Annual Bar Conference 2016: Ethical advocacy in the modern adversarial system

The session began with a description of the new ethics and advocacy regime. 

The Inns of Court College of Advocacy, launched in June of this year, builds on the success of the Advocacy Training Council and will provide leadership, expertise and guidance in both advocacy and professional ethics.

Lord Neuberger in the Slynn Lecture given in June 2016 highlighted the need for practitioners to be in a position to deal with the extreme tensions that arise when we are confronted with difficult ethical questions. There was a strong call for further and more intensive training in handling ethical problems, and this is what the new college is about.

The college is taking up the challenge laid down by Lord Neuberger. We heard about research on the ethical knowledge and skills acquired by new advocates conducted by Professor Moorhead of UCL Faculty of Laws. It shows a picture which is not terribly encouraging, but the Inns of Court are developing education and training materials under Paul Stanley QC to fill the gap demonstrated by the research. However, Prof Moorhead was keen to point out that although the sample size was decent for quantitative purposes (256 barristers responded to the survey), a much larger cohort of interviewees would have created greater confidence in its findings.

The advocates who took part in the research were divided into four groups – those practising crime, civil disputes, family law and in-house employed lawyers. What the research showed was that while many of the lawyers had a grasp of the relevant ethical principles at the highest level of generality some ‘struggled to understand and appreciate the core professional values’, and only about one-half could ‘mostly or always correctly identify the issues of professional ethics contained in our problems (even though they were specifically on the look-out for such problems…)’.

In general terms, the research identified a range of responses to ethical problems varying from adopting strategies to manage the relationship between the clerks, instructing solicitors and clients, and adopting a tactical approach to the problem.

There is clearly an identifiable gap in training and room for improvement. Derek Wood CBE QC, Chair of the Governors of the Inns of Court College of Advocacy, was keen to seek input and views of the audience as to suggested ways in which the College can best deliver this much needed training to the profession.

The delegates at this workshop were extremely engaged with the practical case studies presented by the panellists. Two lessons can be drawn from this. The first is that practitioners by and large welcome further training and guidance in understanding how the code of ethics applies to practical problems they encounter on a daily basis. The second is that it became apparent that the most difficult ethical issues for practitioners are those dilemmas falling within what are often referred to as ‘grey areas’. These generally arise where there are tensions between a barrister’s duty to the court and administration of justice (CD1); and the duty to the client (CD2).

All in all, the session provided an avenue for lively and helpful discussion, and many practitioners were heard to say how useful the case studies had been.

Contributor Desiree Artesi

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Desiree Artesi

Desiree is a member of Thomas More Chambers and a Bencher of Inner Temple. Called to the Bar in St Lucia in 2004, she has been a member of the BSB Conduct Committee and the Bar Council’s Professional Practice Committee. She is now a member of Counsel’s Editorial Board.