“Ethical duties”1is a set of reasonably accepted conduct that a lawyer must exhibit in the legal profession.2 These constitute ethical standards that members of the legal profession “owe to one another, their clients, and to the courts.”3 “Conflict between values is inherent in legal practice”4. In Rondel v Worsley5, Lord Reid acknowledged the existence of this conflict noting that every lawyer has a duty to his client “but as an officer of the court concerned with the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may lead to a conflict with his client’s wishes”. In an attempt to fully comprehend the inherent nature of this conflict, this essay will be divided into three sections with a central focus on barristers. The first section will scrutinize the tripartite “ethical duties” of a barrister. The second section will examine the barrister’s duty to her client. The third part will explore the reasons why the lawyer’s ethical duties will override the duty to the client and the consequences of infringement. References to relevant case law, statutes, illustrations and the Bar Standards Board Code of Conduct (“CoC”) will be made throughout the essay to elaborate on the ethical dilemmas faced by barristers.
I – The Tripartite Ethical Duties of the Barrister
The duty to be honest
The first ethical duty is the duty of honesty. To appropriately serve the interest of justice6 and the best interest of the client7, the barrister must act with “honesty and integrity.”8 In the case of BSB v Howard9, Lang J qualified that the term ‘honesty’ connotes probity and adherence to ethical standards”. Matthew Scott noted that while articulacy, shrewdness, and wittiness are very resourceful, they amount to nothing more than revolting trickery which is utterly inimical to justice when employed by the dishonest advocate.10 The duty to act honestly has the requirement that the barrister “must not knowingly or recklessly mislead or attempt to mislead anyone”11. This is crucial, particularly in the intense adversarial litigation atmosphere alluded to by Lord Neuberger. This is because this adversarial system places confidence in parties to properly and justly present their sides with the prospect that truth will emerge from the robust presentations of each side’s arguments.12 The duty of honesty is paramount as the barrister has the dual function as an agent to his client and an officer to the court. An ethical dilemma arises when the barrister’s interest conflicts with the client’s interest. For example, Immigration barrister, Michael Wainwright, was disbarred on the grounds of dishonesty when he lied to his clients, as part of a cover up scheme, for his delays and inaction on their case.13
The duty to comply with professional rules
The purpose of the CoC is to outline the “requirements for practice and the rules and standards of conduct applicable to barristers which are appropriate in the interest of justice”14 The duty to comply with the rules of the profession as accentuated by Lord Neuberger is vital since there are four groups of people are directly affected by the conduct of the barrister.15 Firstly, for the courts as the administration of justice is crucial in an attempt to effectively and efficiently resolve disputes so that justice can be achieved in accordance with the rule of law. Here the barrister is expected to have an overriding duty to assist the Court in the administration of justice and consequently ‘must not deceive or knowingly or recklessly mislead the Court”.16 In the case of White v Bar Standard Board17, it was held that Barrister White’s 3-month suspension was proportionate and appropriate reprimand to his admitted breach of professional standards18. Justice Garnham held that Mr. White’s conduct fell far below the expected standards required of him as a barrister. Secondly, the barrister’s legal profession, as it must not be brought to public disrepute by engaging in conduct that adversely affects his ability to appropriately attend to his practice as an administrator of justice19. Thirdly, the clients, as they are expecting that their best interests will be ‘fearlessly promoted and protected via all proper and lawful means’20. Finally, the general interest of the public as there is the expectation of just and effective representation of liberties and rights by an efficient and independent judiciary system that is committed to the rule of law and the administration of justice. Consequently, the barrister’s duty is not to ‘diminish public confidence in the legal profession”.21
The duty to the court
In Giannarelli v Wraith22, Mason CJ emphatically noted that a lawyer has a primary duty to the court that is overriding and paramount. This duty must be acted with independence in the interest of justice23. The barrister has a duty to make full disclosure of the relevant law to the court.24 It is also incumbent on the counsel not to mislead the court25 by presenting untrue facts or by withholding pertinent facts that are relevant to the knowledge of the court even when the information will adversely affect the barrister’s case. The Court places trust in the barrister to faithfully exercise independent judgment in the conduct of case management in the pursuit of justice in an adversarial system.26 An ethical dilemma arises when there is a conflict between the personal interest of the barrister and duty as an officer of the court.27 Tao Li CJ28 acknowledged that most barristers work in jurisdictions that are adversarial in the context of legal proceedings. This adversarial atmosphere, in itself, provides clues as to the duties owed to the court. This is crucial since, in order to commence fair adjudication on any matter, the judges must be furnished with the proper material. As such, heavy reliance is placed on the barrister to provide the necessary information in these adversarial legal proceedings.
