CONFLICTS AT THE BAR: THE APPROACH OF THE BAR COUNCIL OF ENGLAND AND WALES

At present, the rules of conduct for barristers are contained in the Bar Code of Conduct.³⁰ First published in 1981,³¹ the Code is noticeably shorter than that governing solicitors.³² It is also more general in its guidance, containing no

²⁶ Law Commission Consultation Paper No 124, Fiduciary Duties and Regulatory Rules at 3.

²⁷ H McVea, Financial Conglomerates and the Chinese Wall—Regulating Conflicts of Interest (Clarendon Press, Oxford, 1993) at 23 to 28.

²⁸ Ibid.

²⁹ Law Commission, n 26 above at 3.

³⁰ The General Council of the Bar of England and Wales, London, 1998.

³¹ Thornton states: ‘Until 1980 the Bar had no code of conduct. The professional rules and oblig­ations required of practising barristers, known colloquially as the Bar’s conduct and etiquette, were passed on by word of mouth, mainly during pupillage, and were based on tradition, resolutions of the Bar Council which were endorsed by a subsequent General Meeting of the Bar, specific rulings of the Bar Council and judicial influence, usually by way of dicta in judgments raising points of court procedure.’ A Thornton, ‘Responsibility and Ethics of the English Bar’, in R Cranston (ed), Legal Ethics and Professional Responsibility (Clarendon Press, Oxford, 1995) at 55.

³² The eighth edition of The Guide runs to some 893 pages whereas the Bar Code of Conduct is only some 200 pages or so. See also, D Nicolson and J Webb, Professional Legal Ethics, (Oxford University Press, Oxford, 1999) at 99: ‘... the [Guide] devotes separate and fairly lengthy chapters to precise definitions of the solicitor’s general duties regarding conflicts of interest and maintaining confidentiality. Whereas the CCB contains only a handful of paragraphs merely exhorting barristers to avoid conflicts of interest and breaching confidentiality.’

specific examples or accompanying commentaries.

A practising barrister must not accept any brief or instructions if to do so would cause him to be professionally embarrassed.

Such embarrassment may be caused:

(e) if there is or appears to be some conflict or a significant risk of some conflict either between the interests of the barrister and some other person or between the inter­ests of any one or more of his clients;

(f) if the matter is one in which there is a risk of a breach of confidences entrusted to him by another client or where the knowledge which he possesses of the affairs of another client would give him an undue advantage.

It can be seen that although the rules do not specifically distinguish between dif­ferent types of conflict, they are similar to those adopted by the Law Society in that they are designed to prevent barristers from acting in conflict situations, rather than to determine the way in which such conflicts should be ‘managed’. In short, it appears that a barrister should not act if:

i) his interests conflict with his client’s interests;

ii) the interests of one or more of his clients conflict with those of a new client;

iii) he is in possession of information from one client which would be beneficial to another client.

The duty to maintain confidentiality in respect of clients’ affairs continues even after the conclusion of the case:

Whether or not the relation of counsel and client continues, a practising barrister must preserve the confidentiality of his lay client’s affairs and must not without prior con­sent of his lay client or as permitted by law lend or reveal the contents of papers in any brief or instructions to or communicate to any third person (other than a devil, his pupil or any of the staff of his chambers who need to know it for the performance of their duties) information which has been entrusted to him in confidence or use such information to his lay client’s detriment or to his own or another’s advantage.³³

To a considerable extent, therefore, the Bar Council’s rules provide a similar framework to that which is provided by the Law Society for solicitors.

The first relates to acting simultaneously for different clients who have con­flicting interests. Rule 506 states:

A practising barrister must cease to act...

(b) if having accepted a brief or instructions on behalf of more than one client there is or appears to be:

(i) a conflict or a significant risk of a conflict between the interests of any one or more of such clients; or

³³ Para 603.

(11) risk of a breach of confidence;

and the clients do not all consent to him continuing to act.

This allows a barrister to act in a same matter conflict provided that he first obtains both clients’ consent. Therefore, in theory, he could represent two or more co-defendants in a criminal or civil case. Further guidance is given on this matter in rule 504.4:

In cases involving several parties, a practising barrister must... consider... whether, consistently with the proper and efficient administration of justice and having regard to all the circumstances and any actual or potential conflict of interest, his client needs to be separately represented or advised or whether he could properly be jointly repre­sented or advised with another party or, where there is more than one client, whether it is in all their interests to be jointly represented.

There is potential difficulty in deciding these issues on receipt of instructions from both clients, and by the time a conflict comes to light the case may be well advanced. If, for example, a co-defendant in a criminal case wishes to change his story halfway through the trial in order to blame the other defendant, withdrawing from the case at that stage might not be in the interests of either defendant.

