Ethics in practice

However, the immunity in this particular case was not based on the usual barrister-client premise of the absence of a contract, but on public policy in that: (a) the administration of justice required that a barrister should be able to carry out his duty to the court fearlessly and independently; (b) actions for negligence against barristers would make the retrying of the original action inevitable and so prolong litigation and, (c) because a barrister was obliged to accept any client, however difficult, who sought his services.

Rondel v Worsley therefore set a precedent that applied to other cases that would follow.

Eleven years later in 1980, Lord Wilberforce reconsidered the scope of a barrister’s immunity in the House of Lords during the complex case of Saif Ali v Sidney Mitchell & Co. pointing out that: “…barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss”.

This theme was taken further still in the matter of Arthur J S Hall & Co. v Simons & others in 2002, where the House of Lords re-evaluated public policy issues introduced as part of the Courts and Legal Services Act 1990 and the Access to Justice Act 1999. Statutory regulation had established the question of whether the immunity was needed to ensure that barristers would respect their duty to the court.

In 1969, Rondel v Worsley had shown that the answer was that assertions of negligence would tend to erode this duty and accorded a special status to barristers. By 2002, a comparison with other professionals demonstrated that a barrister’s immunity was anomalous, and that even allowing for a civil action it was unlikely to produce a flood of claims.  Besides, the judges reasoned, even if some claims did emerge, a claimant alleging that poor advocacy resulted in an unfavourable outcome would face the very great difficulty of showing that a better standard of advocacy would have resulted in a more favourable outcome.

Unmeritorious and vexatious claims against barristers are simply struck out. Thus, it was no longer in the public interest that the immunity in favour of barristers should remain in either civil or criminal cases. This does not imply that Rondel v Worsley was wrongly decided; but in today's world, that decision simply no longer correctly reflects public policy. The basis of the immunity of barristers has gone, and exactly the same reasoning is applied to solicitor advocates.

Following the ruling in Arthur J S Hall & Co. v Simons and others, a barrister can now be sued for negligent conduct of a case in court, and also for negligent preparation at the pre-trial stage as well. While this is most definitely a step in the right direction, there continues to be demands from outside the legal profession that it should be stripped of all powers of self-regulation, that the profession share the burden of self-regulation with other professions, or, that there should be other adjustments to the existing system.

No doubt with similar thoughts running through his mind, a worried Stephen Hocking QC, Chairman of the Bar 2006, addressing members of the Bar explained new figures which highlight the trend towards a massive rise in the numbers of barristers who are digressing from the Bar Council Code of Conduct: “…there are more than 14,000 practicing barristers in England and Wales, of whom over 11,500 practice from Chambers as self-employed advocates and specialist advisors.

“The number of barristers disbarred during the five years 1984-1988 was just fifteen. Of these, five were disbarred for incompetence, six for criminal convictions (other than fraud), while the remaining four barristers were disbarred for ‘other reasons’. However, the Bar Council Complaints Disciplinary Findings lists a total of twelve barristers who have already been disbarred this year” (up to and including 2 November 2006).

While these figures are never the less alarming, the number of disbarred barristers does actually compare somewhat favourably with those for solicitors struck-off during the same period: 18 in 1984, 22 in 1985, 20 in 1986, 32 in 1987 and 29 in 1988. That number has risen to 63 solicitors struck-off in 2006. Of course, it must always be borne in mind that there are significantly more solicitors practicing in England and Wales than barristers (126,142 Solicitors [of whom, 100,938 had a practising certificate] as opposed to just 14,000 barristers).

Reasons given by The Law Society for solicitors being struck-off vary from ‘dishonestly misappropriating client’s money’, to ‘failure to discharge their professional duties honestly and reliably’. Figures for Bar Council disciplinary hearings are only available as far back as 1999, when 469 complaints from the public against barristers were heard. Figures remained comparable in 2000, and 2001 with 450 and 464 complaints respectively. Then in 2002, the number of complaints nearly doubled to 743, with only a slight drop to 685 in 2003, and 667 in 2004.

