Barristers can be very good at responding to consultation papers on matters such as the retention of wigs. Replying to one on the proposed new Conduct Rules for the Bar may sound less compelling, but this is a consultation which is of real importance to all of us as it concerns the rules which govern the work we do every day. For those who might begin to complain of “consultation overload”, may I reassure them by pointing out the excellent track record of the Bar Standards Board (BSB) in listening to the responses we get. The debate over deferral of call in 2007 and the recent paper on rules for acceptance of instructions are both examples of where we consulted, took note, and eventually modified our views on the best way forward.
There are four reasons why the BSB has decided to re-draft the Conduct Rules. First, the rules have remained in their current form since 1981 and have only been amended piecemeal. Second, it is important that the BSB has “ownership” of the Code, which sets out the rules it is required under the Legal Services Act 2007 to enforce. Third, since the introduction of legal disciplinary practices (LDPs) will involve changes to the rules in any event, it is a sensible time to revise them as a whole. Fourth, there has been criticism of the current Code on the basis that it is often difficult for clients to understand and that it pays insufficient regard to the service that a (lay) client is entitled to expect from the barrister.
The redrafting of the Code is such a large task that it has been divided into stages. One consultation has been completed, on the changes which relate to alternative business structures and the proposed roles of a barrister as a manager of an LDP or as part of a barrister-only partnership (BOP). Another sub-group has started work on the Practising Rules, due for consultation later in the year.
The work on the Conduct Rules has been under the Chairmanship of Sir Donald Irvine, the distinguished former President of the General Medical Council, who was responsible for bringing the rules for the medical profession into the modern era. As always is the case for BSB committees, the subgroup consisted of a mix of barrister and lay members. The drafting principally was carried out by myself and by Nick Lavender QC, who is also chairman of the Bar Council’s Professional Practice Committee.
Misconduct and competence
The consultation paper includes the arguments in respect of some issues which we decided not to adopt in the draft Conduct Rules. These relate to a duty on barristers to report misconduct or poor practice in others. Another issue was whether there should be greater emphasis on barristers working within their professional competence, perhaps elevating this to a core duty. It is worth noting that the Board’s Consumer Panel (which is made up of organisations which use barristers’ services regularly) have suggested that in these cases there may be good reasons for inclusion.
The Conduct Rules would have a core duties, rules and guidance approach, in line with what the FSA and SRA have adopted. The core duties approach was raised in an earlier consultation paper and was broadly endorsed by respondents (see box). There is more explanation of the hierarchy of rules, and the relationship between the duty of confidentiality, the duty to the client and the duty to the court. As one would expect for a profession principally concerned with advocacy, the duty to the court and rules on conduct in court are given considerable emphasis. Some of the issues on which we would particularly welcome views are set out below.
The existing obligation under para 301(a) is not to engage in conduct which is discreditable to a barrister or likely to bring the legal profession into disrepute. Many of the subgroup thought that such a provision was too uncertain to be satisfactory. An ancillary question which arose was how far the Code should regulate a barrister’s non-criminal conduct outside his professional dealings. Should it be misconduct, for example, to conduct sado-masochistic activities in private? The proposed solution retains a rule which prohibits certain forms of conduct, frames it in a way which identifies the underlying general principle, but reduces uncertainty by providing guidance as to conduct which will or will not normally be regarded as contrary to the rule.
Advertising by barristers was a major issue 20 years ago. But lengthy rules seem less necessary nowadays and the subgroup thought a ban on misleading and inaccurate advertising would suffice.
Many see the ban (other than in an educational or academic context) on media comment by counsel instructed in the case as an adjunct to the cab rank rule. It seeks to protect the barrister’s independence and to protect him from being too closely associated with the client. It has been retained. But not all agree, and this is an opportunity to reconsider the rule.
The Bar has rightly made enormous efforts in recent years to broaden its base of entrants. The proposal in the draft rules is to impose a positive duty on barristers to take reasonable steps to prevent discrimination by others in the barrister’s professional dealings. This is controversial, because it goes beyond legal obligations and previous Code obligations. Of course, what was reasonable in any case would depend on all the circumstances. The steps that are reasonable for a head of chambers may be different from the steps that are reasonable for, say, a junior employed barrister who has little or no involvement in their employer’s policy.
Not all barristers are self-employed in private practice in chambers. The corresponding differences of issues will be dealt with in the Practising Rules. But in the Conduct Rules the approach has been taken to apply them to all practising barristers (of whatever sort) save where to do so would be clearly inappropriate. Employed barristers may have a view on this.
How to contribute
The consultation paper has been published widely and can also be accessed on the BSB’s website at www.barstandardsboard.org.uk. Responses should be sent to Oliver Hanmer (firstname.lastname@example.org) by 5 June 2009.
Charles Hollander QC is Chair of the Standards Committee and a member of the Bar Standards Board