The second difference between the Bar Council and the Law Society’s approach to conflicts relates to barristers acting against other members of the same chambers. There is no prohibition on barristers from the same chambers acting against each other in the one case.

We frequently act against each other. I have often acted against the person who shares my room in chambers. There are no physical barriers to prevent information from being seen by your opponent, although I don’t tend to leave things lying around on my desk in such situations.

It may seem odd that it is acceptable for a barrister to act against fellow barris­ters from the same chambers, and yet it is considered inappropriate for a large firm of solicitors to act for several clients in potential conflict situations, even if those clients give their consent.^[212] The justification for this is, presumably, that each barrister is a sole practitioner, whereas a firm of solicitors is a single eco­nomic entity. However, it might be argued that as barristers offer a similar ser­vice to solicitors, namely advocacy and the provision of legal advice, the same rules should be applicable to both branches of the profession. It could even be argued that barristers should be bound by stricter rules as by the time most bar­risters get involved in a case, proceedings have already been issued. Although barristers often act for a particular client for a short period, perhaps dealing with one specific aspect of a case which requires specialist advice, the possibil­ity that confidentiality will be breached still remains.

Another point of concern relates to the supervision of such arrangements. In the case of solicitors there is the possibility of an instructed barrister querying whether a firm should be acting for clients with conflicting interests,³⁵ but there is no equivalent oversight in respect of barristers.

Why therefore does the Bar Council permit barristers from the same cham­bers to act against each other? Part of the answer may lie in the fact that the Bar is a much smaller profession,³⁶ so there would be less choice for clients if bar­risters were not allowed to act in potential conflict situations.

A barrister in independent practice must comply with the ‘cab-rank’ rule and accord­ingly... accept any brief to appear before a court in which he professes to practise; accept any instructions; act for any person on whose behalf he is briefed or instructed; and do so irrespective of (i) the party on whose behalf he is briefed or instructed, (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character, reputation, guilt or innocence of that person.³⁷

Moreover, it is probably still the case that members of the Bar tend to specialise to a greater degree than solicitors, while particular chambers specialise in spe­cific areas of law.³⁸ As one solicitor specialising in insurance work pointed out:

Sometimes solicitors representing different sides in a dispute phone the same chambers requesting the same counsel. It can be a bit of a rush sometimes. It is such a problem in certain fields of expertise that it is almost a fight to see who gets in first. Of course, it is vital that you can instruct the barrister of your choice to ensure that your client receives the best possible representation.

The choice of barrister would be considerably restricted if the Bar Council were to adopt the principle that no barrister could act against a fellow member of chambers.³⁹

³⁵ Ironically, para 605 states that ‘if a barrister in independent practice forms the view that there is a conflict of interest between his lay client and his professional client he must advise that it would be in the lay client’s interest to instruct another professional adviser and such advice must be given either in writing or at a conference at which both the professional client and the lay client are pre­sent.’ It appears that barristers are more than happy to invoke this provision if they feel there is such a conflict. One senior barrister reported: ‘I have had cause to intervene on more than one occasion where I believed there was a conflict of interest between my professional client and my lay client.

³⁶ In 1996, there were approximately 68,000 solicitors holding practising certificates as opposed to 9,369 barristers, see Trends in the Solicitors’ Profession: Annual Statistical Report (The Law Society, London, 1996) at 10, cited in A Boon and J Levin, n 5 above, n 83 at 57.

³⁷A Boon and J Levin, n 5 above at 89.

³⁸ For example, 3 and 8 New Square are renowned for their work in intellectual property law, and Atkin and Keating Chambers for their expertise in construction law. See R SenGupta (ed), Chambers and Partners—A Guide to the Legal Profession 1999—2000 (Chambers & Partners Publishing, London, 1999).

³⁹ See further, A Arden, ‘The case for partnership’, (1999). 47 The Lawyer 30: ‘It has been sug­gested that there are chambers so specialist that they would not be economically viable if they were

Three additional factors were suggested by one senior barrister to account for the difference in approach between the Bar Council and the Law Society. These were:

i) the fact that there is no financial incentive to act dishonourably;

ii) the competitiveness of barristers; and

iii) the strong ethical code at the Bar.

He stated:

There is no financial incentive to abuse your position as we are individuals and not part of a partnership.... You still get your brief fee, win or lose. Also, you very much want to beat someone from your own set. So you will do your very best for your client. Undoubtedly you get cheats in all walks of life but ethics are ingrained in you at the Bar and people simply do not look at anyone else’s papers.⁴⁰

Another barrister echoed these thoughts:

There is a strong ethical code at the Bar. We are trained quite extensively in this and it is just something that you would not breach. It is akin to killing your mother. You just would not do it. You will fight tooth and nail against someone from your own set. In fact, I used to share a flat with another person from chambers, and obviously we were good friends, but as soon as we were against each other the whole atmosphere in the house used to change. I would go to my room and she would go to hers and we would prepare totally separately.

