The only way is ethics

With integrity at the heart of the Bar, dilemmas often arise. Rachel Langdale QC calls to mind the guiding hand of the Ethics Committee, assisting barristers in the heat (or calm) of a crisis. Ellie Cumbo offers an insight into a year at the other end of the helpline

Rachel Langdale QC, Chair of the Bar Council’s Ethics Committee

We are one Bar irrespective of areas of practice, and the Bar Standards Board Handbook applies to us all. As Sir Andrew Burns, Chair of the BSB, sets out in his foreword to the Handbook: ‘… the trust and confidence which the public places in barristers, and the reputation of the Bar as a whole, depends on the behaviour of all barristers to continue to merit the trust reposed in them.’

Whatever our area of practice, integrity, honesty and independence is at the heart of all that we do. During my 27 years at the Bar, I have seen a number of changes to the legal landscape. Throughout these changes, the importance of our ethical obligations has remained steadfast. Ethical problems arise as we go about our daily work, and sometimes difficult decisions have to be made. Bar Council and Specialist Bar Association training events provide forums for healthy discussion surrounding ethics. It is rewarding to experience first-hand how interactive such seminars are, and confirms my view that barristers seek conscientiously to fulfil the trust reposed in them.

For those chambers who don’t already do so, encouraging in-house ethics training and discussion can only be a good thing. A helpline service is also provided by members of the Bar Council’s Policy Team, who are all well-versed in the Handbook in addition to their work on specific issues at the Bar (though not all are legally qualified themselves). In the vast majority of cases, once they have discussed the issues with Policy Team staff, barristers are able to decide what to do next. The value of this service to members of the Bar – who are frequently anxious and at court when making the call – is one of the reasons I encourage people to pay the Bar Representation Fee on an annual basis. The service is of particular support to less experienced barristers, but it is not exclusively for them. In any event, for the reasons set out by Sir Andrew above, it is in the Bar’s interest as a whole that such assistance is available and high standards are maintained.

Occasionally, and where a problem is particularly intractable, it is elevated to practitioners who sit on the Bar Council Ethics Committee, who make themselves available to speak with the barrister concerned. It is a privilege to chair a committee on which all members and Vice-Chairs (James Hines QC and Fenner Moeran QC) give generously of their time and experience. We are 25 in total (13 Silks; 12 juniors) and it is not a committee for the faint-hearted.

We produce and update guidance on an annual basis, and provide or assist with training events. In the future this column will enable committee members who have led on the development of a particular piece of guidance to flag it up to you. In the end, as barristers you must make your own decisions in a case, and you should be able to justify them in accordance with the standards and rules of our profession. However, reading guidance before you have a problem, which has been written by practitioners with the issues in mind, can only help.

New releases

For now, guidance on the following has been recently published:

  • Advertising and website profiles–what you can and cannot say, including email and social media (led by Tim Petts).
  • Mini pupils–all heads of chambers and pupillage should be aware of the updated guidance for dissemination surrounding mini pupils (led by Stephen Kenny QC). 

Watch out for guidance coming soon on:

  • court-appointed legal representatives;
  • dealing with witnesses; and
  • money laundering.

See also the full A-Z of practice and ethics.

Ellie Cumbo, Bar Council’s Head of Policy on Legal Affairs, Practice and Ethics

On 1 June 2017, I will have been in post as the Bar Council’s Head of Policy on Legal Affairs, Practice and Ethics for one year. In that time, I’ve been responsible for a number of fairly sizeable projects and subject areas, from staying on top of constantly evolving HMCTS plans for court reform to coordinating the roll-out of advocacy and the vulnerable training to thousands of practitioners at the criminal Bar. But overseeing the Bar Council’s Ethical Enquiries Service is easily the part of the job that’s stretched me the most.

Firstly, there is the practical side of running such a high-profile service: we receive around 6,000 calls a year, and between 60 to 100 emails every month. In its early stages, the service was provided by just one staff member, rising to three or four a decade ago. Today, 11 members of the Bar Council’s Policy Team double up as ethical advisers, and the 25 members of the Bar Council’s Ethics Committee also advise on, or respond directly to, the most complex, serious or unusual queries. Even so, it can be difficult to cope with the level of demand at busy times, given that the rest of our work doesn’t stop or deadlines melt away.

What’s more, there is sometimes no straightforward answer or single course of action to suggest. Rule C20 of the Handbook is clear that barristers are responsible for their own conduct, and we don’t aim to usurp its judgment. Instead, we set out the obligations and guidance that exist, and suggest how these should or could be interpreted in practice. This involves frequent discussions with fellow advisers and with Ethics Committee members, which should not be rushed unless a query is urgent (usually because the barrister is calling from court).

And, of course, as with any service in which people are invited to ring a number and be put through to a stranger, we do encounter other kinds of challenge. Most of us have taken at least one call from someone in real distress, perhaps fearing they have inadvertently breached a rule, in which case we must direct them to the most useful information without overstepping our role by giving guarantees about what the BSB may or may not do. And we do very occasionally deal with difficult callers – usually those who know in advance what they want to hear and are aggrieved when they don’t, or who want to speak to a leading Silk and nobody else. We are fortunate in that these are rare, and the vast majority of the people we talk to go out of their way to tell us how much they value the service.

Beyond the sense of having helped someone who needed it, and the intellectual test that each query sets, the great benefit of advising on the Ethical Enquiries Service is the unique insight it offers into the Bar, the wider legal services landscape and the modern justice system.As a team of researchers dedicated to supporting and promoting the work of barristers, this is knowledge we value, and which significantly enhances all our work. Confidential and specific though each query is, they nevertheless add up to a picture of a profession that takes ethical practice seriously, adapts to change quickly, and aims to serve the interests of individual clients and wider society alike.

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Rachel Langdale QC

Rachel, 7BR, undertakes children law cases (public, private and international), judicial review and public inquiries. Rachel is Chair of the Bar Council’s Ethics Committee.

Ellie Cumbo

Ellie is Head of Policy on Legal Affairs, Practice and Ethics at the Bar Council. She previously worked in research, campaigning and lobbying in charities including Victim Support and the End Violence Against Women Coalition.