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Is the Bar still a stand-out example of adherence to high ethical standards? Desiree Artesi discusses the practicalities of professional ethics with Andrew Walker QC
It is a truth universally acknowledged (but never out loud) that an individual barrister, hemmed in by increased competition and, in some areas of law, decreased fees, must be in want of time to observe certain professional ethics.
Yet while there are undoubtedly many commercial pressures on barristers right now, the requirement for high ethical standards remains supreme. This is a time, after all, when the profession finds itself under ever-greater scrutiny from the public, media and regulators, underlining the importance of maintaining high standards. Professional ethics has become a hot topic. No one wants to read adverse headlines about a barrister who has erred or deliberately crossed the line.
In recognition of this, professional ethics is one of the key training areas on the programme of the newly created Inns of Court College of Advocacy (ICCA), which launched in June 2016. The ICCA, the new incarnation of the Advocacy Training Council, is overseen by Derek Wood CBE QC who is Chair of its Board of Governors. Speaking at the Annual Bar and Young Bar Conference in October, Wood highlighted its importance in his address: ‘Ethical advocacy in the modern adversarial system’.
Over tea in Inner Temple, I meet the outgoing Chairman of the Ethics Committee and Vice-Chairman of the Bar for 2017, Andrew Walker QC, to talk about his work and the importance of ethics generally. With great emphasis, 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.’
So what has he learnt about the practicalities of professional ethics from his experience as committee chair, as distinct from a jobbing Chancery and commercial practitioner? One of the key points Walker highlights here is that different areas of practice tend to raise different ethical issues. Complications in crime and family work, due to the nature of the client base and the sort of problems that clients experience, might not arise at all in the context of a more commercially based practice.
A priority for the committee over the last few years has been to improve the services on the ethics line, and to publicise it more widely among practitioners, Walker explains. One of the reassuring aspects of his time on the committee is seeing members of the Bar identifying the ethical angles and genuinely striving to arrive at the right solution. Colleagues are often a first port of call, but when they are unsure or colleagues are not on hand, they call the ethics enquiry line.
So, it seems there is generally a high level of awareness of the line’s existence. Walker tells me that during the first half of 2016, 500 calls and 60 emails were received per month. The most frequent category of enquiry concerned returning instructions (covering a wide variety of situations), followed by questions relating to direct access, and then practising requirements.
It’s true to say that to many in the profession, the revised Code and Handbook, however useful, can appear intimidating. Practitioners, junior and senior alike, can be filled with dread navigating their way through it. But Walker points out that although the old Code of Conduct might have appeared to be shorter, there were lengthy annexes to wade through, and the structure of the new Code does improve in some respects on the old.
Explaining the Code’s current layout, he says: ‘It’s a document which tries to identify the core duties, and then to show in rules and guidance what those mean in practice. Some suggest that we should go no further than set out core duties and so have a one-page Code of Conduct. But then everyone would constantly be asking themselves (or the Bar Council) “well what does that mean?” in a particular situation, which would not be helpful to anyone.
‘So, it’s a question of finding the right balance between core principles, and the detailed rules and guidance.’
One way in which the Bar Council both helps barristers to act ethically and helps the Bar Standards Board (BSB) to do its job, he suggests, is through providing a ‘more practical take on things’ in a way that does not ‘weigh down the handbook in a dictatorial way’.
Amongst the most important tasks of the committee is to ensure that the Bar Council guidance is constantly revised, so that practitioners are given the most up-to-date guidance possible. The work of updating the guidance falls to the individual committee members who give generously of their time for this valued work.
Considering whether self-reporting is effective in practice, I put forward the following scenario: a trial is under way in the Crown court, tempers flare, and heated words are exchanged between opposing counsel. Since 2014, barristers have owed a duty to report themselves and each other to the BSB, but neither reports this incident. What is his response to those who might see this as endemic of a profession brought up to close ranks?
Walker replies: ‘There is a duty to report only where there are reasonable grounds to believe that there has been serious misconduct. Any misconduct can be reported, but in framing the duty, the BSB has focused on what the public interest truly requires. Both barristers should have reached a sensible judgment about this in all the circumstances, taking into account any intervention from the judge. It is far from clear that serious misconduct was involved, or that further action was called for, but I would need to know more.’
I ask him how seriously he thinks barristers are taking their duty to report? ‘Barristers,’ he observes, ‘have not in my time been brought up to close ranks on serious misconduct, nor have I seen that happen. Consistently with this, our experience indicates that barristers are taking their duty to report very seriously.
