As summer drew to a close, and new pupils loomed on the autumnal horizon, lawyers of a certain age began tweeting about the rules that barristers are supposed to adhere to, and how they have changed. I was about to begin my first season as a pupil supervisor, and to still my own nerves about whether I was up for the task, I wrote a blog post gathering all those rules together – the quirky, the defunct and the downright bonkers – for the benefit of pupils and new tenants. This is a version of that blog post.
Perplexingly, what emerged most clearly from our Twitter brainstorming was that nobody really knows what the rules are. The tweets in the threads were surprisingly vague and contradictory – whilst there is broad commonality in terms of what people *think* the rules cover, the details are full of inconsistencies both in terms of what the rules actually require or prohibit, and in terms of how closely they are followed and enforced. Indeed, many mentioned rules that they (or others) no longer follow (or never followed at all).
It seems that whilst some were explicitly told ‘Never do x’ or ‘Always do y’ when a pupil, for many of us a ‘rule’ was picked up by osmosis without a proper understanding of its purpose or background. An observed behaviour is interpreted and aped differently, is in turn observed and copied, and morphs over time and across circuit boundaries. I suppose this is a product of the somewhat unstructured nature of pupillage; at least in times past.
Many of the rules that came up during the discussion seem redundant or pointlessly archaic – though many do no harm – BUT (big but) just a few of them are actually more important than they may seem at first glance. The trick is to work out which ones matter.
So my first suggestion to those starting out is to follow those idiosyncratic mannerisms of the Bar that are supposed to mark us out as professionals as best you can. Later on you can make a judgment call about which ones really matter. And take the opportunity to ask about why they exist whilst you are still green enough for it not to be embarrassing to do so. (I can’t speak for other pupil supervisors but stupid questions are okay by me.) You can gradually shed them – or not – according to your preferences. Worry by all means about professional conduct and ethics rules. But focus on the substance not the form, and do what you do with courtesy.
Below is my attempt to summarise the wisdom of the legal Twitter hive mind.
DRESS YOURSELF PROPERLY
Brown shoes say ‘solicitor’ so are a big no no. (Note to solicitors – don’t shoot the messenger, you are lovely.) Ditto brown suits. (I wore one once when very junior, with pink polka dots. An error, both professional and sartorial.)
Coloured shirts are out and it is white shirts only – either whilst a pupil, for the first five years or ever, depending on who you ask. (I am no help on this – ironing has been banned in our house for a decade. I only ever wore white t-shirts beneath my jacket, and latterly I’ve discovered the joys of black dresses and black jackets.)
Lots of women barristers have been told all sorts of things about how they should dress and present their hair (ie tied back). Comments were not just about the trouser/skirt debate, but also about the appropriateness of jewellery, lipstick, nail polish, flesh coloured tights. Personally, I think we can boil this all down to a single common-sense rule for both men and women: dress like you have a serious job and not like you are going out clubbing (no pink polka dots). Pockets are essential. (Male readers, say nothing – pockets are a feminist issue.)
Talk about the ‘solicitor’s triangle’ apparently relates to a time when you could tell the difference between a solicitor and a barrister by whether or not they were wearing a three-piece/double-breasted suit or not – and is apparently not depilatory guidance.
DRESS THE COURT
Everyone agrees that you should definitely do this, but oddly there is no consensus on what it actually means. It might be the name for the rule that you should always make sure that at least one advocate is standing to receive the judge’s comments. Or it might be one of the rules about what happens at the end of the hearing: exit with a bow and backwards so you don’t turn your back on the judge; don’t leave one advocate or party in court alone with the judge; don’t leave the judge in court alone or leave before the judge has done so (unless released).
Whatever the correct name for this little bundle of behaviours, these are important in my book. I always do them and you should too. They protect judges and advocates from accusations of nobbling, they ensure a respectful, orderly court process and they promote good communication.
DRESS and UNDRESS IN THE RIGHT PLACES
There are times and places for bands and robes. You generally shouldn’t wear them out and about, and there is much confusion about who can run across the Strand to Pret with their tabs a-flying. It might be nobody, it might be only people running back to Lincoln’s Inn, it might be okay on the third day after a spring tide. (Who knows? Not I: we family lawyers only wear them to fancy dress parties – which apparently isn’t allowed because its touting.)
