Barristers’ Code allows them to act despite conflicts of interest.

By Michael Smith.

I remember 25 years ago attending a lecture on ethics for barristers 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 practise 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 provide 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 junior 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 interest could involve: “For the purposes of these rules cases involving a ‘conflict of interest’ include but are not limited to:

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 potentially suffer any loss, damage or detriment; and

any case where, to the knowledge of a Barrister, the Barrister’s instructing 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.

But surely there’s a provision elsewhere dealing with a situation where a learned friend takes a brief for a new client 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 professional 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 anticipated 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 instructions in any case in the field in which they profess to practice (having regard to their experience and seniority) subject to the Payment of a proper professional fee. A Barrister may be justified in refusing to accept instructions where a conflict of interest 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 numerous potential issues and situations and many questions of degree. It can therefore require that difficult judgments 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 barristers and England and Wales outlines the standard as you would expect:

“C21 – You must not accept instructions 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 matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or…”.

Subsequently, as an afterthought, a further 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 acting ‘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 embarrassed in the discharge of their duties because they have previously advised on or drawn pleadings for another client on the same matter or appeared for another person who is or was connected with the same matter, or assisted another Barrister in the discharge of such duties, as envisaged by paragraph 7.6, or they are in possession 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 reason of their connection with the client or the subject matter it would be difficult 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 significant 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 professional independence rather than the interests of their new client and (3.13) to the dangers of barristers acting for themselves 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 undemocratic 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). •