Jury: should you instruct a barrister you don't want to look better in court?

Q. I am acting for a client who has been charged with rape. I was proposing to instruct our usual barrister, a man with a great deal of experience. However, the client is insisting that we instruct a woman since he thinks that will play better with the jury. Am I obliged to accept this instruction?

A. As a general rule, you must comply with your client’s instructions unless to do so would involve you in a breach of the law or a breach of the rules of professional conduct (see rule 2.01 of the Solicitors’ Code of Conduct 2007).

If you refer to rule 6.01 of the code, you will see that you must not, in your professional dealings with others (which includes other lawyers), discriminate against them on various grounds, which includes discrimination on the grounds of their sex. You should explain to your client why you cannot comply with this instruction, but if he refuses to change it, you will have to cease acting.  See rule 6, guidance notes 15 & 16.


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