Are barristers, therefore, more ethical than solicitors? It has been suggested that this may indeed be the case:

Ethicality is strongly associated with sole practice in professional and legal culture. This is because professionalism is an individualistic notion; the individual is the unit of service, and individual qualities, judgement and responsibility are the essence of professionalism... The Bar is a good example of this.⁴¹

This suggestion that ethical standards tend to be higher amongst sole practi­tioners than amongst members of an organisation is a recurring theme:

Psychologists, organisation theorists, and economists all know that the ethics of ethi­cal decision-making change dramatically when the individual works in an organisa­tional setting. Loyalties become tangled and personal responsibilities get diffused. Bucks are passed and guilt knowledge by-passed. Chains of command not only tie people’s hands, they fetter their minds and consciences as well.⁴²

unable to act on both sides of a case (something of which solicitors are in any event increasingly— and publicly—wary). There are three answers to this, if there is any truth in it at all. It is extremely rare and should not be allowed to wag the dog. At worst, it may mean some reallocation of work between a small number of specialist sets. And those same market forces will lead to retention of the current chambers system in those areas.’

⁴⁰ He did, however, foresee that the first of these reasons may cease to apply when conditional fee agreements are introduced at the Bar (now in place as of 1 April 2000).

⁴¹ A Boon and J Levin, n 5 above at 70.

⁴² DJ Luban, ‘Milgram Revisited’, (1998) 9(2) Researching Law: An ABF Update 1 at 4, cited in A Boon and J Levin, n 5 above at 68.

Barristers also emphasise the importance of maintaining their individual repu­tations. As one barrister put it to me:

Your reputation at the Bar is the only thing you’ve got and you would never risk jeop­ardising your integrity.

It appears that some members of other jurisdictions do indeed regard the English Bar as a model of integrity. For example, this is the view of one Canadian commentator:

We all recognise the power of the bar’s ability to secure a high degree of cultural con­formity... accordingly, in the case of the English Bar, culture can be seen as an impor­tant vehicle for the transmission of values and the regulation of behaviour.^[213]

In contrast, it has been suggested that the solicitors’ profession has lost its col­legiate culture and the introduction of corporate-style management.^[214]

The courts have upheld this view of barristers’ probity. In Laker Airways Inc v FLS Aerospace Ltd.^[215] the court was asked to determine whether a barrister who had been appointed as an arbitrator by one party under a contract should be removed by the court on the ground that another barrister from the same chambers had been instructed in the arbitration by the other party. The appel­lant put forward three main arguments as to why the arbitrator should be removed:

i) there was an inherent conflict of interest between the arbitrator and counsel which prevented the arbitrator from acting with impartiality;

ii) there was a risk that information might be transmitted between arbitrator and counsel; and

iii) the arbitrator’s judgment might be coloured by his familiarity with counsel. In dismissing the applicant’s case, Rix J refuted each one of these points in turn. First, whilst admitting that there was ‘a conflict of interest’, he went on to state that:

... it was not really a conflict, as a conflict of interest only properly arises as an imped­iment when the same person (or what in law is regarded as the same person) under­takes conflicting duties to different clients or puts himself in a position where he has a conflict between his duty to his client and his own self-interest.

He justified this conclusion by holding that as ‘barristers are all self-employed’, they were not regarded in law as the ‘same person’. He added:

If barristers were employed by the same organisation or were all partners of one another in the same firm, and then sought to appear against or before one another, the position would be different.

Moreover, Rix J believed this not only to be a correct exposition of the law but also a practical necessity:

If it were otherwise, public access to the bar would be severely limited: each time a member of a set of chambers accepted instructions, he would debar any other mem­ber of those chambers, although independently practising self-employed barristers, from accepting instructions from another party with a different interest in the dispute... This would be a severe limitation on the administration of justice in this country. Especially in the context of specialist legal services, where it may be that only a hand­ful of chambers practise within a particular speciality, it would mean that public choice of counsel would be drastically cut.^[216]

Rix J also held there was no risk of information being transmitted between the two barristers:

Were barristers partners of one another, or fellow-employees, then it might be that even ‘Chinese walls’ of the most successful kind would not be enough to prevent a con­flict of interest arising out of the danger that obligations of confidence would be prej­udiced. Since, however, barristers are independent self-employed practitioners, it seems to me that if an applicant wished to complain because of instructions given to two members of the same chambers on either side of the case, the burden would lie on him to show a quia timet case of breach of confidentiality.^[217]

No such risk had been proven on the facts of the case.

