Council Code of Conduct

I have chosen to evaluate the Bar Council Code of Conduct (8th Edition – 31 October 2004)1, specifically, Part IX {Compliance}, and in particular Paragraphs 901 {Non-compliance with the Code – Professional Misconduct} & Paragraph 905 {Duties of a practising barrister [et al]}2, and evaluate their appropriateness against the general ethical theory of Deontology. Deontology is a philosophy holding that decisions should be made solely or primarily by considering one's duties and the rights of others.

Essentially, the hypothesis denies that the right action is that which maximises the good, and instead insists that certain actions are a matter of duty or obligation (e. g. telling the truth is an obligation – it is the right thing to do, even in cases where lying would produce better consequences). It was advanced by the German philosopher Immanuel Kant (1724-1804), who held in his work 'Groundwork of the Metaphysics of Morals'3, that particular kinds of acts are morally wrong because they are inconsistent with the status of a person as a free and rational being (Kantism).

In attempting to discover the rational principle that grounds all other ethical judgements, Kant strived for what he saw as a 'categorical imperative', (rather than a hypothetical or conditional imperative), since all true morality should not necessarily depend upon an individuals dislikes or likes, but much more on a persons abilities and opportunities4. According to Kantians, the right action is that which passes the 'Test of the Categorical Imperative' (i. e. actions must not merely be means-ends rational, but must be universalisable).

Kant thought that the categorical imperative demonstrated that rational agents were valuable in their own right as 'ends-in-themselves', and did not need to be treated as mere means. He judged morality by examining the nature of the actions and the will of the individual, rather than the goals achieved. The main problem for the Kantian view is demonstrating how morality is grounded in reason (i. e. that the categorical imperative is the fundamental principle of rationality and that it is capable of generating substantive moral requirements)5. In an ethics of duty, the ends can, after all, never justify the means.

Or, at least they shouldn't. Other examples of deontological theorists include the English philosopher John Locke (1632-1704), and the more modern-day American professor of political philosophy at Harvard University, John Rawls (1921-2002). Locke, writing in his major 17th Century work 'An Essay Concerning Human Understanding'6, held that individual persons have rights that are part of the natural law of the world, and that actions including the death penalty (which, incidentally, Locke advocated), can be judged as right or wrong based on whether the individual respects those rights.

Rawls on the other hand, writing in his 1971 publication 'A Theory of Justice'7, argued that people have a duty to act according to the laws that they would propose if they were unaware of their present socioeconomic status: "… no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities.

The principles of justice are chosen behind a veil of ignorance"8. John Rawls was attempting to explain how and even why it is that people in society are obliged to obey the laws which the state creates for them. His primary objective within the narrative was to provide a solution to this 'socio-political obligation' through the idea of a 'hypothetical agreement'. Such an agreement could only be made under strict conditions of absolute parity and equality in order that there might be no imbalance in the relative bargaining powers of the two parties.

Rawl's goes on to suggest that the net result of such an agreement would be that any state making rules thus, and which society ought therefore to obey, could be justified in doing so on the basis that the coercion was done under conditions of complete freedom, and would therefore appear to be more of a guidance than an oppression. It would, in effect become a 'social contract'. Rawls called this theory 'Justice as Fairness'.

Therefore, if one is to judge morality by examining the nature of one's actions rather than by the goals that those actions ultimately achieve, the outcome relative to barristers should be that they achieve praise or blame only for those actions within their immediate control. However, we must never lose sight of the fact that until relatively recently9 barristers remained immune from prosecution for professional misconduct. Any punishment was always a matter of discretion for the Bar Council.

Consequently, the outcome of a barrister's actions would be determined not through any consideration of punishment on the part of the barrister (as that factor was rendered impotent), but more through their own personal determination of moral, principle and ethic. As we shall see, this is not always necessarily a model with criteria that brings the results one might hope for, or expect, from a barrister. Argument In order to evaluate the conduct of barristers in relation to these ethical questions, it is first necessary to fully understand exactly how a barrister operates.

Only through establishing how his/her professional position has been deemed different in the past (in terms of regulation and punishment), can we begin to understand how and why barristers make these mistakes when they have been accused of professional misconduct. From there, we can go on to try and determine the reasons behind them. Most opinion with regard to the law and its application over the last one hundred years will eventually and inevitably get around to the decisions made by Lord Denning. Controversial though he may have been, Denning was "… a towering figure in the law who made an enormous contribution to the law of this [20th] century"10.

Following his death in March 1999, it was said of him that "… he would go down in history as one of the great and controversial judges of the 20th century"11. Writing in his 1979 masterpiece 'The Discipline of Law' Lord Denning said: "A barrister cannot pick or choose his clients. He must accept the brief and do all he honourably can on behalf of his client. I say 'all he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount.

It is a mistake to suppose that he is the mouthpiece of his client to say what he wants; or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice… "The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to discipline. But he cannot be sued in a court of law. Such being his duty to the court, the barrister must be able to do it fearlessly.

He has time and time again to choose between his duty to his client and his duty to the court. This is a conflict often difficult to resolve: and he should not be under pressure to decide it wrongly"12. Barristers are almost unique among professionals in that they have, until quite recently, remained almost immune from action brought against them for professional negligence. This idea stemmed from the fact that a barrister, as a sole practitioner, never actually entered into a contract with his solicitor or client, and therefore could not be sued by that solicitor or client13.