Barristers’ Conflicts of Interest

Under the old Bar Code the basic rule on conflict was expressed as an accepted excep­tion to the cab rank rule. A barrister could reject instructions

if there is or appears to be a conflict or a risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting instructions).¹²³

Similarly, when representing multiple clients there appeared to be a conflict between them, the barrister was told to withdraw from the representation unless all parties consented.¹²⁴ There was little more guidance provided.

The new Code of Conduct contains an outcome that ‘BSB authorised persons do not accept instructions from clients where there is a conflict between their own inter­ests and the clients’ or where there is a conflict between one or more clients except when permitted in the Handbook’.¹²⁵ The rules provide that

[y]ou must not accept instructions and... you must cease to act and return any instructions which you have accepted, if ‘due to any previous instructions you are not able to fulfill your obligation to act in the best interests of the prospective client¹²⁶

or

there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances’.¹²⁷

¹²³ BSB/Bar Council, Code of Conduct of the Bar of England and Wales 1981, 8th edn, as amended (London, Bar Standards Board, 2004) pt VI, para 603(e).

¹²⁴ ibid, para 608.

¹²⁵ BSB, Handbook2014, pt 2: The Code of Conduct, oC12.

¹²⁶ ibid, rC21.1.

¹²⁷ ibid, rC21.3.

As considered in the previous chapter, barristers must also refuse instructions if there is a ‘real risk that information confidential to another former or existing client may prejudice the ability to act in the best interests of the prospective client, unless there is informed consent to disclosure of that confidential information’.¹²⁸ In general, the rules on conflicts and confidentiality are less onerous than those in the solicitors’ Code. This is explained partly by the fact that barristers in the same chambers are considered to be independent of each other and partly because they are assumed to be able to act on different sides in the same case. Therefore, an area of potential regulation is closed off unless, of course, the implications of barristers operating collectively are considered.

The Bar Code does not address what it is about previous instructions that may prevent barristers fulfilling their obligation to act in the best interests of each client. This leaves the position regarding past and present client conflicts of interest in the same or related matters open. There are a number of possibilities. For example, it may be thought that barristers, as advocates, are generally unaffected by knowledge about previous clients. In that case, it would need to be something exceptional about the past case that invoked the rule. This position is unlikely because it would mean that barristers would not accept a duty of full disclosure to present clients.

Under the Code of Conduct in the new BSB Handbook, one of the new outcomes is that BSB authorised persons must not ‘... accept instructions from clients where there is a conflict between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook’.¹²⁹ Specific rules provide that barristers must not accept instructions to act in a matter if, due to any existing or previous instructions, they are not able to fulfil their obligation to act in the best interests of the prospective client, including where there is a conflict of interest.¹³⁰ An exception is provided where all of the clients who have an interest in the particular matter give their informed consent to the barrister acting in such circumstances.¹³¹ The new Bar Code prohibits a barrister from acting where there are information conflicts between past and present clients.¹³²

XI.