The nature of the Code
The barrister Code of Conduct provides with the rules and standards that should inform all the aspects of a practice at the employed bar as well as applying to self-employed barristers. All practicing barristers are subject to the provisions of the Code and should carry out their duties in the manner prescribed within.
It is important to emphasise that the Code is very different in nature from a statute or any other piece of legislation. It differs because it does not prohibit certain actions and then makes them punishable but the Code establishes guidelines for the appropriate performance of the profession.
Further, the Code is not subject to strict rules of interpretation as other legislations. The process of interpreting the provisions should be informed by ethical values. In addition, where the Code permits a variety of responses, the choice between those options should be made in accordance with the person’s inner morality.
The importance of the Code of Conduct
The importance of compliance with the provisions of the Code are emphasised through their impact on the reputation of the profession. Ignoring the provisions not only affects the individual’s reputation and career but it can have far-reaching implications to the established trust in the profession as a whole.
Therefore in practice, the Code is one of the most important texts to comprehend and then apply throughout the career at the Bar.
The essence of the Code
The Code is central to every barrister’s practice providing ethical guidance to the exercise of the profession. Looking at the provisions as a whole, a number of underpinning values could be identified throughout the Code. Those include the achievement of justice, establishment of respect of law and procedure, safeguarding the client’s autonomy and providing for confidentiality and honesty.
The current version of the Code was prepared by the Bar Council and adopted in 2004.
The provision itself is divided into eleven parts dealing with all the matters of importance to a career as a barrister.
Considering the Code itself, Part I deals with preliminary issues such as the enforcement of the Code and rules regarding amendments. Further, it establishes the general purpose of the Code as the provision for rules and standards of conduct applicable to barristers which are appropriate in the interests of justice.
Part II contains the practicing requirements a barrister needs to comply with in terms of right of audience and supply of legal services to the public.
Part III establishes the fundamental principles applicable to all practicing barristers. Those clarify that the overriding duty of a barrister lies with the court, which in turn requires him not to deceive or knowingly mislead the court in the administration of justice.
Part IV and V deal respectively with self-employed and employed barristers in terms the receipt of instructions, fees and remuneration.
Part VI builds up one the previous two Parts and is concerned with acceptance of instructions. The part contains the ‘cab-rank rule’ establishing that a barrister must accept any instructions appropriate in his field. Further this is done irrespective of the nature of finance of the trial by the client and whether it is public or private. It contains instruction regarding acceptance of cases in unfamiliar practice areas and when a conflict of interest between the barrister and the client may arise.
Further, it deals with return of instructions when continuing to act on a case would cause the barrister to be professionally embarrassed.
Part VII lays down the framework regarding the conduct of work in terms of confidentiality duties, drafting documents, conduct with witnesses and conduct in court. It establishes that a barrister need always be courteous in court and to his clients. Further, he should not devise facts to assist his lay client’s case nor is allowed to rehearse, practice or coach a witness prior his appearance at court.
The main framework of the Code is established in Parts I-VII. The remainder of the Code deals with provisions regarding pupils, pupil-supervisors, definitions of the essential terms in the Code. Finally, Part XI deals with specific transitional provisions.
Failing to comply with the provisions of the Code
A failure to act in accordance with the guidance provided could result in a suit for professional misconduct. Following such proceedings instigated against a barrister if he is found to have acted contrary to the professional Code, then he may be subject to the discretion of a Disciplinary Tribunal.
If a finding of breach is established but the breach is not serious, he could be given a written warning or in some cases fined. It is important to note that a written warning or a fine does not amount to a finding of professional misconduct.
If there have been a number of failures to comply over a period of time, then a further breach will automatically constitute professional misconduct even if the failure on its own would not be sufficient to amount to such misconduct.
All findings of professional misconduct are published on the Bar Standards Board website and also by the Inns of Court.