In dismissing the final concern of the applicant, that familiarity might colour the arbitrator’s judgment, Rix J found that, in this instance, the two barristers hardly knew one another. However, he added:

It remains the case in any given speciality that the bar’s numbers, even in London, are not so great as to make it unlikely that counsel, and particularly senior and experi­enced counsel such as may well be appointed... know each other well. But it is as much a matter of daily routine of practice over many years as a reflection of the shar­ing of tenure in the same chambers. In any event, one barrister may be on better terms with a barrister in other chambers than with anyone in his own set.

On the question of whether there was a collegiate atmosphere within cham­bers, with members promoting the employment of their fellows, socialising with one another, and holding themselves out to clients as a group sharing a special expertise, the learned judge felt unable to generalise about such matters. He did concede that ‘some chambers are happier places than others’, but held to his view that ‘chambers are made up of their individual barristers with their sepa­rate reputations, each working on their own papers for their own clients, and sharing neither career nor remuneration.’^[218]

It would appear, therefore, that the judge’s decision in Laker Airways Inc v FLS Aerospace was justified on two grounds. First, as barristers are self­employed and do not form partnerships, knowledge is not imputed to other members of chambers. Secondly, barristers have high ethical standards. On the first point, one commentator has suggested that

although the judgment is correct as a matter of law, it is a ‘legal quirk’ and it seems a pretty astonishing distinction... Barristers’ chambers can be relied on to keep the information confidential, whereas professional people such as accountants and solic­itors cannot be relied on.^[219]

The head of professional standards and legal services at the Bar Council, as might be anticipated, disagrees. He maintains that, from both a legal and prac­tical point of view, the Bar is very different from solicitors and accountants:

Solicitors are entirely different from the Bar. As a matter of law, one partner knows what the other partner knows.^[220]

It does seem difficult to defend such a stark difference between the two regula­tory regimes on the basis of the different contractual relationship applicable within chambers as compared with solicitors’ firms. Moreover, it has previously been suggested by the Court of Appeal that there is no legal authority for the proposition that a ‘large law firm of many partners is obliged to disclose any knowledge relevant to [a client’s] affairs that may be possessed by any of its partners or staff.’^[221] On the other hand, the fact that barristers do not share their profits with other members of chambers, and as such could be said to be in direct competition with one another, could indeed contribute to a different culture as far as their approach to ‘conflicts’ is concerned.

It may be, however, that it is the second basis for the judgment that explains the difference in the courts’ attitude towards barristers acting in conflict situa- tions—namely, that barristers do indeed have higher ethical standards than their solicitor counterparts.^[222] This is despite the fact that some commentators have argued that barristers offer less protection than solicitors when acting in a conflict situation:

Common complaints are that papers are left lying around chambers for all to see— briefs headed up for one barrister’s attention could quite easily be passed to another

The Modern Fiduciary: Conflicts in Other Professions 63 counsel in the same set... Then there is the general chat that must go on when people work together in close proximity and discuss interesting legal points ‘over tea’.⁵³

Some barristers concede that there are insufficient safeguards in place. A newly- qualified barrister told me:

Sometime you can’t help seeing papers or talking about a case. I once started telling the chap who shares my room in chambers about my latest brief and after about five minutes he said, ‘Oh, hang on. I think I’ve just been instructed for the other side.’

It must also be remembered that many barristers share one clerk, so that confi­dential materials on either side of the one case will often be seen by at least one other person in chambers. As one barrister pointed out to me:

When the instructions or brief comes in, the clerk must read it for two reasons. Firstly, if a particular barrister has not been requested he will have to decide which of us to give it to. Secondly, he should have some idea what the case is about to answer queries from solicitors and to see whether the person he chooses to act has already been instructed by the other side.

Despite the obvious dangers involved in allowing members of chambers to act against one another, one solicitor reported that he found it quite useful to instruct a barrister from the same set as the barrister who had been briefed by the other side:

Sometimes you get cases which really ought to be settled and then it’s very often eas­ier if you’ve instructed counsel in the same chambers so that the two of them can sit down in the pub and have a chat. They inject some sense into the situation.⁵⁴

It is unlikely that the Bar Council’s attitude towards such ‘conflicts’ will change, even though there has been pressure from some quarters to amend current prac­tices.⁵⁵ Following the decision in Laker Airways v FLS Aerospace, the Bar Council set up a working group to examine the issue of conflicts of interest. However, both the executive secretary to the professional standards committee and the head of the professional standards division were keen to point out that ‘the Bar is free to advise competing parties because barristers work indepen­dently’. Moreover, they observed that it is ‘unlikely that any guidelines issued by the working group would be binding on barristers.’⁵⁶