An Introduction to Professional Ethics Malcolm Knott My name is Malcolm Knott.

I sit as a Recorder in the London Crown Courts and elsewhere. This podcast deals with the subject of professional conduct and professional ethics. I want to talk about what it means to be a barrister, how you can develop a reputation as a direct, honest and reliable practitioner and the fundamental principles which underpin the Bar. I am going to set the scene, as it were, by reading some passages from the speech of Lord Hobhouse in a House of Lords case called Medcalf and Mardell. Lord Hobhouse said It is fundamental to a just and fair judicial system that there be available to a litigant, competent and independent legal representation. The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay clients best interests. The professional advocate is in a privileged position. He is granted rights of audience. He enjoys certain immunities. In return he owes certain duties to the court and is bound by certain standards of professional conduct ... (I will give you the reference for that case at the end of this podcast.) A barrister needs to be a person you can trust. That means doing the right thing even when others may be acting improperly. We cant all end up doing big cases in the Supreme Court. But every one of us can resolve to be honest and straightforward in our dealings with our clients, our instructing solicitors, our fellow advocates and the courts. The Bar operates on the understanding that a barrister is someone who acts with complete integrity and can be relied upon to do so, always, both in and out of court. That trust and integrity underpins the whole system. Clients, judges and fellow members of the Bar take it for granted that you will behave with impeccable honesty. It is important that you dont betray this trust and never let down the Bar which you represent. Standards are in fact, very high. And they remain high, partly because, when you are in practice at the Bar, people talk about you. Solicitors talk about barristers when they are deciding whom to instruct. Barristers and judges talk about other barristers. The Bar loves to gossip. And if you overstep the mark, or allow your standards to drop, believe me, people will get to hear about it. Your professional conduct is governed by the Code of Conduct. Professional ethics is a broader term and includes the conventions of practice; the things which are expected of you; all those things which will build you a reputation for being direct, honest and reliable. How do you do that?

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First you must develop the habit of meticulous accuracy, particularly in the use of the English language, both orally and in writing. One of the best things about the Bar is that you are free to use English in any way you choose to get the best results for the person you represent. There is enormous freedom to do it your way and the English language helps you in this because it is an extraordinary resource, containing every subtlety of meaning that you could wish for. The downside is, that with so many words to choose from, theres a risk of choosing the wrong words which obscure your meaning. Then you risk giving inaccurate or unclear advice or misleading the court. Attention to detail is important in all in your written work. Solicitors will not want to spend their clients money on a barrister who cannot write good English. If your work has spelling mistakes or misused apostrophes, people will assume that you are not very good, that you are careless, or that you simply dont care about the quality of your work. Here are a few particular points to bear in mind in your written work. Practise, with an S is a verb; I practise law. Practice with a C, is a noun. He has a very busy practice. American English is different but we stick to this distinction. Similarly, advise with an S is a verb; I advise you to pay up. Advice with a C is a noun. He gave me good advice. Judgment, in a legal context the judgment of the court has only one E J.U.D.G.M.E.N.T. Counsel C.O.U.N.S.E.L is a member of the Bar and the plural is the same. I spoke to counsel, could mean I spoke to one two or three members of the Bar. Council C.O.U.N.C.I.L means, for example, a borough council. Forensic is a word which can cause confusion because it has evolved in a strange way. Forensic describes the courtroom process (from Latin forum a place where speeches are made). When scientific evidence began to appear in the courtroom, it naturally became known as forensic science. However, because the media only encountered the term forensic in this new science-based context, the word has slid into having a new popular meaning, which even lawyers have adopted for convenience. However, the original meaning of the word has not been replaced. Strictly speaking, all evidence is forensic and the forensic process means examining and cross examining the witnesses, analysing the documents and making submissions. Its fine to use the word in its more recent media sense, but you should be aware of how it has evolved so that you can use it in its traditional sense when you need to.