There was another huge rise in 2005, to an all-time high of 877 complaints made against barristers. This prompted Independent Complaints Commissioner, Michael Scott to address the matter in his 2005 Annual Report to the Bar Council, as: “…reflecting barristers’ seemingly inadequate personal administration by failing to complete the required Continuing Professional Development hours, or to acquire a Practising Certificate. A 10% rise in lay complaints is unusual, compared with the plateau of previous years”; he went on to point out that: “Of the responses received, only 16.5% of sole practitioners had a formal written complaints procedure. There is evidence to suggest that consideration should be given to the development of a separate approach to complaints handling by sole practitioners”.

This would indicate an enormous increase in the number of barristers who are either: (a) operating outside the rules of the Code of Conduct or, (b) being discovered more frequently and brought before Bar Council disciplinary hearings. Regardless of which is the more accurate representation, the truth of the matter is that over the last 20 years the number of barristers who have been exposed, interrogated and punished for divergences from the Bar Council Code of Conduct has shown a huge increase, while the numbers of practicing barristers has remained relatively constant during this period.

What could possibly have been happening? Are large numbers of barristers and solicitors suddenly losing sight of their ethical duties? Or could it be perhaps that the careful balance between morals and principles on the one hand, and the temptations of the real world on the other have finally found some parity in the minds of those whom in the past we have always trusted to be beyond such inducements?

With that in mind, I have chosen a couple of relatively recent cases resulting in the disbarment of a barrister as examples of the kind of rule-breaking that evidently takes place all too frequently: Case No.1 is that of Michael Richard Stannard, a barrister from Middle Temple called to the Bar in July 1973.

In December 2003, Mr Stannard was disbarred at a Bar Council Disciplinary Tribunal when he was found in breach of Paragraph 201(a)(i) of the Code of Conduct – “…a barrister practises as a barrister if he supplies legal services, and in connection with the supply of such services he holds himself out or allows to be held out as a barrister”.

It transpired that Mr Stannard had engaged in dishonest conduct having been convicted of cheating the public revenue by reason of his involvement in a company tax avoidance scheme. He was sentenced to four and a half years imprisonment, with both his conviction and appeal being dismissed.

At the Court of Appeal (R v Michael Richard Stannard (2005) WL 2802338) before Lord Justice Pill, Mr Justice David Steel and Mr Justice Pitchford on 1 November 2005, it was held that the trial judge (His Honour Judge Fingret), had correctly found Stannard to have a controlling interest in two companies which operated a purchase scheme whereby one company with unpaid corporation tax liability (but in possession of the funds to meet that liability) was targeted for acquisition by the other company.

Steps were then taken to reduce the tax liability of the first company by false debenture documents which purported to show that substantial sums had been subscribed for and the interest on them paid in advance. By extinguishing or reducing the corporation tax liability, any purchaser of that company would obtain a significant financial advantage.

The scheme, which had been entirely devised by Stannard, and totally under his control, operated between 1 January 1993 and 31 October 1997, and claimed a deduction against profits for interest paid in advance (including the debenture interest) from one company to the other, when in truth no such transactions had taken place. The net result of all this dealing was that Stannard obtained a benefit for himself of £3,099,030 as a result of cheating the public revenue.

Mr Stannard was sent to prison for four and a half years on 9 February 2001, and his estate stripped of what assets could be recovered. However, the Bar Council, acting upon its own archaic rules did not choose to immediately disbar him. While it is true that it could be an awkward hindrance to a practising barrister to be detained at Her Majesty’s pleasure, Mr Stannard was not actually disbarred until he had been released and only then after a disciplinary tribunal had convened.

It would be hard, even for the most biased observer, to apply any of the theoretical ideas of Deontology to the actions of Michael Richard Stannard. There was no consideration whatsoever for his duties and the rights of others in his actions, indeed, the only ‘maximisation of good’ in the mind of Mr Stannard was that of his own bank balance. Gone was any hint of his obligation to do the right thing, and tell the truth as a matter of duty.

