the existence of conflicts of interest. These latter
may be conflicts between two more parties to the case, or between the barrister and someone involved
in the matter. An example of the former is the ‘cut-throat defence’, where two or more co-defendants
blame each other for the act complained of, while each maintaining his own innocence. In those
circumstances one advocate cannot appear for both. A barrister may also be embarrassed if, for
example, he is asked to appear against a relative, or even, perhaps, to appear where a relative is a
witness for the other side. This is less clear cut, since much will depend on the precise circumstances.
A different trap for the unwary is posed by the solicitor who has been ‘blacklisted’, that is, in the
formal language of the CoC, placed on the register of solicitors whose credit has been withdrawn by
the Bar Council. This will happen when a solicitor fails to pay counsel’s fees after a specified number
of requests for payment, followed by a formal letter from the Chairman of the Bar. It is professionally
improper for a barrister to accept instructions from such a solicitor. One reason, of course is to protect
the Bar against bad payers, but there is the additional justification that one should not be distracted
from the matter in hand by worries that one may not be paid. The barrister’s clerk carries the heavy
burden of keeping an eye on the blacklist, which changes constantly as new firms are added and
others removed. In practice this can be discharged by having recourse to a software programme which
most sets of chambers have. This enables the financial status of a solicitor’s firm and whether it has
been blacklisted to be checked with two clicks of a mouse, and it is not necessarily a defence to a
charge of misconduct that your clerk forgot or neglected to check.
Professional embarrassment can come from other directions. Other than the examples given above,
confidential information about a party to litigation must stay confidential. Therefore it would be
wrong to accept instructions if to do so would involve disclosure, or even the risk of disclosure, of
information about someone or their affairs acquired in earlier litigation. In an age of specialisation and
in fields where there is a relatively small body of specialist counsel - shipping, some types of
commercial work or town planning, for example – this can be a very real problem, and counsel and
clerk need to be vigilant. In a not dissimilar case, a large firm of accountants which set up ‘Chinese
walls’ to protect confidential information about a former client from disclosure to a later client was
held to be professionally embarrassed and was restrained by injunction from accepting the latter’s
instructions, even though the teams looking after the clients were separate and even worked in
different buildings.27. In chambers, a good clerk with experience and a long memory will know to
26 CoC paragraph 603
27 Prince Jefri Bolkiah v KPMG [1989] 2 AC 222
17
check with his principal before accepting the instructions where there is a possible conflict. More
intimately, where counsel for the prosecution in a criminal case was living with the defendant’s brief,
that caused professional embarrassment at least, if only because of the risk of breach of confidence28
On the other hand, there are many shades of grey. There is the question of social or other contact
between advocate and a witness for the opposing party, which might be problematical. Unhelpfully,
again, the answer depends on the circumstances. One example comes, unexpectedly, from a
bankruptcy case. During the hearing it emerged that counsel for the petitioning creditor had had some
slight social acquaintance with the debtor’s wife a number of years before. The question was whether
this entitled the debtor to a retrial, he having had a bankruptcy order made against him, on the ground
that counsel was professionally embarrassed, since a neutral observer might think that he could have
had information about the debtor’s affairs. This might have led to the conclusion that, in the by now
clichéd phrase, justice had not been done, or not been seen to be done. In support of this it was argued
that counsel had cross-examined the debtor and his son at length on the domicile question. However,
the argument got short shrift all along the way.
In the Court of Appeal, the Court observed that, first, the debtor could cite no instance where the
social contact could have affected the outcome of the case – case specific facts again. Second, the
debtor could point to no confidential information to which the barrister was privy because of his
acquaintance with the lady. Third, the cab-rank rule, once more, meant that counsel was rightly
reluctant to reveal the fact of the acquaintance, because this would have possibly infringed the rule.
Fourth, and for the same reason, the court should be even slower to remove him from the case.
Although there was held to have been no impropriety, one is left with the suspicion that counsel might
have been wiser to tell his opponent informally in the robing room about the circumstances, leaving
him to take the matter up with the judge if he wished.
There is a widely held misconception about membership of barristers’ chambers which never ceases
to surprise. The fact that opposing counsel in a case are members of the same chambers is no obstacle
to their appearing on opposite sides, any more than one is precluded from appearing before a
colleague in chambers sitting as, say, a Crown Court Recorder, Deputy High Court Judge, or
arbitrator. This commonly happens, especially in specialised fields such as commercial law or town
planning, as we have seen before. Members of chambers share administration and expenses, but it
ends there. We and our clerks are well-used to setting up Chinese walls so as to keep the contents of
instructions and correspondence confidential. It soon becomes second nature to do so. Nor does the
fact that one may have eaten, drunk and laughed with one’s learned friend, as one often has, prevent
one from doing one’s best to do him down forensically. It comes back to the cab-rank, and any other
rule would drastically limit the choice of counsel available to lay clients and instructing solicitors.
Even so, there is a surprising wealth of reported cases in which the less well-informed have tried, with
28 R vBatty [1996] Crim. LR 910. I doubt whether there would be objection to sharers of a bachelor flat
appearing against each other.
