It is under extreme pressureand with great momentum that a barrister undertakes his work in the court room.Lord Neuberger alludes to such burdens, stating that ‘they work under thepressure of the cut and thrust of litigation’,1a phrase which very suitably expresses the turbulent environment in which abarrister works whilst endeavouring to secure the fair administration of justice.
Ethical guidance is key when working in such a fast paced environment. The BarStandards Board (BSB) Code of Conduct sets out the core ethical duties of abarrister. These are rules based instructions to aid a barrister’s decisionmaking and with which a barrister must comply in order to approach his work inan ethical and just manner.
Lord Neuberger brings to light three coreduties that will be discussed throughout this paper; duty to the court in theadministration of justice (CD1), duty to act in the best interests of eachclient (CD2), and duty to act with honesty and integrity (CD3).2When applied to the ethical dilemmas faced by barristers in the court room, itis easy to see how conflict can arise as to which duty should be adhered towith more weight. This is particularly prevalent in the work of criminalbarristers whose actions have immense impact on the lives of their clients.Serving time in prison, the repercussions of a criminal record, and a tarnishedreputation are hard to remunerate following a false conviction. It is thereforeunderstandable that a barrister may lean towards prioritizing duty to theclient, contrary to Lord Neuberger’s conclusion that it is duty to the courtthat should take precedence.
By focusing on ethical dilemmas faced by criminalbarristers, I will assess this conclusion and discuss to what extent it isright that CD2 should transcend upon all others. * * *Acting on Behalf of a “Guilty Client” The question as to how you canhonestly act on behalf of a guilty defendant is often posed to aspiring andpracticing defence barristers. It seems incomprehensible to the layman that onecan stand in front of the court and represent a person whom you believe to beguilty. However, Article 6 of the Human Right Act 1998 states that everyone hasa right to a fair trial,3free from discrimination and with unbiased representation.4This right is described as ‘fundamental to the rule of law and to democracyitself’.5The ‘cab-rank’ system in the UK dictates that a barrister must agree torepresent any client in a case within his competency and this includescontemptible defendants with overwhelming cases.
This lets all defendants haverepresentation in court, and allows a barrister to defend his client withoutfear of blame for the outcome.6 Focusing attention on the coreduties presented by the BSB, it is clear to see that this dilemma raisestension between CD2 and the moral standing of the defending barrister. Whilstit may seem to be for the greater public interest to lead such a case towards aconviction, the BSB Code of Conduct never explicitly states that it is the dutyof a barrister to work towards the greater good. That is the overarching dutyof the court system, and in order to achieve fair standards of justice, ittakes each barrister to comply with the Code of Conduct.
It is not right that’advocates for a client should take a moral stance’ against their client.7This rule ensures that each client is fairly represented in an unbiased fashionand would lessen the chance of a guilty conviction where it is not befitting. Furthermore, writer SamuelJohnson encouraged barristers to forego their moral bearings by stating: Youdo not know it to be good or bad until the judge determines it… An argumentwhich does not convince yourself, may convince the judge to whom you urge it.8 The English system of provingguilt beyond all reasonable doubts means that a lawyer’s opinion of hisclient’s guilt is irrelevant, and it is a matter for the judge and the jury todecide the direction of the case. Defence Following a Confession Aproblem of ethics is likely to arise when a client confesses his guilt to his defencebarrister but continues to plead not guilty when in court. This dilemmaencompasses four of the core duties; CD1, CD2, CD3 and CD6, the affairs of eachclient must be kept confidential.9Lord Neuberger states that any of these core duties should be overridden byCD1.
10Not only is this recommended in the BSB Code of Conduct, but it is alsosupported by the Australian case of Giannerelliv Wraith (1988) in which Mason CJ stated that ‘theduty to the court is paramount and must be performed, even if the client givesinstructions to the contrary’.11 In the case of a private confession, it ispossible for the barrister to continue representing their client. However, itbecomes the duty of the barrister to in no way indicate the presence of analibi or present evidence which may suggest their client’s innocence. Whilstthe cross examination of witnesses for the prosecution can continue, it iswrong for the barrister to present a case for their client by calling witnesseswho may aid the case of the defendant. This would be contrary to both CD1 andCD3.
12Not only does it disrupt the fair administration of justice by misleading thecourt, but it also demonstrates a lack of honesty which can go on to negativelyimpact a barristers personal practice, as well as the wider legal community. The BSB Code of Conduct provides guidance asto how to act in such a situation. It clearly states that ‘dutyto act in the best interests of each client is subject to your duty to thecourt’.13This does not instruct a barrister to disclose a client’s guilty plea to thecourt. CD6 states that the affairs of each client must be kept confidential.14Without prior permission, it is not the place of a barrister to disclose anyinformation to the court, or any other person or authorities.
