Honesty – a Barrister’s Primary Code of Conduct
Published: 09/10/2023 21:14
Now in my fiftieth year of practice as a barrister, I consider myself fortunate to have joined the profession when I did. The Bar still at that time had within its ranks many who had served in the military, often with distinction, or who had subsequently experienced military training in National Service. Some of these were real men of valour and had medals to prove it and the Bar is the poorer for their passing in the 1980s and 1990s. Male barristers back in the mid-1970s still wore the distinctive black jacket and striped trousers and professional standards and etiquette were as important as practice in the law itself. The emphasis on integrity and absolute honesty in practice and in dealing with one’s colleagues was paramount.
Of course, there were some down sides. The Bar in the mid-1970s was experiencing its first entrants, such as myself, from the red brick universities and there was a prevalent and reactionary view held then that this broader church of recruit could not match the standards of the exclusively and already established Oxbridge older guard. Barristers who chose to leave one set to join another were ostracised as ‘traitors to the cause’. Touting solicitors’ work was seen as heinous – albeit, in a profession and where sets of Chambers and judiciary were riven by family contacts, the identical effect was achieved in less obvious ways. Regular Bar Mess attendance was expected, although for some of the newer entrants not familiar with a public school experience, such as myself, the excesses of behaviour not infrequently witnessed were found amusing only to individuals of a certain background.
Despite this, a good pupillage emphasised all the aspects of integrity and more, as mentioned above and in reality once, as young counsel, let loose on the public to practise one’s trade, the concern was not whether you knew the law, but rather if you had learnt how to properly address the court and how you generally conducted yourself on your feet.
This may all now appear stuffy and old-fashioned and so it may have been – however, these expectations instilled in their own way a sense of honour as a barrister and a personal responsibility not to do or say anything which might be seen as falling short of such traditionally maintained standards and codes of conduct. As a young man from the distinctly working class background from a childhood home in a northern town terraced street, the experience at the Bar was entirely novel and acutely inspirational.
Simply sitting daily at lunch around the robing room dining table in the bowels of St George’s Hall, Liverpool, which building then housed the Crown and High Courts, was to any Chambers’ pupil often a revelation and educational at the same time. What stories were told around that table, amusing or dark, were very much sealed from outside knowledge by the Chatham House rule. Many great national advocates, some of whom would later reach the highest judicial office, whilst on Circuit tour in the latest high profile murder or civil trial, could be freely listened to and their court exploits regaled over a soup and ham salad. These were heady days for impressionable young people thirsty for their own success at the Bar.
My pupil master was the late John Stannard of Oriel Chambers, Liverpool, later to be appointed the Official Referee of the City, but widely respected beyond the Northern Circuit as a very able lawyer indeed. I simply loved the man. In short, he taught me how to be a barrister period. He would discreetly correct my excesses in style and appearance and caution me from indulging in rhetoric and familiarity in court – a warning I have, as I have grown more senior, had to bring back to remembrance from time to time. He was to me a second father and I still miss him.
The purpose however of this ‘Memory Lane’ introduction is to lay a basis for the observation that, in my opinion, general professional practice today, whilst refreshingly more modern in outlook and style and less austere and more approachable vis-à-vis the paying client, is arguably prone to a looser interpretation of honesty in its practices professionally. Clearly, the Bar now openly and unashamedly courts work from its instructing solicitors and clients in more direct methods which would previously have been unthinkable. In this process, however, the temptation grows to offer more than the next colleague to gain the instruction, thereby with it encouraging a familiarity with the solicitor or the lay client, which, if it should occur, may undermine one of a barrister’s greatest strengths – his or her independent opinion.
I well recall, when doing criminal law work many years ago, being specifically instructed that I should advise on appeal favourably to enable a firm’s regular criminal client to present an appeal on sentence before the Court of Appeal. I advised negatively and that was the last case I received from that solicitor. There have been other instances in family work – such as, to mention a few, of being cajoled in conference to advance an unarguable case in law or to suggest a stance wholly unsupported by the evidence or even not to reveal the full set of relevant facts in negotiation or before the court. All are more easily contemplated where the professional to client boundary is less defined – but all must be rejected if the barrister and our system of justice is to retain a core integrity.
In financial remedy work, negotiating with opposing counsel is a daily occurrence and essential to the exercise is the premise that neither barrister will seek to mislead the other in the process. Clearly, it is not one’s duty to simply volunteer a negotiation strategy, which would be detrimental to the lay client’s case. However, in any negotiation, often this line can become quite nuanced, where it is clear that the opponent is assuming a position on the basis of a mistaken belief or misunderstanding of one’s client’s case or offer advanced to them and where a lack of additional clarification at that point could well be tantamount to advancing a misleading position. Again, too close a relationship with the client’s case or too great an anxiety to get ‘a result’ for the client or the instructing solicitor can skew the barrister’s sensitivity to this danger.
Other instances of a lack of honesty in these types of negotiation can also arise where one counsel suggests to the other that a client is becoming difficult or is ‘about to walk’ if the other party continues to press for a particular outcome which is being opposed – but when in truth, such a stage has not been reached at all in the conference room and is just being used to pressurise to secure a required outcome. Equally objectionable are suggestions in negotiations that an offer to settle when made is limited by absence of further funding when in reality other undisclosed funds are available to the offeror client.
In no circumstances, of course, may any barrister actively mislead the court or his or her opponent. This must be the position whether or not the truthful explanation will result in criticism of the barrister or their client from the court.
Certainly, in financial remedy work, once the negotiation has reached a successful outcome and a settlement reached, the same has then to be reduced into writing. Such negotiated agreements are rarely reached at the outset of the day and, not infrequently, by the very nature of the discussions undertaken, are realised when the court building itself is about to be closed. Heads of Agreement signed by the parties setting out the broad terms reached are commonplace and there then follows the drafting between counsel of the standard term order based on those Heads.
Here again arises a temptation, which the barrister must resist. Not infrequently after the event, one side or the other realises that the wording in the signed Heads of Agreement would have better included some additional wording or factor. However, it is unacceptable and misleading, without more, for the draft order then presented to the other side to include such extra wording to cover such an omission as if the Heads had by implication included the same. If this is the position, it is incumbent on the barrister advancing this extra provision to come clean with his/her opponent and request consideration for its inclusion.
The four corners of the Heads of Agreement document reflect the perimeter of the agreement terms reached – anything extra is a proposal of a different agreement and not the one already reached by the parties. It should not be advanced as being already part of the agreed package in this manner – to do so is disingenuous and falls below the standards expected of the Bar.
For every barrister – ‘the truth and nothing but the truth’ must be the final arbiter.