Employment can offer barristers more ethical protection

Smith: Challenged by judge over independence

Being employed by companies or law firms can give barristers more protection when faced with ethical challenges than those in private practice, it has been suggested.

This was despite the perception that those in employment are in a more ethically perilous situation, a session on ethics heard during the Bar conference earlier this month.

Hannah Smith, a principal lawyer at the General Pharmaceutical Council, recounted how – in a previous role working in-house at a solicitors’ firm handling criminal defence work – she would be questioned about her independence “quite a lot”.

“I was challenged by a judge saying, ‘The solicitors’ firm who are at fault here pay your wages, so how can I expect you to come into my court and give me the honest truth about their mess-ups?’”

Her response was to point out that, as an employee, she had protections in law. If her employer tried to fire her for doing her job properly and telling the truth in court, she would be able to bring an employment tribunal claim.

“If I’m a self-employed barrister and I have one firm of solicitors who instructs me on a self-employed, more independent basis and I want to go to court and say, ‘They really dropped the ball here and you should potentially order wasted costs’ but don’t do that, that’s actually somebody who’s being less independent than me…

“Sometimes being employed afford is greater protection than to be independent.”

David Bunting, head of legal for sales and trade at Deutsche Bank, added that employment meant there could be “guardrails and structural protections”, like ensuring the lawyer has a reporting line to a senior executive such as the CEO or chief risk officer.

“You can make sure that the lawyer doesn’t get overly motivated by pay incentives or share options to look at short-term interests. You can make sure they have more senior lawyers around to be a ‘phone a friend’ if they need.”

Session chair Fenner Moeran KC, co-chair of the Bar Council’s ethics committee, acknowledged those in small in-house teams may not have a senior lawyer to consult and said the Bar Council’s ethics hotline heard from employed barristers who wanted to check their obligations so they could “basically tell [their employer] ‘I’m going to do the right thing’”.

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