18
uniform lack of success, to get advocates or members of tribunals disqualified because they share
chambers29.
Before parting with the topic, some observations about the duty of counsel in conducting cases in
court are apposite. (1) The duty to preserve confidentiality is to all intents and purposes absolute, and
has existed since time immemorable. I have been unable to find any reported case on the point later
than 1839, a fact which speaks for itself. (2) There is the ticklish area of witnesses and witness
coaching. The CoC permits, and even encourages, the giving of advice to witnesses unfamiliar with
courts as to procedure and court layout, and the like30. Yet it is strictly forbidden to coach them. In
2002 there was a violent disorderly incident at the Yarlswood Detention Centre. Many of the staff
were threatened and/ or attacked by the inmates, and much distressed as a result. Their employer,
advised by solicitors in connection with related civil proceedings, provided the employees with
counselling, which in part involved them in reliving their experiences in groups together with their
counsellors. This, done with the best of intentions, persuaded the judge at the trial of the allegedly
rioting inmates to throw out several of the prosecutions at the close of the Crown’s case, on the
ground that the witnesses had been or might have been improperly coached31. In this sensitive area, as
hinted already, the prudent advocate will see as little as he decently can of the witnesses of fact in his
team, and will be circumspect as to what he discusses with them. On the whole he will not say much
more than ‘Good Morning’. (3) The presentation of the case is the advocate’s personal responsibility,
and he must not put forward arguments which he considers untenable, merely because the lay client or
his instructing solicitor urges him to do so32. (4) Superfluously perhaps, it is a rule of law rather than
of etiquette or common sense that the advocate must be present in court throughout the trial, and
arrive punctually at court33. The wise barrister and his clerk will therefore take care to see that he does
not have to be in two places at once, if possible. My impression is that this rule is more strictly
adhered to now than in the past, when leaders and juniors used to box and cox from court to court
with impunity. (5) Dress. Even in these relaxed times, subfusc suits are de rigueur for both sexes,
worn with the appropriate robes – court dress for silks, and stuff gowns for juniors. Only
comparatively recently have ladies been allowed to wear trousers in court.
Conclusion
To round off, the question frequently asked at social events, ‘How can you sleep easy after defending
someone you know is guilty?’ requires an answer. It is put to practising barristers by strangers with
almost monotonous frequency. The first response is the annoying lawyer’s retort – ‘What do you
mean by “know”? The recent cause celebre of the killers of Stephen Lawrence34 illustrates the point
well. Before the trial opened, there was general suspicion that the defendants were in the gang which
had committed the crime, even though they had been tried and acquitted, and, or perhaps because,
29 See, for example, Laker Airways v FTP [2000] 1 WLR 113, where an American company complained that
two members of the same chambers in an arbitration were in the ‘same firm’.
30 CoC Witness Standards
31 R v Momodou [2005] 1 WLR 3442
32 CoC paragraph 708
33 Cottam v Banks (1847) 1 Saund. 302
34 R v Norris & Dobson (2012), unreported
19
they had been investigated by the Macpherson inquiry and the inquest into the death of the boy.
Nevertheless, those suspicions, even after the uncovering of the fresh forensic evidence which led to
the retrial, would not have, as it did not, entitled the defendants’ counsel to refuse to act. They had, in
the words of the Court of Appeal noted earlier, to soldier on, and this in spite of any distaste they may
have felt for the individuals and revulsion at the crime. Once more unto the cab-rank.
It must be inferred from the way in which the defence was handled that the two men continued to
assert their innocence, as they had done throughout the previous eighteen years, and one did after the
verdicts. This was the basis on which the defence was run, notwithstanding its frailty, as attested by
the speed with which the jury brought in unanimous guilty verdicts after a very long trial. Suppose
however, that one or other defendant had confessed to his legal team that he had wielded the knife,
and still insisted on pleading not guilty. If there were reason to think that the confession was false, it
would be proper to point this out, and to give the defendant the opportunity to withdraw the
confession and put forward a defence asserting innocence. In the absence of such reasons, there would
have been only two choices. The first, if the defendant had insisted on his advisers asserting his
innocence, was to return the brief. As will be readily perceived, in one sense to do so would infringe
the rule that the client’s interests come first. The circumstances of the Lawrence case offered a
second choice, if a bold one. The forensic evidence was said to be flawed, and the DNA samples to
have been contaminated while in the hands of the police. It would have been open to the defence to
challenge that evidence and put the Crown to proof of guilt, without positively suggesting that the
defendant was innocent. In all probability it would then have been necessary to submit at the end of
the prosecution case that the defence had no case to answer, and not to put the defendant in the
witness box. That always takes courage, because juries are wise enough to draw their own inferences
from the fact that a defendant refuses to face cross-examination.
I suspect that if put in the position of defence counsel that is what I would have done. Thereafter I
would reject accusations of casuistry or the like, and do so with a clear conscience. It is still
fundamental to the rule of law that innocence is presumed until a court decides otherwise, and
although the principle has been eroded in recent years, it is still a good idea to cling to it while you are
still allowed to.