The only way is ethics

Minding our standards: in the first of a new column for Counsel, Andrew Walker QC outlines fresh imperatives and initiatives for barristers to enhance their knowledge of ethics in practice and stay ahead of the curve

A new year brings changes and new ideas to the Bar Council. 

2017 is no different. There is, of course, a myriad of regular activities and ongoing projects, but we are constantly trying to look to the future, and to prepare ourselves and the profession for what it holds. If we can, and if resources allow, we want to be ahead of the curve.

What is on the horizon in 2017? Looming and potential developments are legion and extend far beyond the challenges of Brexit, court reforms and the opportunity of a revised AGFS; but there is a risk that we may at the same time forget to secure, reinforce and take advantage of what we already have. Among those existing strengths are our professional ethics.

Why focus on ethics?

No-one would deny the importance of our high ethical standards. They are part of our responsibility to society as advocates and lawyers, supporting the rule of law. They are integral to what it means to be a professional lawyer, and a crucial part of what society expects of us in return for being allowed to conduct activities – particularly exercising rights of audience – that others cannot.

They are also an important differentiator – and selling point – domestically and internationally, when comparing ourselves with the world of business and commerce, and with many other jurisdictions in which the effective rule of law remains an aspiration rather than a reality.

Practising barristers can be proud of their record on ethics; but there can be no room for complacency. Even for old hands – perhaps particularly for old hands – knowledge may need to be renewed or refreshed to take account of new freedoms under the Handbook (eg speaking to the media) and changes in the realities of practice (eg discussions with witnesses at court in the absence of a professional client).

Our ethical instincts benefit from discussion, reinforcement and challenge. We can all do more to make the best of the change from what was ostensibly a rule-based Code of Conduct to a less prescriptive one, with Core Duties and Guidance as well. The new approach is unfamiliar, but enables us to identify what underpins our duties and instincts, how best to analyse ethical dilemmas, and the reasons why (and within what limits) ethical conclusions may differ.

Reasons for taking stock:

  • changes in the Code of Conduct and in practice;
  • ICCA report on the ethical capacities of new advocates;
  • new CPD regime: ‘ethics, professionalism and judgment’;
  • trends in how barristers work.

Why now?

The report prepared for the Inns of Court College of Advocacy (ICCA) on the ethical capacities of new advocates identified some shortcomings in understanding and analysis, and areas for improvement in how ethics are taught and reinforced. The focus was on advocates (not just barristers) in their first three years of practice as such, but it would be surprising if the themes it identified were restricted to this cohort.

The focus of the ICCA’s initial activity in this area will be on advocacy and the New Practitioners Programme, but it behoves those of us more senior, alongside the Bar Council, the Inns, the Circuits and the specialist Bar associations, to recognise the issues and to start to address them beyond the ICCA’s initial remit.

More widely, the Bar Standards Board’s (BSB’s) new CPD regime identifies ‘ethics, professionalism and judgment’ as an area in which it would be good practice to consider CPD. This applies to barristers at all levels of seniority, although their needs are likely to differ. When was the last time you looked closely at the current Code of Conduct, BSB Guidance, or any Bar Council documents dealing with ethics and practice? Now is an ideal time for us all to make sure we are keeping up with both the tools and the thinking.

Finally, if we do not take care, trends in the ways that we work may weaken the ‘peer review’ element of ethics: those tales and discussions in robing rooms across the land, and over tea or something stronger, of the latest antics of clients, opponents and judges, and their resulting reputations; and those chats that start, ‘What do you think about this?’

There are currently over 500 self-employed sole practitioners, and no doubt many employed barristers, working without other lawyers as immediate colleagues, whose access to such conversations is more limited. Even in chambers, structures and relationships may be becoming diluted by increasing size and more home-working. We need to recognise those trends and their potential effects, and to find new ways to ensure that we continue to mind our own ethical standards as effectively as we have done in the past.

What is the Bar Council doing?

Debating and setting ethical standards has been the job of the Bar Council from the very beginning. Its constitution requires it to ‘maintain the standards, honour and independence of the Bar’. The BSB now decides the form and content of the Code of Conduct, but it is still underpinned by the understanding, experience and ethos of practising barristers. We all have a role to play – both actively and reactively – in making sure that this continues.

The Bar Council in its representative capacity also still has a crucial part to play in keeping track of changes in practice, and in providing informal guidance, interpretation and analysis. It must also provide leadership, coordination and consistency.

All of this helps to ensure that our standards remain ours, and that in honouring them we aim for excellence and not a regulatory bare minimum.

Beyond this, we want to develop fresh initiatives and to give barristers new opportunities to enhance their knowledge of ethics and topical issues in practice.

The Bar Council already has a pool of expertise among its staff and the members of its Ethics Committee. This could be more widely known and used. I give a very warm welcome to my successor as chair, Rachel Langdale QC, whom I believe to be the first woman to lead the committee. She has already teamed up with the Family Law Bar Association and the Criminal Bar Association to hold collaborative ethics sessions aimed at practitioners at all levels looking for a refresher course, from the less experienced keen to explore how the rules apply in practice, to more senior members who are still more comfortable with the old Code of Conduct. I am sure that more such sessions will be developed.

I hope that we will also be able to offer introductory sessions both in London and on the Circuits, reminding practitioners of the approach under the new Code of Conduct, and we are looking at how we might do this, either in person or online. If your chambers or association would be interested in hosting a session, then please email: EthicsTraining@BarCouncil.org.uk.

Please look out too for communications from the Bar Council suggesting how you might use our existing materials on ethics and practice to help with your CPD, and for regular articles on ethics in this magazine.

This is just a start. It will take continued leadership and focus by us all to ensure that we maintain our ethical standards into the future. Please spread the word; and please do what you can to make sure that the example you are setting, and what you demand from colleagues, is only the best. 

Contributor Andrew Walker QC Vice Chairman of the Bar

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