Rules about what buttons to do up and when, seem fortunately to be dead ducks. (I fondly remember a sign on a robing room door which warned that His Honour Judge _____ would not be able to ‘hear’ any advocate whose jacket button was undone.)
Also, apparently, never take your jacket off – except when you are in the shower or in the second stage of labour... Less strict interpretations of this rule according to the hive mind were: never in front of a solicitor/lay client (including in the pub); never in the court building. The main thing is definitely never take your jacket off in court unless specifically invited to by the judge. This only happens if the air conditioning is broken and at least three people have already fainted. (Special dispensation for the peri-menopausal ones.)
SIT IN THE RIGHT PLACE
Don’t worry, it turns out nobody knows where they should sit either. It seems that everyone has a different rule – as a long-time mediocre bell ringer I have always found the ‘wait and see where everyone else goes and fill the gap’ approach very effective. But if you want a clear-cut rule you can pick from any of the following: applicant on the left (or right); applicant on the judge’s left (or right); applicant nearest the witness box... or door... or window... or it depends on the court. If it helps, one judge tweeted that he doesn’t know either. Oh, also you should ask permission if you want your client to sit beside you (oops).
STAND AT THE RIGHT TIME
As for standing or sitting, there seems to be some confusion over when advocates should stand when addressing the judge and when they may sit. When I originally wrote the post, I said I thought it was pretty straightforward, but have since been thrown into discombobulation when an out-of-town opponent insisted on standing where I would have sat. So, beware of local practice… As long as you stand when the judge comes in and when the judge stands up, you’ll be fine. (Unless you are the one responsible for opening, because then you can’t cheat and check what your opponent does before it’s your turn.) If in doubt, do it standing up.
DON’T TOUCH OTHER PEOPLE
We are taught that barristers don’t shake hands (sword-related reasons). But actually it seems quite a few of us do, just because we’ve been told not to. Personally, my rule is if someone offers to shake your hand, its polite to shake it back – anyone who says ‘oh I’m a barrister, we don’t shake hands’ sounds like an utter plonker.
DON’T LET ANYONE SEE YOUR BAG
Everyone agrees the rule used to be that counsel shouldn’t bring their bags into court. But also everyone agrees that GDPR has done that one in – people are rightly cautious about leaving bags unattended even in the advocates’ room these days (if there is one). And you can’t leave a suitcase unattended in a conference room for fear of sparking a security alert. So, bags in court are now pretty routine, even if some still go all twitchy about it. However, it’s definitely bad form to put your bag on the desk or even the chair (mea culpa with the chair) and not a good look to drape your coat across the chairs in court. Someone on the thread said that there used to be a no briefcase rule, and I certainly remember when trolley suitcases were positively outre. Now all those who swung a hugely heavy bag over their shoulder for years are too busy at the chiropractor to care, and we all pull suitcases (or backpacks if we’re paperless) instead.
USE THE LECTERN AT YOUR PERIL
The rule is (apparently) that juniors must never use the lecterns, which are reserved for silks. There were very mixed responses on this one – indeed it has been the subject of more than one heated twitter debate. Suffice to say there are enough very important silks who care about this to make it a dangerous pursuit in some courts! It seems to depend very much on local practice and may depend on whether or not there is a self-important silk in your case or not. There are definitely juniors who use them, though, and one line of thinking is that lecterns or stands of some sort are more commonplace now that many of us work from laptops. (In my decrepitude I can’t see the screen on the desk from my fullest towering height of 5’2”, so I have my own laptop stand.) So this rule may be breaking down – but it isn’t quite dead yet.
A FINAL PEARL OF WISDOM
There are loads more ‘rules’ that came up, most of which are daft and defunct (eg no conferences in solicitors’ offices). But the best one of all was neither daft nor defunct, and came from Francis Fitzgibbon QC:
‘Always be polite to everyone you are in contact with, however exasperated you feel. Be kind.’
Follow that one and you’ll be right. It’s not always easy in these stressful times, but it is so very, very important.