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Wednesday, 3 April 2013

Independent Bar an endangered species?

A significant debate seems to be occurring in the UK at the moment, though from 12,000 miles away it's hard to quite know what it's all really about or how it might finish, and whether it might have any effect here in Australia.

But, if the concerns are legitimate — and there are enough informed participants who say they are concerned to suggest there's merit to that concern — then the independent Bar might be about to disappear from the UK legal landscape

What's so important about an independent Bar?


When I went looking for a nice pithy explanation of this, I struggled to find one from all the places you'd expect to find one. Lots of Bars from across the Commonwealth explain what barristers do, and how they do it, and how they operate, but there aren't very many descriptions of why an independent Bar is a good thing.

The main reason is that the independent Bar is independent, and subject to the cab-rank rule. The two are related and depend on each other. An advocate is supposed to fearlessly protect their client's interests, even to the advocate's detriment, so long as they don't breach their overriding duty to the Court.

And lest barristers chose to only represent the easier and more pleasant client, they are obliged to provide that independent representation for any brief offered in their area of practise at their usual fee if they are free.

At his swearing in, at (1952) 85 CLR xi, Dixon CJ said about the independence of the Bar:

But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

Ysiah Ross in Ethics in law cites Erskine, quoted by Lord Pearce in Rondel v Worsley [1969] 1 AC 191 at 275:

From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arrainged in the court where he daily sits to practise, from that moment the liberties of England are at an end.

And at 227, Lord Reid said:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.

The cab-rank rule is intended to protect the independence required of the Bar, removing the need to justify or defend representing what might seem apparently unreasonable or apparently hopeless cases, and instead guaranteeing representation for everyone at law.

There are a few other reasons why solicitors might value an independent bar, though maybe some won't agree with some of my suggestions (or maybe, any of them):

  • especially for smaller practices, it allows solicitors to retain clients and have them represented in Court when the solicitor can't be everywhere at once
  • barristers might have expertise or experience in an area of law the solicitor doesn't possess
  • the solicitor might not feel capable of, or comfortable with, appearing in court for a particular case
  • the solicitor might want an independent opinion or advice, say perhaps if a client isn't very receptive to the advice they're provided
  • it might be cheaper for the client to brief a barrister. For example, the daily rate of a junior barrister might be less than a day's fee calculated on an hourly rate for a senior partner waiting all day at court, or spending several hours settling an advice

I discussed the cab-rank rule, and its importance, on twitter last week with a solicitor who thought that the cab-rank rule is often ignored by members of the Bar. I can't say I've seen it, but then, I can only really speak for my own practice. I've prosecuted and defended; represented people with lengthy criminal pedigrees, and police officers and professionals with no previous court appearances; I've taken legal aid briefs and declined others because I'm already briefed. I hope my experience is typical, because otherwise, the future of the independent Bar is in strife. What do you think? Is it typical, or are barristers declining briefs in the hope of better paying or easier cases?

Recent UK developments


Meanwhile, in the UK, the independent Bar seems under threat from present plans by the Attorney-General.

The direst prediction is the death of the Bar, and most solicitors firms, in two years.

The Criminal Bar Assocation is not quite as dire, but still remains very concerned about the government's plans.

The dispute centres on two things: the Quality Assurance Scheme for Advocates (QASA) and Best Value Tendering (BVT).

The two are apparently claimed to be separate, but QASA ratings will be linked to the ability to perform correspondingly rated legal work under BVT. So, despite the government's claims, it seems the two go hand-in-glove. There's nothing official out on BVT yet, with a consultation paper due for release in April, and commencement of BVT scheduled for June. (Which is odd, unless the 'consultation' is more window-dressing, and the thing is intended to happen regardless of what the legal industry says.)

One contentious part of the proposal is that judges will assess advocates. The potential for problems is obvious, because a 'fearless independent' advocate might well get up the left nostril of the Bench.

But even then, though a judge can be trusted to judge, they won't be completely trusted to assess advocates! That important task will pass to people employed by a legal regulator, and they will assess the judge's assessment, and decide if the advocate is up to scratch. So the fearless advocate now has two people (or perhaps more) to satiate, which may or may not conflict with their obligation to do the best for their client.

Lord Justice Alan Moses recently observed in his brilliant critique of QASA, "Do we really want a generation of criminal trial advocates who go into the court with the intention of pleasing the judge?"

He continues, "The obligations of independence may clash with the judge’s ideas of what the case requires. Everyone thinks they can run someone else’s case better than their own…judges are not immune from that self-deception, and the Court of Appeal and the Supreme Court live by the belief that they can." I think most advocates have experienced this phenomenon at some stage. (One of my colleagues describes this phenomenon in the Magistrates' Court, where the Bench doesn't have access to depositions, as the tendency of the one person in the court who does not hold the brief and who knows the least about the case feeling the most qualified to proffer opinions to everyone else about how the case should run.)

In situations like this the independent advocate comes to the fore. Lord Justice Moses again, "The advocate’s job may well be to insist that that is not the case, even when the judge who has missed the point persists in his belief that it is he, and only he, who has spotted it.The advocate’s job may be not only to clash with the judge’s ideas but even to clash with the judge." (Not to mention, does the current generation of judges want to add to its workload, and provide a potential further ground of appeal if an unsuccessful litigant claims the judge was distracted from their function by the additional role of assessing advocates before the Court?)

Recently, but no doubt entirely coincidentally, the Legal Services Board released a report into the cab-rank rule (executive summary here). The very short form of that report is because it's more of a principle than a rule, and doesn't seem to have ever been enforced, it should be abolished! (If charge or enforcement rates were the true measure of the utility of a rule, there are any number of criminal laws that might be abolished, like insider trading, or misconduct in public office.)

A recent response to that report was published on the Bar Standards Board website, here, where three barristers critiqued the LSB report, and another response by Sir Sydney Kentridge QC was published by the Bar Council here. (I confess I'd never heard of Sir Sydney, but turns out he's something of a rock star of the UK bar. BBC4 interviewed him just this week; you can listen to the show here.)

The importance of this is not only in a detailed look at the cab-rank rule and how it ensures the Bar remains independent, but that the same arguments might be argued here, given our governments predilections for importing all sorts of ideas from overseas. I reckon the significance of this is that without the cab-rank rule, there is no real difference between solicitor advocates and barristers. There are some fine solicitor advocates around, so it can't be advocacy skills alone that are the difference. (Indeed, since the UK abolished the right exclusive right of audience for barristers in the higher courts, and created a class of solicitor titled the Higher Court Advocates, the similarities have increased, and the differences disappeared.)

The players in the dispute


To make sense of who these bodies are and what they do, here's a brief overview of the players.

The Legal Services Board is the overall legal regulator in the UK. But it doesn't directly regulate lawyers. Oh no, that's done by no less than ten different regulatory agencies. (As an outside observer, I wonder why the cost-cutting doesn't commence with reducing the number of regulators...)

The regulator that supervises barristers is the Bar Council. It delegates that regulatory function to the Bar Standards Board, which is described as something independent, but shows in the Bar Council's organisational chart as a division of the Bar.

There is also a Criminal Bar Association, which has been busily advocating firm opposition to QASA and BVT.

The BSB says the whole thing is coming, one way or another, and that the CBA is silly to oppose it. (If you're a fan of Douglas Adams, you might think it sounds rather like the justification for building bypasses...) Meanwhile, the CBA is marshalling its resources, and the Bar Council has just weighed in with Sir Sydney's response.

You can watch developments at the various sites above, or on twitter with the hashtag #NoToQASA.

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