Walker: No one should turn a blind eye
The chairman of the Bar Council has sent a strong message to solicitors about the need to challenge clients who discriminate against barristers because of their gender, race or any other protected characteristic.
The comments of Andrew Walker QC came in response to our story yesterday [1] about Rehana Popal, an Asian female barrister whose instructing solicitor asked her to return the papers because the client wanted a white, male barrister.
Ms Popal has told Legal Futures that one of the reasons was that the client believed a judge was more likely to listen to such a barrister.
Andrew Walker QC said: “Discrimination against a barrister on the basis of a protected characteristic is completely unacceptable.
“The Bar Council is fully committed to supporting members of the Bar in tackling discrimination in all circumstances. As part of this, we take the issue of fair access to work extremely seriously, and provide clear guidance for barristers and their clerks on dealing with discriminatory instructions [2].
“Instructions which seek to discriminate against barristers, whether on the grounds of gender, race, age or any other protected characteristic, must be refused…
“Wherever discrimination does arise, it must be challenged by all branches of the legal profession. The close working relationship between barristers, their clerks and solicitors means that no one should turn a blind eye.”
Mr Walker said it had long been a “clear professional and legal obligation” that if a solicitor was unable to persuade a lay client not to act in this way, then that solicitor must cease to act.
“I am confident of the commitment of our solicitor colleagues as a profession to playing their part in fighting discrimination in all its forms. Many champion diversity and fair briefing practices at the Bar, and we are grateful to them.
“Nevertheless, I have raised this issue personally with the Law Society, and will be looking for a firm reminder to their members of their ethical duties and responsibilities.
“We would urge any of our members or clerks who do encounter discrimination of this sort to remind the solicitors concerned of their professional obligations, and to report any non-compliance to the Solicitors Regulation Authority.”
A spokesman for the authority said: “We take all allegations of potential discrimination seriously. If we receive evidence that a solicitor or firm might have failed to meet high standards we expect of them, we will investigate and take appropriate action.”
Law Society president Christina Blacklaws added: “We cannot comment on an individual case. What we can be clear about is that solicitors should always uphold the highest standards of conduct and ethics.
“Solicitors must not discriminate unlawfully against anyone on the grounds of any protected characteristic and should refuse their client’s instruction if it involves the solicitor in a breach of the law or the code of conduct.
“Where a solicitor realises they have breached the code, they have a duty to report themselves to the regulator.”
Speaking to Legal Futures, Ms Popal said she had received a huge amount of support from barristers and solicitors alike in the wake of the story, and said that her chambers – 10 King’s Bench Walk – had been “absolutely fantastic” and had a “zero tolerance” approach to discrimination.
She said her senior clerk had contacted the solicitor involved to say that “those kind of instructions are not welcome in our chambers”.
Ms Popal said that part of client’s reasons for wanting to instruct a white male barrister was his perception that a judge would be more likely to listen to him.
“What’s gone wrong with the system that he thinks this?” she asked. “It makes the case for diversity in judiciary more significant.”
She said she had previously experience of solicitors telling her that they would have instructed her but for the client wanting a man, while in a conference this summer, a client told her that “Asian lawyers are shit, especially the women ones”.
He was the type of client who blamed his lawyers for his problems, Ms Popal explained, and became angry when she said she would no longer act for him.
“I don’t let it bug me,” she said. “I just move on. It’s the only thing I can do.”
“People just need to be made aware that these things are happening in 2018. Although we’ve made wonderful progress, we’re not over this – we’ve still got so much further to go. Sometimes we’re so pleased with progress that we don’t realise how bad things can still be.”
Ms Popal said she had decided to become a barrister specialising in human rights and immigration at the age of 10 when she saw one on television.
A child refugee from Afghanistan, she learned English and overcame various barriers, including dyslexia, to be called in 2013.
A significant scholarship from Inner Temple helped her achieve this but she still had to hold down two jobs throughout her studies.
- The Bar Council has a confidential equality & diversity helpline [3] that barristers can call so that it can provide immediate support and guidance and monitor incidents such as these. It also provides regular training [4] to barristers and clerks on appropriate ways to deal with discriminatory instructions.