‘Had the exchange in your scenario been prompted by the discovery, for example, that one of them had deliberately misled the court on an important issue at an earlier stage, then I would fully expect that to have been reported. This has never been acceptable behaviour, and is likely to be reportable despite any belated correction.’
What priority is being given to ethics by the profession and, in particular, by the ICCA? Walker sees the work of the Inns, the Bar Council and the Circuits in promoting high ethical standards as very important, but also as complementary to what goes on peer-to-peer on a daily basis – in chambers or in robing rooms.
The Inns, he says, have an important role to play, particularly at the junior end in enabling new practitioners to have their basic ethical radar fine-tuned by hearing from experienced practitioners discussing the issues.
While the committee holds seminars and publicises issues and guidance, the Inns have a critical connection with junior practitioners through the New Practitioners Programme, which makes them well placed to do more active work at that stage in barristers’ careers.
‘I would hope that, as in so many other spheres, there could be more interchange between the Bar Council and the Inns.’
‘On difficult issues and current problems,’ he says, ‘the Committee tries to reach a common position on the right ethical response, and it would be useful to have input from those involved with ethics training in the Inns.’
Walker adds: ‘From the opposite perspective, members of the committee are likely to know more about the handbook (not least because they spend an awful lot of time looking at it and thinking through the dilemmas that arise), and this is perhaps an area in which the committee could provide useful input into the work of the Inns.’
Last year, the committee received more expressions of interest in joining than it was able to accommodate, but it remains keen to receive expressions of interest from a wide range of practitioners, including groups who are underrepresented in the profession or on the Bar Council.
Finally, I ask Walker to tell me something about himself that no one at the Bar would know. He replies: ‘Do many barristers know how to lay a traditional hedge? I claim no particular skill, but I have a couple of hedges at home which seem to have survived the process.’ The ancient art of nurturing and managing boundaries seems somehow fitting; I feel sure those hedges will be anchored in place and flourishing in years to come.#
Contributor Desiree Artesi, Thomas More Chambers and a member of the Counsel Editorial Board
SOURCES OF HELP
Desiree Artesi of Thomas More Chambers specialises in Privy Council appeals and constitutional and administrative law. She is an affiliate expert at the Centre for Law and Social Justice at Leeds University; a legal chair of a regulator of the telecommunications Industry; and a member of the Editorial Board of Counsel Magazine. She is a Master of the Bench of Inner Temple; an equity champion on issues affecting Black barristers; and a mentor to young people from disadvantaged socio-economic backgrounds irrespective of race.
Yet while there are undoubtedly many commercial pressures on barristers right now, the requirement for high ethical standards remains supreme. This is a time, after all, when the profession finds itself under ever-greater scrutiny from the public, media and regulators, underlining the importance of maintaining high standards. Professional ethics has become a hot topic. No one wants to read adverse headlines about a barrister who has erred or deliberately crossed the line.
In recognition of this, professional ethics is one of the key training areas on the programme of the newly created Inns of Court College of Advocacy (ICCA), which launched in June 2016. The ICCA, the new incarnation of the Advocacy Training Council, is overseen by Derek Wood CBE QC who is Chair of its Board of Governors. Speaking at the Annual Bar and Young Bar Conference in October, Wood highlighted its importance in his address: ‘Ethical advocacy in the modern adversarial system’.
Over tea in Inner Temple, I meet the outgoing Chairman of the Ethics Committee and Vice-Chairman of the Bar for 2017, Andrew Walker QC, to talk about his work and the importance of ethics generally. With great emphasis, 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.’
So what has he learnt about the practicalities of professional ethics from his experience as committee chair, as distinct from a jobbing Chancery and commercial practitioner? One of the key points Walker highlights here is that different areas of practice tend to raise different ethical issues. Complications in crime and family work, due to the nature of the client base and the sort of problems that clients experience, might not arise at all in the context of a more commercially based practice.
A priority for the committee over the last few years has been to improve the services on the ethics line, and to publicise it more widely among practitioners, Walker explains. One of the reassuring aspects of his time on the committee is seeing members of the Bar identifying the ethical angles and genuinely striving to arrive at the right solution. Colleagues are often a first port of call, but when they are unsure or colleagues are not on hand, they call the ethics enquiry line.
So, it seems there is generally a high level of awareness of the line’s existence. Walker tells me that during the first half of 2016, 500 calls and 60 emails were received per month. The most frequent category of enquiry concerned returning instructions (covering a wide variety of situations), followed by questions relating to direct access, and then practising requirements.
