John Hemming's Web Log John's Reference Website
Sunday, May 15, 2016
  Barristers, Conflicts of Interests and the Family Courts
I have been having a debate with various Family Court barristers as to what the rules are in respect of a barrister taking on a case for a parent when they previously have taken on a case for the local authority the parent is facing in the court.

The rules on the Bar Standards Board website are difficult to link to clearly. The basic rules can be found from here.

The relevant rule is:
rC21 You must not accept instructions to act in a particular matter if:

-3. there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or


If, therefore, we consider the case of a barrister considering whether they should accept instructions to act for a parent Mr Smith against the Huntingdonshire County Council. This particular barrister had earlier acted for Huntingdonshire against Mr & Mrs Jones.

It is clear that Huntingdonshire is either a former or existing client. It is also clear that there is a conflict of interest between Mr Smith and Huntingdonshire in the "particular matter".

Hence the barrister should not accept the instruction: unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances;

I don't think there is anything unclear about this. It is clearly the case that this rule is not being followed properly for family proceedings quite frequently, however.

The rules for solicitors are easier to find here are are quite similar. (As they should be).

Update 16/05/16

I have now spoken to the Bar Standards Council. It is clear that there is some lack of clarity in the wording of rule -3. It would be clearer if it said: -3. If you have clients or former clients in respect of the particular matter and there is a conflict of interest between the prospective client and those former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or

or

-3. there is a conflict of interest in respect of the particular matter between the prospective client and one or more of your former or existing clients unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or


Either of those draftings is clear. The current drafting does not make it clear that it is only clients or former clients relating to the same matter as that for which someone is requesting someone to act.

I think the BSB are working on the narrow definition of the rule. It must be very rare that this happens. That, however, in my view means that the rule needs to be changed. It is not equality of arms for someone to unknowingly instruct someone to represent them who is effectively on a retainer to the other party. It does, of course, depend substantially, but not entirely on the volume of instructions that someone gets from the other party. I don't personally think that permission is needed from former clients for a barrister to be instructed to act against them. However, there really does have to be transparency to the prospective client as to how dependent, both their solicitor and their barrister is on funding from another party to the case.

From the perspective of someone external to the system the drafting of the rule looks OK, but that is only because of the uncertainty. This is an issue I will continue working on.
 
Comments:
Oh rubbish! "In the particular matter..." The Smith case is one particular, the Jones case is a different one. No conflict, obviously.
 
The position that you adopt here about conflict is so spectacularly ill informed and contrary to (i) common sense and (ii) an ordinary construction of the English language that it defies belief. The conflict is not about having been instructed previously by one of the other parties, it is about a conflict in the particular matter. Those words are there for a reason. If the rule was that informed consent was needed if you had been instructed on behalf of the public body in the other side previously then that is all the rule would have to say. Yet it talks about conflict in the particular matter. Now, what is it that you identify as the conflict in a particular matter just by reason of the fact that I have previously been instructed by the CPS who now prosecute my current client?
 
Obviously we have a disagreement. I have contacted the BSB for clarification and will probably get in touch with the SRA at some stage.
 
A conflict of interest does not arise simply through the representation of one party.

Here is how I explain conflict to lay people as it can seem a little esoteric. The 'conflict' arises, certainly in the case of a solicitor, usually, through the operation of two core duties. The duty of confidentiality (i.e, the responsibility to keep any and all matters discussed with you by a client confidential) and the duty of disclosure (the duty to disclose all pertinent matters to a client to enable them to make informed decisions and give instructions). There are other duties which may conflict, like the duty not to mislead the court and the duty of confidentiality. (this is more often a part of the answer to the question, "how can you represent someone you know is guilty".

If a solicitor or barrister represents Huntingdon in case X they will have information which is confidential to case X. If the information about case is X children is not pertinent to case Y there is no duty to disclose it in case Y and there is no conflict. Of course, it in the course of representing X I became aware of poor practice in, say, the actions of a social worker and the same social worker was assessing the children in Y, I can quite easily see a conflict arising and I would stop acting.

Any lawyer must be continually aware of the risk of conflict arising at the outset, during, and at the conclusion of a matter.

I would be quite happy to talk to you about it more, with regard to the SRA rules, if you would find it useful. In the alternative, you might like to contact the Ethics helpline which is operated by the Law Society

http://www.lawsociety.org.uk/support-services/ethics/
 
So, in summary, you were totally wrong. And now you have been told you are wrong (without explicitly accepting that what you were being told by everyone was right) your response is that the rule is wrong. You want the rule to say what you wanted it to say but did not.

A clear example of bias. And a clear example, perhaps, of a conflict of interest. Your bias prevents you viewing such things objectively.
 
I have written about this here : http://www.pinktape.co.uk/representation/is-it-ok-to-be-represented-by-a-barrister-who-sometimes-acts-for-social-services/

In the interests of open discussion John I am sure you will publish the link to this alternative view on your comment thread so that people can make an informed decision about the topic before making decisions about their legal representation.

Lucy
 
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