And yet, this was a man who, since 1973, had performed his duties as a barrister without blemish. For twenty years, Stannard acted wholly within the boundaries of his morals and principles upholding an ethical duty to the public, the Bar and the court. What could possibly change a man so dramatically that even when in court and his ill-gotten gains fully discovered, he still tried to lie his way out of his obligations by denying that certain assets (a Cessna aircraft, a house in Godalming, a flat in Switzerland and various benefits from an offshore trust) were actually his own?

Case No. 2 is that of John Paul Temple, called to the Bar in July 1998. Mr Temple was disbarred following a Bar Council Disciplinary Tribunal on 12 April 2006, for being in breach of Paragraph 301(a)(i) and Paragraph 901 [professional misconduct] of the Code of Conduct. It transpired that Temple, who had taken up the law after his police career had ended when he had been beaten up by car thieves, had been downloading vast amounts of child pornography over a period of time, some of it featuring girls as young as ten months old.

When police examined Temple’s computer following a raid at his home, they discovered 3,769 images, most of which had been viewed several times; and while some two-thirds of the collection was deemed to be of the least serious type of paedophiliac image, some 382 were of the most serious type. Temple had then distributed 491 such images to other members of a 1,300-strong paedophile ring.

Appearing on 5 January 2005, before Mr Justice Henry Globe at Liverpool Crown Court on 34 counts of possessing and distributing child pornography, prosecution barrister Damian Nolan said that Temple: “…knew it was a crime, but did not give it any thought”. Temple, who is a married man and has four children of his own, explained that he had suffered serious head injuries as a result of his encounter with the car thieves in 1992, and been forced to retire from Northumbria Police. Temple was described in court as having been “…a diligent and hard-working police officer and barrister, who showed enormous effort and obvious pride in his work”.

Defence barrister Robert Woodcock described Temple as a “ruined man”, adding “…every career that this man has pursued is in tatters”. Detective Sergeant Keith Gilfillan of Durham Police’s Vulnerability Unit said outside court: “With his experience as a police officer and a barrister, Temple may have thought that he knew enough not to be caught and could make himself above the law”. John Paul Temple received concurrent sentences of two years for possession of specific indecent images of children, two years and eight months for distributing indecent images, and two years for possession of a further 3,753 indecent images.

Most normal, decent people find the actions of paedophiles utterly repugnant at the best of times. They would be incredulous to discover that a barrister should have such tendencies, and one can only begin to imagine the kind of treatment that Mr Temple would receive in prison from his fellow inmates, especially those with children, when they discovered he was a barrister and a former police office making and distributing indecent photographs of children.

Yet these transgressions are by no means isolated incidents, as the example of Case No. 3 demonstrates. Rupert John Massey was a barrister called to the Bar in July 1972. He was disbarred following a Bar Council Disciplinary Tribunal on 19 January 2006, for being in breach of Paragraph 901 of the Code of Conduct.

Mr Massey had a long history of conduct unbecoming to a barrister: between 1971 and 1978, he engaged in various activities with other males resulting in his conviction before the Crown Court in Wolverhampton on 7 December 1999, for 13 offences of Indecent Assault on a male. He was also convicted at the same time for an additional three offences of Indecent Assault on another male between 1981 and 1983.

One could argue that the findings in Case No. 1 were nothing more than the age-old human struggle between temptation and greed. Richard Stannard, despite his past, his principles, his morals and ethics, simply saw an opportunity for huge financial gain and succumbed to the lure of millions of pounds. It is true that he cast off his ethical principles in the process, but this is somehow forgivable because any of us, given the same set of circumstances and the promise of untold riches, might also be tempted in the same way – it was a nothing more than a weakness of human nature.

However, there is no place in ethics for paedophilia or indecent assault, so where is the reasoning for John Temple and Rupert Massey? Temple and Massey did nothing to consider the rights of others, much less the oath they had taken when called to the Bar.