Why they overlap?
Lord Neuberger noted that these ethical duties overlap and, moreover, override the lawyer’s duty to the client29. The overlapping objectives are the proper administration of justice and upholding the integrity of the judicial process in the public interest.30 In Grimwade v Meagher31, Justice Mandie highlighted that the integrity of the judicial process is undermined when lawyers do not exercise the independence and objectivity which are required by the professional responsibilities and their obligations to the Court.
II – The Duty to the Client
While the interest of the clients is arguably a selfish one as they seek a resolution in their favour,32 the barrister must zealously represent their best interest33. However, the barrister cannot do so by any means necessary as he has the duty to maintain his independence34 and must assist the courts in upholding the rule of law.35However, at the heart of the lawyer-client relationship is the duty to keep the client’s affairs confidential.36 An ethical dilemma emerges when the duty of confidentiality to the client conflicts with the duty of proper disclosure to the court particularly when such disclosure may harm the client’s case. In R v Magistrates’ Courts37 the House of Lords held that the duty of confidentiality is supreme as it is a legal professional privilege38. This privilege is not in contravention of the barrister’s duty to the court as there is no requirement for disclosure of confidential information which the barrister have acquired in the progress of his instructions and which the client had not authorized to disclose.39 The barrister must, however, instruct his client on proper court proceedings which include the need to disclose pertinent information that may potentially mislead the court.40 Information pertaining to past convictions, of which is oblivious to the prosecution, must be disclosed. However, if the client refuses to sanction the disclosure disclose to the courts, the barrister must cease to act and return his instructions.41 Given the pressure of the “cut and thrust” of litigation, the lack of disclosure by the barrister may not go unnoticed by an experienced judge or prosecutor counsel. The consequence of such behaviour may be adjournment combined with penalties for the barrister and the client.42
III – Why Duty to the Court Is Paramount to the Duty to the Client
In Britain, and several other jurisdictions, there are set guidelines that barristers must have ‘an overriding duty to the court to and act with independence in the interest of justice.’43 Mason CJ44 added that when the duty to the court conflicts with the duty to the client, the former succeeds. In practice, the conflict between the duties set the limits of the adversarial process. However, I am of the opinion that violating the duty to the court will, in the long run, harm the interest of the client. In Vernon v Bosley45, the claimant’s counsel did not disclose to the trial judge and the Court of Appeal of the inconsistencies in the claimant’s evidence in other proceedings where the defendant was absent. Thorpe L.JJ. and Stuart-Smith LJ held that the claimant’s counsel had a duty to disclose that evidence. He was deemed to have seriously misled the court due to his failure to do so. Consequently, the client’s case and his integrity were lost.
Similarly, in Schreiber v Mulroney46, counsel acting for Schreiber compromised his professional principles in order to please his client47. The counsel for Schreiber had written and circulated scandalous correspondents about counsel acting for Mulroney. Newbould J, in his judgment, deemed his actions to be gross misconduct that warrants an order of personal liability of fees to be paid.
The reasons for the present-day conflict of the barrister’s duties are manifold. Firstly, stiff competition among barristers intensifies to earn the services of clients. Barristers are forced to work more assiduously in their clients’ interests with the fear of losing them to the competitor. Secondly, economic pressure has resulted in barristers handpicking their clients who can offer a better financial return. The fundamental principles of justice take second place to financial reward. This clearly violates the Cab-Rank principle48 and rules on unlawful discrimination49. Thirdly, the commercialization of legal services means that lawyers are increasingly assuming the role of businessmen to attract various categories of clients.
The client is increasingly taking a dominant position as the temptation of larger financial reward and sustaining a livelihood create conflict between the duties of the barrister. The court is interested in justice while clients are interested in justice for themselves. The barrister can be caught in the middle as to the appropriate course of action to take. However, despite these ethical challenges, the duty of proper administration of justice must not be compromised. Such a duty is required by the courts and the general public. Moreover, the barrister is expected to abide by the rules of his profession and failure to do so will result in disciplinary action ranging from fines to suspensions to even disbarment, as in the case of Ian Millard50.