Although it mayseem to breach the duty to the court, so long as no actions are taken tomislead the court, refraining from divulging a client’s private matters doesnot constitute a breach of that duty. This is reinforced in the case of Metcalf v Weatherill and Another: Theadvocate’s duty to his own client is subject to his duty to the court: theadvocate’s proper discharge of his duty to his client should not cause him tobe accused of being in breach of his duty to the court.15 RC3 of the Code of Conduct provides thatproviding knowingly misleading evidence to the court is a matter of misconduct.16This may occur when a client continues to instruct their barrister to providethem with a defence case. Whilst not following a client’s instructions may seemcontrary to CD2, Herring rightly states that ‘there isall the difference in the world in doing what someone wants and doing what isin that person’s best interests.’17A client may instruct their barrister to continue proving evidence for theircase. Not only does a barrister jeopardise his career by acting contrary toCD1, but as Herring suggests, it is unlikely to fetch the results that theclient desires. It remains in the best interest of all parties to adhere to theCode of Conduct and partake in an honest administration of justice.
Error of Fact on the Part of the Opposition So far there has been a strong case inagreement with Lord Neuberger towards the dominance of CD1 over all other coreduties expressed in the BSB Code of Conduct. However, the adversarial nature ofour legal system presents one ethical dilemma where duty to the client reinsover duty to the court. When the prosecution makes an error of fact, thedefence counsel is ‘under no duty to correct it’.18This seems to conflict with CD1 and CD3 as it is knowingly allowing the courtto be mislead. Failing to bring light to this may be perceived as dishonest.However, by having an adversarial legal system, a barrister is only required toargue the case of their client. This is contrary to an inquisitorial systemwhere the aim of the court is to find and present the facts of the case.
Anadversarial system consists of two counsels providing the best possible casesfor their clients. It is not always in the best interest of a client to correcta mistake of fact on the part of the opposition. It was stated in the case of Medcalf and Weatherill that ‘theadvocate owes no duty to his client’s opponent’.19This is further backed by Law Professor, Daniel Markovits, who states: Unlike juries and judges, adversary lawyers should notpursue a true account of the facts of a case and promote a dispassionateapplication of the law to these facts. Instead, they should try aggressively tomanipulate both the facts and the law to suit their clients’ purposes . . .
they should strivedisproportionately and at times almost exclusively to promote their clients’interests.20 Markovits is suggesting that it is in fact theprimary function of a barrister to work exclusively in the interest of theirclient, that the law is a tool by which to succeed on behalf of a client,rather than a means by which justice can be honoured and administered in a fairmanner. This demonstrates duty to the client can, in certain circumstances,prevail over duty to the court, contrary to Lord Neuberger’s statement * * * Inconclusion, it is clear to see that Lord Neuberger is well supported in statingthat a barrister’s duty to the court overrides any other duty or moral bearing. Applying the BSB Code of Conduct to ethicaldilemmas demonstrates this as it is, for the most part, duty to the court whichprevails.
Markovits avidly promotes the importance of honouring a barrister’sduty to his client, however despite its application to the final dilemma, it clearlyhas no bearing over the ‘ethical duties’ introduced by Lord Neuberger. The BSB Code of Conductexplicitly instructs that ‘duty to act in the best interests ofeach client is subject to your duty to the court’.21 It is these rules by whichbarristers monitor their ethical approach to the profession, it is this ethicaladvice that should be deemed the authority on the matter. 1 Lord Neuberger, President ofthe Supreme Court of the United Kingdom, ‘Ethics and Advocacy in theTwenty-First Century’ (Lord Slynn Memorial Lecture, 2016) < https://www.
supremecourt.uk/docs/speech-160615.pdf>accessed 12th December 20172 Bar Standards Board Handbook,3rd edn. (2017 as amended), 223 Human Rights Act 1998,schedule 1, part 1, Article 64 Ibid. Article 145 Liberty, ‘Article 6 Right toa Fair Trial’, (‘Protecting Civil Liberties, Promoting human Rights’), < https://www.
liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/article-6-right-fair-trial>accessed12th December 20176 The Honourable Society of theMiddle Temple, ‘Guide to Professional Conduct and Ethics’, (Middle Temple, 2014),< http://www.middletemple.org.uk/sites/default/files/documents/library-archive/1professional-conduct.pdf>accessed12th December 20177 M. Simons, ‘Lawyers not moral judges’,quoted in C.
Parker and A. Evans, Inside Lawyers’ Ethics (CambridgeUniversity Press, 2007), 38 James Boswell, ‘The Life ofDr Johnson’ (J. Sharpe, 1880), 1689 Bar Standards Board Handbook,2210 Lord Neuberger11 Giannerelli v Wraith (1988)165 CLR 54312 Bar Standards Board Handbook,2213 Ibid, 2314 Ibid.15 Medcalf v Weatherill andAnother 2002 UKHL 27, 2002 3 All ER 73116 Bar Standards Board Handbook,2317 Jonathon Herring, ‘LegalEthics’ (2nd edn., Oxford University Press, 2017), 45318 Mark Stobbs, ‘Ethical IssuesFacing the Bar’, (1998) Vol. 1, Legal Ethics, 2719 Medcalfv Weatherill and Another 200220 D.
Markovits, A Modern Legal Ethics (PrincetonUniversity Press, 2012), 321 Bar Standards Handbook, 23