Question the process of becoming a barrister is

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Question 3 “But every barrister has a duty to be honest, has a duty to comply with the rules of her profession, and has a duty to the court. These three overlapping set of duties (which I shall refer to as “ethical duties”), very importantly, override the barrister’s duty to her client. Given these ethical duties, a barrister’s duty and desire to do the best she can for her client will inevitably give rise to conflicts. And these conflicts will often be especially acute for an advocate, because she works under the pressure of the cut and thrust of litigation, with its tense adversarial atmosphere and its frequent requirement for almost split-second decision-making, and also because the duty to the court is particularly important in the context in which they work.” ‘The Lord Slynn Memorial Lecture 2016′, Lord Neuberger. Explain and discuss the above with reference to the Bar Standards Board Code of Conduct and the ethical dilemmas faced by barristers.  Introduction Since 15th century, barristers have been split up into two professions in United Kingdom, Barristers and Barristers. Barristers have traditionally been the people who research cases, deal with clients directly, and Barristers have had the rights of advocate in courts. Hence, Barristers’ ethical duties are very important to the court and the client, and this is an essay to discuss the duties to the court, clients and conflicts in between.The barristers are barristers who have been admitted to “plead at the bar.” Meaning that they have been called to the bar and completed a year pupillage in a chamber, where the trainee benefits from association and attendance at court with an experienced barrister, also it allowed to appear in court to argue a client’s case. Although the process of becoming a barrister is very demanding, but the outcomes are much superior as oppose to a barrister. Only barristers can become judges in the higher courts. Barristers, usually, do not have to go through as much paper work as barristers. Nevertheless, barristers are not allowed to open their own law firms and are obliged to proactive on their own account, whereas barristers are not. Based on these facts, people have got different expectations from Barristers too. Ethical DutiesIt is very important for professionals to maintain their ethical duties, especially for barristers who involve conflict between the administration of justice,  the client, the public and the court. We could solve these ethical dilemmas by analyzing their duties. A good criterion is that the barrister should not take the case if he cannot carry out a duty without breaching another.The duty to the client is dominant, as a barrister who involves to work for clients, they have to concern and fight for client’s best interests. However, it does not mean that barrister can serve those interests for all costs. Professional regulation has increased focus on the professional regulation of barristers. Even though the courts retain constitutional rights to regulate the conduct of those whose profession it is to appear before them, the day-to-day business of regulation has in recent times been undertaken by the governing bodies of barristers – the Barristers Regulation Authority (SRA) and the Bar Standards Board.Duties to the CourtThere are some uncontentious observations about the Barrister’s duty to the court. According to the Bar Code of Conduct, the barrister’s duty to the court is paramount, it is acknowledged that there may be situations in which this duty is discrepant with the barrister’s duty to their client. According to Bar Code of conduct handbook rule C4 and C5, duty to the court does not require barrister to act in breach of their duty to keep the affairs of each client confidential, do not mislead the court, and duty to act in the best interests of each client is subject to their duty to the court. Similar to our duty not to mislead the court on evidential matters, a barrister cannot misstate the law. Barristers are under a positive duty to make full disclosure of all the binding authorities relevant to a case. This means that all such authorities must be brought before the court, whether they support or sabotage the position being argued by that party, even if opposing counsel has not acknowledged such authority. This element of the duty includes drawing judges’ attention to any legal errors, so that they can be corrected. This duty should not be misinterpreted as requiring the barrister to present a impartial account of the law. As the matter of fact, barristers are obliged to identify those authorities which do not support their client’s position. Hence, while a barrister does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court. This responsibility applies to contested and uncontested cases.Duties to the clientAccording to Barrister code of conduct handbook rule C15, barrister must promote fearlessly and by all proper and lawful means the client’s best interests, and must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which the client gives informed consent. Emphatic commentaries on the fiduciary duty are found in Tyrrell v Bank of London in the judgment of Lord Westbury said “… there is no relation known to Society, of the duties of which it is more incumbent upon a Court of justice strictly to require a faithful and honourable observance, than the relation between barrister and client.” We may start the exploration of conflict of interest in acting for a former client by referring to a case in 1912, Rakusen v Ellis Munday & Clarke 74. This case includes three primary features are, There is no rule that a barrister cannot act against a former consumer, The Court can restrain a barrister  through injunction from performing in opposition to a former customer, The Court may accept undertakings from barristers that they will not disclose confidential information. In point of fact is the company sought to be constrained was a two partners in impact ran separate practices. One of the partners had acted for the plaintiff in an unfair dismissal action and had obtained exclusive information relating to the issue.The plaintiff then changed barristers and during the course of the proceedings the other partner was appointed to act