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In the legal context the word issue has a very specific meaning. An issue is a question of fact or law to be resolved. Dont use the word in its broader sense to mean a topic, or something we ought to think about. Lastly, on this side of the Atlantic we never talk about witnesses taking the stand. Our witnesses go into the witness box. And they give evidence not testimony. In your oral submissions what you say and how you say it accuracy is equally important. Nothing undermines an advocate more than speaking carelessly, for example by making exaggerated assertions which cannot be strictly supported. The evidence is what the witnesses or documents say, not what you would have liked or hoped them to say. Think before you answer a question, any question, from a client or a solicitor or a judge in court. As Mr Justice Andrew Smith said, in the first of his top ten tips for the young Bar at a recent conference When the judge asks a question, answer it if you know the answer, and if you dont, say so. Dont simply talk in the hope that the judge doesnt notice youve avoided it and dont tell the judge that it is irrelevant. The second way in which you can secure a reputation for being direct, honest, and reliable is by the competent management of your practice. That means being organized, keeping records, dealing with your paperwork effectively, meeting deadlines, and always being punctually on time for court hearings and other appointments; all habits youll develop this year on the course. If you say you will have an advice ready by a certain date then it must be ready and with your client by that date. If you call a plumber who agrees to come at a particular time you expect him to arrive on time. Why should your solicitors and clients expect anything less from you as a barrister? Managing your practice also means continuously improving and updating your professional skills by learning from others at the Bar, attending lectures and courses, reflecting upon your own performances and keeping up to date with legal developments in your field. At the College of Law you must take responsibility for your own learning and that will become part of your professional life.

So, we have dealt with the need for meticulous accuracy and the competent management of your professional practice. The third way in which you can secure a reputation for being direct, honest, and reliable is by understanding, and following, the fundamental ethical principles which underpin the Bar. Those principles are the basis for the Bar Code of Conduct, the Written Standards which accompany the Code and the guidance issued from time to time by the Bar Conduct Committee; all of which you can find on the Bar Councils website.
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The guidance covers a wide range of specific situations. For the moment I am just going to touch on the most important basic principles. Youll be introduced to other areas as you progress through the course. Dont take on work which you cant handle either because it is beyond your competence or because you cant hope to complete it in a reasonable time. If you act beyond your competence you will make mistakes and get into trouble. Similarly if you fall behind with your paperwork. Dont do it. Remember the Cab-rank rule. So long as you have the appropriate level of experience and seniority, you are under a duty to accept any brief and to represent any client irrespective of your own opinions about the client or his case. Protect your independence. You must never allow your absolute independence, integrity and freedom from external pressures to be compromised. That may mean, on occasions, that you must be prepared to stick to your guns, even if it means displeasing your client, or the court or a third party. At the same time, it goes without saying, you must avoid any appearance of bias or improper influence. Dont make irresponsible or unwarranted allegations. The Code of Conduct is very clear on this. You must not devise facts which will assist in advancing your clients case. You must not draft any document containing any statement of fact or contention which is not supported by the lay client or by your instructions. You must not put forward any contention which you do not consider to be properly arguable. In particular, and this is really important, you must not allege fraud unless you have clear instructions to make the allegation and you have before you reasonably credible material which establishes at least a prima facie case of fraud. Now another topic - Double booking. This means trying to be in two courts at once, or at one court in the morning and another in the afternoon when they are too far apart to manage it. Never double book. And never allow your clerk to double book you. Just say no. Preserve your clients confidentiality. In the course of your career at the Bar you will learn about your clients private and financial affairs and some surprising secrets, none of which you must ever divulge, without instructions. Avoid any conflict of interest. And note that where your duty to one client clashes with your duty to another client, as sometimes happens, you will almost certainly have to withdraw from the case. And finally avoid any dishonest or discreditable conduct, in both your private and professional life. And remember that if you are charged or convicted of certain criminal offences you may be under a duty to report the fact to the Bar Council or to the benchers of your Inn.
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In your private life you must uphold the dignity and integrity of the Bar. Never behave in a way which is unworthy of a barrister and never use your position as a barrister to gain unfair advantage. One last piece of advice. Professional conduct and ethical problems sometimes crop up unexpectedly and you sometimes have to make a difficult decision at short notice. If that happens, and you find yourself in a dilemma speak to someone. Share the problem. Speak to someone else in chambers. Speak to a more experience practitioner. If necessary telephone the Bar Council and ask for their advice. Dont hesitate to ask for help. You will find, I am sure, that people are only too willing to help. That brings me to the end of this introductory talk. You will be able to access the podcast throughout the year, so please do listen to it again, perhaps a few months into the course, to remind yourself of the important points covered. Good luck to you on the course. Its hard work, but I know you will enjoy it. Make friends, because lawyers make good friends, and make the most of your time at the College of Law. The reference for the case I mentioned, Medcalf and Mardell, is 2002, UK House of Lords 27; 2003 1 Appeal Cases, 120. The passage I quoted is at paragraphs 51 and 54.

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