The learned Lord Neuberger, in his address, had eloquently captured the inherent conflict between the ethical duties of the lawyer and the duty to the client. This paper expanded on the duty of honesty, the duty to adhere to professional rules and the duty to the court. Then the duty to the client was delineated. Lastly, the underlying reasons why the duty to the court will override the duty to the client was discussed. Given the limit of this paper, it was not possible to embellish the consequences of contravening rules and standards for barristers. While there are plausible reasons why a barrister may be attempted to forgo his ethical duties in these contemporary times, it must be emphasized that in the public interest of proper administration of justice and the preservation of the integrity of the judicial process, the barrister must choose to honour these duties as they are mandatory requirements of his profession and the courts.
1 also referred to as “professional responsibility”
2 Black’s law dictionary, Black’s Law Dictionary (7th edn, 1999) 904
3 supra n 3
4 Nigel Duncan and others, Professional Ethics (17th edn, Oxford University Press 2016) 68
5 Rondel v Worsley 1969 1 AC 191, 227
6 BSB CD1
7 BSB CD2
8 BSB CD3
9 Bar Standards Board v Howd 2017 4 WLR 54 (EWHC) (Lang J)
10 Scott Matthew, ‘Honesty In Advocacy’ (Advocacy Tips, 24th April 2016)
11 BSB Handbook rC9 1
12 Felicity Nagorcka and others, Stranded Between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in Adversarial and Inquisitorial Systems of Justice (29 Melbourne University Law Review 2005) 466
13 Kate Beioley, ‘Barrister disbarred for lying to client and acting without qualifications ‘ (The Lawyer | Legal News and Jobs | Advancing the business of law, 5 December 2014)
14 BSB paragraph 301
15 Geoffrey Ma Tao-li, The Practice of Law: A Vocation Survives Amidst Globalisation: International Malaysia Law Conference 2014 in Kuala Lumpur, Malaysia (2014) 2
16 supra n13
17 White v Bar Standards Board 2015 1 QBD 3583 (EWHC)
18 CD 3, Rule C91
19 BSB para 301(b)
20 BSB para 303 (a)
21 BSB para 301 (a)(iii)
22 Giannarelli v Wraith 1988 165 CLR 556 (HCA) (Mason CJ)
23 BSB para 302
24 Glebe Sugar Refining Company Ltd v Trustees of Port and Harbours an Greenock 1921 2 AC 86 (HL) (Lord Birkinghead)
25 supra n10
26 supra n19, at 578
27 supra n17
28 supra n14, at 3
29 Lord Neuberger, ‘Ethics and advocacy in the twenty-first century’ (The Lord Slynn Memorial Lecture 2016, 15 June 2016)
30 Lyndon Maither, “The 325”: The Supreme Court and Our Criminal Code and Ors (Lyndon Maither c2001) 5508
31 Grimwade v Meagher 1995 1 VR 451 (HC) (Mandie J)
32 supra n15, at 10
33 BSB CD2
34 BSB CD4
35 BSB CD1
36 BSB CD6
37 Regina v Derby Magistrates Court Ex Parte B: 1995 4 All ER 526 (HL)
38 In Baker v Campbell 1983 153 CLR 51 (HC), Deane J noted that under the principle of legal professional privilege, a client is entitled to legal representation without the fear of subsequent disclosure of information.
39 BSB Rule II. C1. R3
40 BSB Rule II. C1. G9
41 BSB Rule II CR3. R11
42 Criminal Justice Act 1998, s 36
43 BSB para 302
44 Giannarelli v Wraith 1988 165 CLR 556 (HCA) (Mason CJ)
45 Vernon v Bosley 1997 1 ER 576 (CA)
46 Schreiber v Mulroney 2007 1 CanLII 31754 (SC)
47 BSB para 307 (C) a barrister must not compromise his professional standards in order to please his client, the Court or a third party, including any mediator.
48 BSB Rule C30.7.b: the instructions must be accepted by the barristers “irrespective of the identity of the client, the nature of the case to which the instructions relate and whether the client is paying privately or is publicly funded; any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.”
49 BSB CD8
50 Ian Millard, an unregistered barrister was disbarred at a hearing before a 5-person disciplinary tribunal held on 27th October 2016 for contravention of BSB CD5 after posting anti-semantic comments on twitter. Thomas Connelly, ‘Barrister who posted anti-Semitic tweets booted out of profession’ (Legal Cheek, 28th October)