If we apply a Kantian view to their actions, the dichotomy of reason and morality becomes all the more apparent: both ignored the ‘Categorical Imperative’, the fundamental demand which Immanuel Kant said determines the choice of principles on which to act, and replaced it with the ‘Hypothetical Imperative’, which only has force if we have certain desires and inclinations, and then act upon those instead. Their personal needs took precedent over the underlying deontological test on which we are all supposed to act i.e. according to whether they be universal laws (such as the Bar Council Code of Conduct for example), or the laws of nature.

Therefore, it would seem that the simple process of acting according to one’s own definition or interpretation of duty, or, indeed, even the simple determination of what is right and what is wrong can be more of an issue for a barrister than at first it may seem. Bringing about a universal good, rather than achieving virtue or enjoyable consequences for others, is resolved not through any highbrow sense of morality, nor is it engrained within the hallowed words of the Bar Council Code of Conduct.

Instead, the decision seems to lie wholly within the set of circumstances in which the individual finds themselves at that precise instant in time – regardless of who that individual may be and whichever code they ought to be following. It is therefore from moment to moment, and the effect of those momentary circumstances upon the individual which determines whether they decide to treat humanity as a means to an end, or an end to a means.

But hang on a moment. Surely, this is precisely what each and every one of ‘us’ – the lay people in society – has to do everyday of our lives? If this is the case, then the concept that solicitors, and in particular barristers, are personages somehow morally raised above the masses, diminishes enormously. The evidence of Stannard, Temple and Massey would seem to indicate that they are no more moral – from an ethical perspective – than the rest of us. So why do we continue to perceive barristers as being permanently on a higher ethical pedestal?

Well, of course the answer is thankfully a relatively simple one. The vast majority of solicitors and barristers, whom, we must remember are, in principle, still immune from punishment for professional negligence, mercifully do not act outside their moral and ethical principles on a regular basis. The examples I have highlighted represent less than one percent of one percent of those called to the Bar, and cases like these are happily quite rare.

However, this is notwithstanding that such incidents are on the rise – and quite dramatically so – simple mathematics demonstrates that for every ten solicitors there is one practising barrister; in 2006, one solicitor in two thousand has already been struck-off (0.05%), whereas one barrister in eleven hundred has been disbarred (0.085%) – a significantly higher ratio.

Nonetheless, the basic framework of ethical understanding which we all adopt (or at least try to) in our daily lives, is undoubtedly raised to a higher plane for those who are members of The Law Society and called to the Bar. It is for that reason that when we need them we still put our trust in solicitors and barristers, for they represent not only a channel through which the law may be understood and utilised, but they also exemplify the ethical and moral high-ground which we might all one day strive to attain.

Conclusion

At the present time, it is rather hard to draw any firm conclusions as to where all this interest in the future of the self-regulation of solicitors and barristers is heading – not least of which because so little of the suggested amendments to the current regulations have yet to become law. Literally millions of words have been penned in an attempt to clarify not only the current position with regard to the Law Society and the Bar Council (including both bodies having re-written [but not yet implementing] their own codes of conduct in the last three years), but that which the Government would like to adopt should it be necessary to embody regulations of this nature within statute, at some point in the future.

In October 2005, the latest in a long line of attempts at amending the way that the Government wants the regulation and delivery of legal services was published. In it, Lord Falconer, Secretary of State for Constitutional Affairs & Lord Chancellor, stated: “Consumers need, and deserve, legal services that are efficient, effective, and economic. They want to have choice, and they want to have confidence in a transparent and accountable industry. Legal services are crucial to people’s ability to access justice. They must therefore be regulated and made available in such a way as to meet the needs of the public – individuals, families and businesses. The professional competence of lawyers is not in doubt. The calibre of many of our legal professionals is among the best in the world. But despite this, too many consumers are finding that they are not receiving a good or a fair deal”.

