Barristers: Peer pressure
The evidence of unethical behaviour by barristers is “more limited and nuanced” than that relating to other lawyers, the Bar Council has said.
Barristers faced “different challenges” to those faced by solicitors and other legal professionals and “evidence of issues with professional ethical obligations for one profession” did not “necessarily translate across to all the other professions”.
Responding to the Legal Services Board (LSB) consultation on a statutory statement of policy on ethics, the Bar Council said “the evidence of unethical behaviours by barristers is more limited and nuanced than the general evidence relating to the legal profession as a whole”.
Much of the research cited by the LSB focused more on solicitors, it pointed out, while a reference in one study to more reports to the Bar Standards Board (BSB) of barristers misleading the courts concerned one year (2021-22) that was a statistical outlier that “may have arisen from the challenges presented by the new ways of working made necessary by the Covid pandemic”.
The Bar Council’s “impression” was that “the vast majority of barristers seek to uphold the highest ethical standards”.
Barristers were “especially – indeed, relative to other legal professionals, uniquely – exposed to ethical scrutiny in their advocacy and conduct of proceedings” before courts and tribunals.
“That work is public-facing, and their conduct is exposed to immediate challenge by opponents and judges. Any taking of ethical ‘liberties’ therefore stands at very high risk of exposure and condemnation, with immensely detrimental consequences for the barrister’s reputation and standing.
“As every barrister knows, a reputation for untrustworthiness is very quickly acquired, but almost impossible to lose.
“It is therefore difficult to over-emphasise the extent to which barristers are subject to ‘peer pressure’ to maintain the highest ethical standards in their work.”
The representative body insisted that the professional requirement to exercise independent judgment in all matters was “very deeply engrained in barristers”.
“There is no hierarchy in barristers’ chambers. Professional advancement is not dependent on the approval of one’s peers, but simply on the quality of each individual’s work.
“The pressures that exist in a corporate environment – to conform, to avoid challenge to superiors, even to subscribe to collective ‘group think’ – are entirely absent from the working world of self-employed barristers.”
The Bar Council said it agreed with the LSB’s general conclusion that “the most effective way” for it to meet gaps in the regulatory framework on ethnics was to issue a statement of policy under the Legal Services Act.
This “high level, principles-based approach” should be accompanied by “the caveat that this does not necessarily indicate a need for substantial change in all areas of regulation” and there should be “nuanced approaches to implementation whereby the different legal professions are all treated appropriately”.
In the consultation paper, the LSB said lawyers must ensure that the duty to act in the best interests of their client did not override their duty to the court, or their duty to act with independence and integrity where these came into conflict.
The Bar Council suggested this should be amended to reflect the fact that a duty to the court “can ‘override’ other duties” and the duty to act with honesty, independence and integrity “can also override other duties”.
However, in general, the duties “do not override each other, there is no order of precedence, and conflicts of duty must be handled as directed by the relevant lawyer’s applicable code of conduct”.
On education and training, the Bar Council said it would be “cautious” in making alterations.
“The BSB has relatively recently put in place an ethics paper as part of the qualification process, and it would be precipitate to conclude that the current structure and process is inadequate.”
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