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
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