It’s true to say that to many in the profession, the revised Code and Handbook, however useful, can appear intimidating. Practitioners, junior and senior alike, can be filled with dread navigating their way through it. But Walker points out that although the old Code of Conduct might have appeared to be shorter, there were lengthy annexes to wade through, and the structure of the new Code does improve in some respects on the old.
Explaining the Code’s current layout, he says: ‘It’s a document which tries to identify the core duties, and then to show in rules and guidance what those mean in practice. Some suggest that we should go no further than set out core duties and so have a one-page Code of Conduct. But then everyone would constantly be asking themselves (or the Bar Council) “well what does that mean?” in a particular situation, which would not be helpful to anyone.
‘So, it’s a question of finding the right balance between core principles, and the detailed rules and guidance.’
One way in which the Bar Council both helps barristers to act ethically and helps the Bar Standards Board (BSB) to do its job, he suggests, is through providing a ‘more practical take on things’ in a way that does not ‘weigh down the handbook in a dictatorial way’.
Amongst the most important tasks of the committee is to ensure that the Bar Council guidance is constantly revised, so that practitioners are given the most up-to-date guidance possible. The work of updating the guidance falls to the individual committee members who give generously of their time for this valued work.
Considering whether self-reporting is effective in practice, I put forward the following scenario: a trial is under way in the Crown court, tempers flare, and heated words are exchanged between opposing counsel. Since 2014, barristers have owed a duty to report themselves and each other to the BSB, but neither reports this incident. What is his response to those who might see this as endemic of a profession brought up to close ranks?
Walker replies: ‘There is a duty to report only where there are reasonable grounds to believe that there has been serious misconduct. Any misconduct can be reported, but in framing the duty, the BSB has focused on what the public interest truly requires. Both barristers should have reached a sensible judgment about this in all the circumstances, taking into account any intervention from the judge. It is far from clear that serious misconduct was involved, or that further action was called for, but I would need to know more.’
I ask him how seriously he thinks barristers are taking their duty to report? ‘Barristers,’ he observes, ‘have not in my time been brought up to close ranks on serious misconduct, nor have I seen that happen. Consistently with this, our experience indicates that barristers are taking their duty to report very seriously.
‘Had the exchange in your scenario been prompted by the discovery, for example, that one of them had deliberately misled the court on an important issue at an earlier stage, then I would fully expect that to have been reported. This has never been acceptable behaviour, and is likely to be reportable despite any belated correction.’
What priority is being given to ethics by the profession and, in particular, by the ICCA? Walker sees the work of the Inns, the Bar Council and the Circuits in promoting high ethical standards as very important, but also as complementary to what goes on peer-to-peer on a daily basis – in chambers or in robing rooms.
The Inns, he says, have an important role to play, particularly at the junior end in enabling new practitioners to have their basic ethical radar fine-tuned by hearing from experienced practitioners discussing the issues.
While the committee holds seminars and publicises issues and guidance, the Inns have a critical connection with junior practitioners through the New Practitioners Programme, which makes them well placed to do more active work at that stage in barristers’ careers.
‘I would hope that, as in so many other spheres, there could be more interchange between the Bar Council and the Inns.’
‘On difficult issues and current problems,’ he says, ‘the Committee tries to reach a common position on the right ethical response, and it would be useful to have input from those involved with ethics training in the Inns.’
Walker adds: ‘From the opposite perspective, members of the committee are likely to know more about the handbook (not least because they spend an awful lot of time looking at it and thinking through the dilemmas that arise), and this is perhaps an area in which the committee could provide useful input into the work of the Inns.’
Last year, the committee received more expressions of interest in joining than it was able to accommodate, but it remains keen to receive expressions of interest from a wide range of practitioners, including groups who are underrepresented in the profession or on the Bar Council.
Finally, I ask Walker to tell me something about himself that no one at the Bar would know. He replies: ‘Do many barristers know how to lay a traditional hedge? I claim no particular skill, but I have a couple of hedges at home which seem to have survived the process.’ The ancient art of nurturing and managing boundaries seems somehow fitting; I feel sure those hedges will be anchored in place and flourishing in years to come.#
Contributor Desiree Artesi, Thomas More Chambers and a member of the Counsel Editorial Board
SOURCES OF HELP
Is the Bar still a stand-out example of adherence to high ethical standards? Desiree Artesi discusses the practicalities of professional ethics with Andrew Walker QC
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