22 February 2015
But surely there’s a provision else-
where dealing with a situation where a
learned friend takes a brief for a new cli-
ent and then discovers that he’s already
representing someone else who wants
precisely the opposite of what the new
client wants?
I wrote to the Bar Council asking:
“Can you please advise me whether the
Bar Council code of conduct precludes a
barrister taking a case where he or she
has a conflict of interest and, if not, why
not. Does the absence of such a provision
reflect on the integrity or intelligence of
the profession?”.
The Director of the Bar Council, Ciara
Murphy replied promptly:
“Your query was referred to the profes-
sional practices committee which deals
with such matters. Please find below the
section of the Code of Conduct relating
to conflict of interest.
2.14 Having regard to the antic-
ipated length and complexity of a
case and having regard to their other
professional commitments and the
provisions of this Code of Conduct
Barristers are bound to accept instruc-
tions in any case in the field in which
they profess to practice (having
regard to their experience and sen-
iority) subject to the Payment of a
proper professional fee. A Barrister
I
REMEMBER 25 years ago attend-
i n g a le c t u r e on e t h ic s f or ba r r i s te r s
in the King’s Inns (motto Nolumus
Mutari 1541 – ‘we don’t want to
be changed 1541’). An eminent
(though aren’t they all?) senior counsel
and ‘bencher’ (don’t ask!) was batting
for the Bar Council. A student asked why
a second-level teacher could not prac-
tise at the bar when a third-level teacher
could. “Oh, That’s easy”, senior counsel
intoned. “That’s because it’s always been
the way”.
That issue has now been fudged. The
2004 Code of Conduct for Barristers
provides that: “Barristers are excluded
from occupations which conflict with the
duties contained in the Code of Conduct”.
Forfend the devil-by-day, burger-flipper-
after-dark apocalypse.
And the Code also recognises conflicts
of interest. Though not for barristers:
“3.2 (a) If a Barrister forms the view
that a conflict of interest has arisen
between a client and the solicitor who
has instructed the Barrister on behalf
of that client, the Barrister must pro-
vide advice for the client stating the
nature of the Barrister’s concerns and
recommending that the client instruct
a different solicitor”.
This is code for: solicitors are the jun-
ior profession and it is important that our
learned friends have the Code-mandated
right to draw attention to any deviance
especially a conflict of interest. Why, such
a conflict might draw opprobrium on the
solicitor’s counsel!
Naturally it’s necessary then for the
Code to spell out what a conflict of inter-
est could involve: “For the purposes of
these rules cases involving a ‘conflict
of interest’ include but are not limited
to:
(i) any case where, by reason of any
act or omission of a Barrister’s
instructing Solicitor, in the view of
the Barrister, the Barrister’s client
may have suffered or may poten-
tially suffer any loss, damage or
detriment; and
(ii) any case where, to the knowledge of
a Barrister, the Barrister’s instruct-
ing solicitor has failed, within an
appropriate period, to comply
with the instructions of his client,
whether or not those instructions
conform with any advice of the
Barrister”.
So, a definition of conflict of interest,
in a Code for Barristers, that focuses on
conflicts of interest for solicitors.
2014 Code encourages learned
friends to identify conflicted
solicitors but gives them
discretion to act, even if new
client’s interest prejudiced.
By Michael Smith
Barristers’
Code allows
them to
act despite
conicts of
interest
NEWS BAR COUNCIL
February 2015 23
may be justified in refusing to accept
instructions where a conflict of inter-
est arises or is likely to arise or where
they possess relevant or confidential
information or where there are other
special circumstances.
It is important to appreciate that
conflict of interest covers numer-
ous potential issues and situations
and many questions of degree. It can
therefore require that difficult judg-
ments be made. It is extremely unwise
to generalise on the subject or to come
to conclusions about particular cases
without full information and careful
and objective analysis. This committee
advises barristers on such matters on a
regular basis, often following a query
or objection from a particular party
or witness, but can only do so with all
relevant information”.
Fine. A Barrister may refuse a brief
where s/he has a conflict of interest. But
it is not required. Any lawyer will tell you
this is providing for a right when what is
required is a duty. In 2015 self-regulated
barristers allow themselves to accept
instructions where they have a conflict
of interest.
The rule should be: “A Barrister
must not take a case where s/he has a
conflict of interest in circumstances
where it would a) be improper or b)
be prejudicial, unless all clients give
informed consent”.
The equivalent ‘handbook’ for barris-
ters and England and Wales outlines the
standard as you would expect:
C21 – You must not accept instruc-
tions to act in a particular matter if:
“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 mat-
ter unless all of the clients who have an
interest in the particular matter give
their informed consent to your acting
in such circumstances; or...”.
S u b se q u e n t l y, a s a n a f t e r t h o u g h t , a f u r -
ther email arrived from the Bar Council’s
Press Officer, Jeanne McDonagh. It cited
other provisions but of course could not
cite any reference to a preclusion on act-
ing ‘where s/he has a conflict of interest
in circumstances where it would a) be
improper or b) be prejudicial, unless all
clients give informed consent’.
She cited the following:
3.11 Barristers ought not to accept
instructions if they would be embar-
rassed in the discharge of their duties
because they have previously advised
on or drawn pleadings for another cli-
ent on the same matter or appeared
for another person who is or was
connected with the same matter, or
assisted another Barrister in the dis-
charge of such duties, as envisaged by
paragraph 7.6, or they are in posses-
sion of material information entrusted
to them by another client and it would
be prejudicial to that client’s interests
or there is any other good and sufficient
reason for not so acting and where they
have accepted such instructions they
should not continue to act.
3.12 Barristers may not accept
instructions in any case where by rea-
son of their connection with the client
or the subject matter it would be dif-
ficult for them 11 to maintain their
professional independence or where
such connection might reasonably give
rise to the perception on the part of a
Court before which they appear that
their professional independence is or
may be compromised in the discharge
of their duties as Barristers.
3.13 Barristers may not appear as
counsel:- (a) in any matter in which they
themselves are a party or have a sig-
nificant pecuniary interest; (b) either
for or against any Local Authority of
which they are a member, or (c) either
for or against any person, company,
firm or other organisation of which
they are an officer, director, partner,
engaged in part-time occupation or in
which they have directly or indirectly
a significant pecuniary interest.”
The further provisions refer (3.11) to
advising on pleadings etc but not to acting
generally as a barrister; (3.12)) to where
barristers risk compromising their pro-
fessional independence rather than the
interests of their new client and (3.13) to
the dangers of barristers acting for them-
selves or for others close to them.
There is nothing in the provisions
prohibiting a barrister advising a client
where the barrister has advised another
client in a way that conflicts with the
interest of the first client.
Unless you consider that “there is any
other good and sufficient reason for not
so acting” covers it. But that phrase begs
the question.
Why not make conflicts of interest that
are prejudicial etc an explicit head for a
prohibition on a barrister acting at all –
as the Code seeks to make it for a solicitor
and as it is made in analogous England
and Wales?
The whole thing points to how undem-
ocratic it is to allow in Ireland in 2015,
the self-regulation of any profession
including barristers (quite apart from the
constitutionality or even legality of it). •
A barrister
may be
justified
in refusing
to accept
instructions
where a
conflict of
interest arises
or is likely to
arise
“

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