Professional Conduct
| Author | Peter Lyons |
| Pages | 35-46 |
A dishonest advocate is a pox on the administration of justice.
In the House of Lords, Lord Diplock said:
‘The acceptance of the Rule of Law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance ... the legal principles that flow from it.’
The system of justice is a series of inter-dependent relationships between various groups: investigative bodies; solicitors; courts; experts; media; clients; and advocates.
An advocate who is untrustworthy not only lets down those who are in direct contact with him, but he also causes a lack of trust in the community of advocates, especially in the eyes of the community at large.
In some respects, we can tolerate the occasional lapse of competence in advocates, but we can never accept a lapse of honesty.
The judge, above all, should be able to rely upon what the advocate says. His word is his bond.
It is in everyone’s interests to have honest advocates. If we don’t, the administration of justice is in peril.
1 The advocate’s duty
The best summary of the advocate’s duty was presented by Lord Denning in the case of Rondel v Worsley.
But Lord Denning was writing in the Court of Appeal and his lucid prose will give you the main duties and responsibilities of the advocate in a nutshell:
36 Advocacy: A Practical Guide
‘As an advocate he is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No one save he can address the judge, unless it be a litigant in person.
This carries with it a corresponding responsibility. A barrister cannot pick and choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him until the end.
Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee.
He must accept the brief and do all he honourably can on behalf of his client. I say, ‘all he honourably can’ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things.
He owes an allegiance to a higher cause. It is the cause of justice and truth. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case.
He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.’
2 Rules of conduct
The barrister in England is bound by the Code of Conduct, which can be found on the website of the Bar Standards Board. It is shorter than it used to be. So is the Code of Conduct for Solicitors, which is found on the website of the Solicitors Regulation Authority.
The latest fad is with something called Outcomes Focused Regulation, a phrase which is as obscure as it is ugly.
Solicitors who consult the rules will encounter a series of Principles, Outcomes and Indicative Behaviours. The word ‘behaviours’ does not appear in the dictionary yet.
Nevertheless, barristers and solicitors must consult the rules wherever they encounter an ethical problem. Quite a lot of practitioners do not recognise
when there is an ethical problem, or if they do, they endeavour to do all in their power to get around it or mitigate its effect.
There are two main tests for recognising an ethical problem. They have varying degrees of efficacy and depend to a large extent on the character of the person employing them.
The first is the Motherhood Test. When faced with a problem you ask yourself, ‘Would my mother have said that what I am about to do is wrong?’
The vast majority of us know what is right and what is wrong. It is how we were brought up. It is deeply embedded in our conscience and never goes away.
The second is the Fish Test. Ask yourself, ‘Does it smell fishy?’, because, if it does, it probably is.
The next decision, after you have concluded that you have an ethical problem, is what to do about it.
Whatever you do, do not suffer in silence. Don’t carry the burden yourself because it can become intolerable. When in doubt, ask someone, and preferably not the person who is asking you to do it.
First, consult the rules. There is guidance in the Codes of Conduct and the decided cases. Another independent senior practitioner, a well-regarded barrister or a retired judge will always be glad to help you. They...
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