for the employer company. The plaintiff then sought an injunction restraining the company from appearing against him. The barrister who had acted for the plaintiff undertook not to disclose any information concerning the former consumer to his partner and the name of his individual partner was substituted for the name of the company as the barrister on the record. While each of the judges formulated a slightly different test the leading judgment of Cozens-Hardy MR said”… We must treat each of these cases, not as a matter of form, not as a matter to be decided on the mere proof of a former acting for a client, but as a matter of substance, before we allow the special jurisdiction over barristers to be invoked, we must be satisfied that real mischief and real prejudice will in all human probability result if the barrister is allowed to act.” In the same case, Buckley LJ said of the application to restrain the barristers from acting”… The whole basis of the jurisdiction to grant the injunction is that there exists, or I will add, may exist, or may be reasonably anticipated to exist, a danger of breach of that which is a duty, an enforceable duty namely the duty not to communicate confidential information; but directly the existence or possible existence of any such danger is negative, the whole basis and sub-structure of the possibility of injunction is gone.” Fletcher Moulton LJ expressed in different point of view “As a general rule the Court will not interfere unless there be a case where mischief is rightly anticipated. I do not say that it is necessary to prove that there will be mischief, because that is a thing which you cannot prove, but where there is such a probability of mischief that the Court feels that, in its duty of holding the balance between the high standard of behaviour which it requires of its officers and the practical necessities of life, it ought to interfere and say that a barrister shall not act.” It was a great commentary on the various tests and few subsequent cases have followed the strict test of Cozens-Hardy MR, the theory has been the English approach over the years. Conflict of interest, Disclosure and ConfidentialityBarristers have a conflict of interest when they are attempting to serve two or more parties. A conflict of interest is kind of conflict of duties, or conflict between interests. When they have a conflict of interest involves breaching their duty to their recent or previous client, this is the foundation of the conflict of interest problem, and it pressured in many of the cases dealing with conflict of interest. There are four key points of the fiduciary duty: duty of confidentiality, duty not to put their own or other people’s interests before their own client, duty not to misuse client’s money, and competent standard of work.A 1973 case has highlighted the problem of conflict of interest in terms of the knowledge to discharge the duty owed to two clients whose interests are different, or the duty of confidentiality owed to each client and the duty of disclosure. Barrister’s responsibility is to maintain the confidentiality of a client’s affairs protected by legal professional privilege, and is a duty inbuilt in the relationship of barrister and client. It is important in pressuring the duty of confidentiality applies not only to information that legal professional privilege attaches but is much far reaching, being an essential feature of the duty. A recent case have approached the issue more confining than the approach adopted in Rakusen accomplished in the landmark decision handed down by the House of Lords in the Prince Jefri Bolkiah v KPMG (A Firm). The decision puts the issues of misuse of confidential information. In discussing the foundation of the jurisdiction, Lord Millett said:”In Rakusen’s case the Court of Appeal founded the jurisdiction on the right of the former client to the protection of his confidential information. This was challenged by counsel for Prince Jefri, who contended for an absolute rule, such as that adopted in the United States, which precludes a barrister or his firm altogether from acting for a client with an interest adverse to that of the former client in the same or a connected matter. In the course of argument, however, he modified his position, accepting that there was no ground on which the Court could properly intervene unless two conditions were satisfied: (i) that the barrister was in possession of information which was confidential to the former client and (ii) that such information was or might be relevant to the matter on which he was instructed by the second client. This makes the possession of relevant confidential information the test of what is comprehended with the expression “the same or a connected matter”. On this footing the Court’s intervention is founded not on the avoidance of any perception of possible impropriety but on the protection of confidential information … I would affirm this is the basis of the Court’s jurisdiction to intervene on behalf of a former client.”Conclusion A barrister’s duty to the court touches upon most aspect of his or her practice. Beyond the most obvious cases, determining when duties to the client are secondary to those owed to the court may not always be very clear.  The goal of this paper was not only to demonstrate the difficulties that barrister may face when duties conflict, but also given the assorted situations and stresses by the profession nowadays, there is doubt that new and challenging problems will come across.  Hope barristers will be well-prepared to address them equipped with a complete understanding of their duty to the court and to the client. In sharing cases of barristers who have not respected the duty to the court and to the client, we simply adding to the list of commentators disappointed at a lack of professionalism.  Nevertheless, the duties discussed are, fundamental to the privilege of continuing as an independent and self-regulated profession.  In final, while there are those who may disagree with the approach to the duty to the court and to the client, the interplay of duties, conflicts and professionalism arguably define the barrister’s role in the administration of justice and in serving the public interest.

Categories: Professions


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