O’Connor: Market opportunity for barristers
A senior QC has called for the “fundamentally contradictory” rules on what barristers can say in public about their cases to be re-examined.
Patrick O’Connor QC, who represented the Birmingham Six and Guildford Four on their miscarriage of justice appeals, said there was “hardly ever” a need for counsel to make public statements of opinion.
Mr O’Connor suggested there could be a “market opportunity” for barristers who wanted to speak out to conduct public relations work through separate entities linked to their chambers.
“The boundaries of counsel’s ‘legal services’ would be clear and their personal opinions would not enter the picture. Clients requesting this service can be referred to media-trained specialists.”
Mr O’Connor’s comments, published by the Bar Council’s Counsel magazine, follow a warning last month by its vice-chair, Nick Vineall QC, that barristers who win cases for causes they back should avoid making “supportive” comments or risk undermining their independence.
Mr O’Connor, who practised for over 50 years in criminal and civil law before becoming an associate at Doughty Street Chambers, said that, before April 2013, barristers were not allowed publicly to express a personal opinion about any of their anticipated, current or past cases.
He said the ‘freedom” given to them to comment when the Bar Standards Board (BSB) changed the rules was “unwanted by the Bar” and opposed by both the Bar Council and Criminal Bar Association.
Mr O’Connor went on: “It is understandably the wish of most clients that counsel’s public statements should affect ‘public opinion’ and case outcome. What other purpose could there be? However, for the barrister, this is contrary to Bar Council advice.”
He suggested that “even a single public statement” could create the impression that ‘managing the media’ was part of the service counsel offered.
“This is a slippery slope. Some years ago, one counsel’s family was credibly threatened, after his refusal publicly to declare his client’s innocence.”
Mr O’Connor warned that after one “supportive statement”, the press could notice its absence for a different client.
“There could be public speculation as to the reasons. Before counsel is chosen, if this practice spreads, an unseemly auction of willingness to make public statements could take place: a ‘race to the bottom’.
“Counsel often have many ongoing clients in the same area of practice. Even if a statement of opinion on one issue concurs with the interests of the immediate client, it may directly conflict with the ongoing interests of a different client. How is counsel to balance these conflicting interests?”
Mr O’Connor predicted that making public comments on cases could be “divisive for many chambers”, embarrassing colleagues who refused and alienating the solicitor and lay client base of colleagues.
“A negative collective policy provides a simple and inoffensive basis for refusal and protection for all. However, chambers are not generally adopting such policies.”
He said a barrister’s ‘freedom of expression’ was not “any kind of trump card” when commenting on their own cases.
“After accepting instructions, certain restrictions upon our conduct inevitably arise. It is then the client’s ‘freedom of expression’ that matters.”
Mr O’Connor said few barristers commented on their cases, but when they had it had tended to cause “controversy and complaint”.
He said there could “hardly ever be a need” for counsel to make public statements of opinion.
“The present regime, which is permissive of them, but at the same time prohibits their inevitable purposes and effects, is fundamentally contradictory.
“It is understandable that some clients would prefer to deploy the status of a barrister’s personal opinion: but that is to exploit that status, the better to influence public opinion and the case outcome.
“This is a prohibited purpose for the barrister. Perhaps this ‘liberalisation’ should be re-examined in principle.”
Different considerations may apply to different areas of practice. In professional disciplinary work, commentary AFTER the case may be required to assist the client in trying to rehabilitate him or herself against a sea of adverse internet publicity. A barrister on direct access assisting a professional client in this way in moderate and sensible language after the event, rather than before it, cannot possibly be objectionable.