The Lord Chancellor could be forgiven for somewhat glossing over the undoubted abilities of the vast majority of legal professionals in the United Kingdom, and praising them in the way that he does. Yet, he touches on the crux of the problem when he says that too many consumers are finding that they are not receiving a fair deal. It is these very cases, which, I agree, are isolated, that still tend to spoil the barrel of apples for the rest of the legal profession.

I would argue that if we are ever to have a completely transparent, efficient and economic legal services system – one which could be purged as much as possible of the minority rogue element that has crept into it in recent years – then it needs to be governed through a recognised, accepted but wholly independent body. This body would have to be engendered with enough power to investigate, punish and where applicable review procedure in order to maintain a completely impartial approach. At the same time however, power would need to be limited so that the new body could not simply develop into a metamorphosis of the old self-regulating bodies, and therefore become susceptible to inside (and indeed, outside) influence.

Such an idea is already engrained as part of a much wider series of proposals which were outlined in the ‘Review of the Regulatory Framework for Legal Services in England and Wales’, Final Report from Sir David Clementi, in December 2004 (usually referred to simply as ‘The Clementi Report’). In it, Sir David remarks: “A Recognised Body (RB) would apply to a Legal Services Board (LSB) for authorisation to regulate Legal Disciplinary Practices (LDP) in specific legal service areas. The LDP would need to demonstrate to the LSB that it has: (a) competence in the areas of LDP work to be regulated; and (b) satisfactory governance and administrative arrangements. 

“Alternatively, a prospective LDP would apply for a licence to be regulated by an RB who in turn would need to be satisfied that (a) the specified legal service area proposed by the applicant falls within the terms of the authorisation granted by the LSB to the RB; and (b) that the applicant meets the relevant safeguard tests”.

These simple alternatives could provide the framework upon which the next generation of legal services are based, and there is every possibility that this Government will insist that they be implemented before its current term of office expires in 2009/2010.

However, regardless of the merits of the various ideas and proposals – and they are legion – all of this still needs to be administered by people in authority whose ethical ideology must be, as a matter of course, beyond question.

Therefore, the question for the future must surely be: Where will the persons whose ethics are beyond question come from? If we couldn’t find them already behind the hallowed doors of The Law Society and the Bar Council, from whence will them come?

                

                                                                                (5,270 words)

References:

Roxburgh, R.F.: ‘Rondel v Worsley: Immunity from the Bar’, Law Quarterly Review, Vol.84, p513 (1968)

Verkaik, Robert (2000) ‘Barrister is warned over advice to father’ The Independent, Wednesday, 26 April 2000 p4

Verkaik, Robert (2000) ‘Barrister disbarred for eavesdropping on solicitor’ The Independent, Friday, 3 November 2000 p9

University of Bristol, Department of Philosophy ‘Ethics – (c) Kantianism’ [Online] Available at  (Accessed 25 October 2006)

‘Tax cheat barrister loses gaol appeal’, Government News Network, 18 February 2002 [Online] Available at  Accessed 29 October 2006

UnjustIS: Barristers and Solicitors [Online] Available at  (Accessed 27 October 2006)

Bar Council Complaints Disciplinary Findings (searched by ‘sentence’ and ‘disbarred’) up to and including 2 November 2006 [Online] Available at  (Accessed 17 November 2006)

Bar Council Complaints Disciplinary Findings: Michael Richard Stannard, Disciplinary Tribunal Date of Decision 4 December 2003 [Online] Available at   (Accessed 18 November 2006)

Nicholas Bennett MP – Attorney General, Sir Patrick Mayhew: House of Commons, Hansard Debates for 10 July 1989 [Online] Available at  (Accessed 11 November 2006)

‘Notes on Deontology’, Professor Charles D. Kay, Department of Philosophy, Wotton College, Spartanburg, South Carolina USA [Online] Available at  (Accessed 26 October 2006)

Annual Report of Michael Scott, Bar Council Complaints Commissioner ‘…shows another fall in complaints against barristers: 29 March 2004’ [Online] Available at  (Accessed on 19 November 2006)

About the Bar – Foreword by the Chairman of the Bar 2006, Stephen Hockman QC [Online] Available at  (Accessed 18 November 2006)

