Chapter 26 Bar Ethos

Before I draw this spry polemic to a close, I wish to make a plea, drawing on some of what I mentioned at the end of the chapter on the international tribunals.

As you know by now, I have travelled widely, and appeared and taught in many jurisdictions.

Earlier I mentioned how in adversarial advocacy, we seek to win, but always observing the 3 rules:

1 do not mislead the court,

2 do not be sharp with your colleagues,

3 try to think like the tribunal -

these are the beacons by which we perform in court.

But what of outside court?

All advocates are members of a ‘Bar’ - meaning we have been called to the Bar, which of old was the wooden bar which separated the judges from the well of the court. From that location, close to the judges, directly in front of them, we are permitted to make representations on behalf of the public.

Over the centuries, there has grown a BAR ETHOS - that ethos is what makes being an advocate a great profession.

It is a profession because we put others before ourselves.

Advocacy should not be about making money - it is about serving the public.

You come last, and so should your bank balance. We never put making money ahead of doing the right thing by the client and the court.

Sure, you ought to find the pay is good, but it is not about that.

If it profits you to settle (perhaps because you have another trial next day), but the client wants to fight, then fight - if it profits you to fight (perhaps because you do not have another trial next day), but the client want to settle, then settle -

NEVER EVER EVER PUT WHAT PAYS YOU BEST BEFORE THE INTERESTS OF THE CLIENT - EVER EVER EVER.

This is sometimes hard. At the time of writing, 2014, there are pernicious financial pressures on UK criminal advocates.

Often instructing solicitors have a financial interest too in how the case proceeds.

Resist - desist - insist:

‘resist’ pressure from anyone but the client,

‘desist’ from thinking how you could buy a new car if only the client could be surreptitiously bent to your bank balance,

‘insist’ on putting the client first, always,

....while at all times offering due deference to the Judge.

The reason the profession of an advocate is held in the UK in high esteem is that the public perceive an advocate will always do the right thing by the client - this is a reputation which has been won through 700 years, but can be lost in a matter of months. Advocates are supposed to be selfless members of a quasi-priesthood, not a haggling traders in a market: do not sell out - client first, you last.

Respect each other. Help each other. Including your opponent. Your higher function is to maintain public confidence in justice, not to win at any cost - remember the 3 rules. The Bar is not Gordon Gekko’s Wall Street - great film, but it’s the advocates who finally send him to jail.

Speak straight, walk straight, be straight.

Your private life can be chaos, but your professional life must be honourable.

There is a reason judges are called ‘Your Honour’. Recall please, that most judges are drawn from the advocates. So act honourably.

The idea behind justice is that the public believes in it, and therefore allows advocates, guided by judges, to fight to right wrongs, without the public descending to medieval clubbing of each other with sticks - which people will again if you are not honourable. Think on what trust is placed in us - we act where a child has been murdered, or is being placed in care, or items of great sentimental value have been burgled, or where careers are ruined, fortunes lost, or homes seized. This is a great trust, really.

And we are trusted because we are honourable.

Which means we walk straight, talk straight, and are straight.

If those who perform in the courts do not act with honour, then why should we be trusted to resolve grievances - we won’t be.

You must be vigilant to guard the sanctity of this profession, lest it may die, and the trust of ages will evaporate.

We may disagree, maybe fall-out a bit, have very different characters, but we will always act honourably.

It used to be that barristers did not shake hands, because there was no need - to offer your right hand, in medieval times, was to show there was not a treacherous sword in it, and therefore that you came peacefully and unarmed - but barristers never needed to be armed, for it was always understood that, as we were honourable, we presented no threat of force, instead being known to be peaceful, and reliable, and trustworthy, doing battle only with words respectfully before the Monarch’s judges - keep this in mind: advocates are not hired guns, swashbuckling with blades, plotting mayhem - no, no, no, the public should always feel we do not need to show our right hand, and that we can be trusted to do right.

So, please, maintain connection with each other, and with the judges, through Bar associations, dinners, shared advocacy and ethics training, and get involved in carrying this profession forward to the generation which will follow you.

Wherever there is adversarial advocacy, there should be a Bar Association, gathering prosecution and defence, claimant and defendant, into a culture of professional pleasantry, overseen by the judges, who were mostly once advocates.

We are colleagues, never enemies.