Blake Lapthorn Linnell Professional Regulatory Update, February 2006: ‘Stannard v General Council of the Bar 30 January 2006 [Online] Available at  (Accessed 11 November 2006)

Glossary of Terms: ‘Categorical Imperative’, The Blackwell Companion to Philosophy [Online] Available at  (Accessed 21 November 2006)

‘Barrister jailed for child porn collection’, The Northern Echo Online, 19 May 2005 [Online] Available at  (Accessed 17 November 2006)

Bibliography:

Locke, J.: ‘An Essay Concerning Human Understanding’, (A & J Churchill, 1689)

Kant, I.: ‘Groundwork for the Metaphysics of Morals’ (Grundlegung zur Metaphysik Der Sitten, 1785)

Rawls, J.: ‘A Theory of Justice’, (Belknap Press of Harvard University, 1971)

Nozick, R.: ‘Anarchy, State, and Utopia’, (Basic Books, 1974)

Denning, Lord A. T. W.: ‘The Discipline of Law’, (Butterworths, 1979)

Luban, R: ‘Good Lawyer: Lawyer’s Roles and Lawyer’s Ethics’, (Rowman & Littlefield, 1984)

Susskind, R: ‘The Future of Law: Facing the Challenges of Information Technology’, (Oxford University Press, 1998)

Boon, A; Levin, J: ‘The Ethics and Conduct of Lawyers in England and Wales’, (Hart Publishing, 1999)

O’Dair, R: ‘Legal Ethics – Text and Materials’, (Butterworths [Reed Elsevier], 2001)

Slapper, G; Kelly, D: ‘The English Legal System’, 7th Edition (Cavendish, 2004)

Keenan, D: ‘Smith & Kennan’s English Law’, 14th Edition (Pearson Longman, 2004)

Daicoff, S.S: ‘Lawyer, Know Thyself: A Psychological Analysis of Personality Strengths and Weaknesses’, (American Psychological Association, 2004)

Bar Council Annexe Q – The Code of Conduct for Lawyers in the European Community (8th Edition), 31 October 2004

Bar Council: Annual Report of the Complaints Commissioner 2004

Bar Council: Annual Report of the Complaints Commissioner 2005

Annexes to the Annual Report of the Complaints Commissioner 2005

The Law Society: Trends in the solicitor’s profession – Annual statistical report 2005

Crown Prosecution Service – Guidance for: Complaints against Solicitors and Barristers, 31 August 2005

The Royal Commission on Legal Services, 1979

Review of the Regulatory Framework for Legal Services in England and Wales, December 2004 (The Clementi Report)

The Secretary of State for Constitutional Affairs and Lord Chancellor, Lord Falconer of Thoroton Presentation to Parliament on: ‘The Future of Legal Services: Putting Consumers First’ [2005] Report (Cm.6679), London (TSO, October 2005)

The Solicitors Disciplinary Tribunal Annual Report 2006

Courts and Legal Services Act 1990 (1990, c.41)

Access to Justice Act 1999 (1999, c.22)

Marrinan v Vibart [1963] 1 QB 528

Rondel v Worsley [1969] 1 AC 191

Re S (A Barrister) [1970] 1 QB 160

Saif Ali v Sidney Mitchell & Co. [1980] AC 198

Re S (A Barrister) [1981] QB 683

Arthur J S Hall & Co v Simons & Others [2002] 1 AC 615

Attorney General v Akeno Adoko (2004) WL 1174203

R v Michael Richard Stannard (2005) WL 2802338

P (A Barrister) v General Council of the Bar Council [2005] 1 WLR 3019

The Bar Directory

The Bar of England and Wales

The General Council of the Bar

The Barrister – The Independent Magazine for Legal Professionals

The Lawyer – The weekly newspaper for UK Lawyers

The United Kingdom Parliament Hansard Debates

Law Quarterly Review

Unjustis

Factiva

Lawtel

LexisNexis

WestlawUK

---