How can you defend a rapist?

This : “but how CAN you defend a rapist?” is the apocryphal question asked of any lawyer at any dinner party she is daft enough to attend (actually the question is real enough, though I’m reliably informed by those who have a life that one doesn’t have dinner parties any more one has impromptu supper). It is unwise in the extreme to invite me to participate in a legal ethics quiz after more than a glass of red, because you might just get the full length answer. Fortunately for you, this full length answer is in the form of a blog post so I won’t notice or be offended if you turn your attention to someone else in the room and ignore me as I blather on.

 

Myself and a number of lawyers were involved in a lengthy twitter discussion recently between both lawyers and non-lawyers, which highlighted some of the continuing yet understandable misunderstandings and misperceptions of our role as lawyers and how we approach it – and some of the misperceptions we perhaps have about how well non-lawyers understand us and about how well we explain things to them. We roll our eyes at the “stupidity” of people who don’t get it – but actually it is an indictment of our own powers of explanation and attention to both client signals and public discourse if intelligent people without law degrees are misunderstanding this stuff. In this particular twitter exchange it took some time to unpick that at the root of the confusion was a lay person who’d been told by a criminal lawyer that he only could only represent clients who he believed. Roll your eyes at that if they need the exercise.

 

Misunderstanding number 1 : it’s part of a lawyer’s job to believe her client

 

Clients often ask pitifully, “You do believe me, don’t you?” or (if I am inadvertently wearing my skeptical face) “You don’t believe me, do you?”. Lawyers don’t do belief or disbelief. Or if they do, they do suppressed (dis)belief, knowing that it can distort our thinking and assessment of a situation and impair our advice and judgment. We know this, but clients don’t. Unless we explain it.

 

Cheese (no biscuits)…(thanks @nefamilylawyer). Apparently less confusing than Justin Bieber’s face…(don’t ask).

I cannot pretend never to have had a hunch or indeed a very very strong smell of rat, but every so often the hunch I had at the start (that I have carefully stowed at the bottom of my suitcase with my flat shoes at the start of the trial) turns out to have been plainly and obviously wrong once the witnesses get into the witness box and their evidence is tested through the rigours of a trial. A trial is not very much fun for the participants, but it is quite effective at bottoming out who is talking b*llocks. Sometimes a client who is compelling in conference is a disaster in the box and caught out in a lie. Other times a client who you think will be a disaster in the box is a picture of serenity and reasonableness in front of the judge. And sometimes people say things you never ever expected in the course of a trial – they contradict themselves, admit the thing you thought they denied, or concede a point you thought was contested. And sometimes they just introduce a fact that nobody involved knew anything about and wasn’t mentioned in their statement. And it’s worth remembering, every lawyer learns quickly that even a truthful client will not tell you everything. When assessing a case the lawyer doesn’t have the benefit of hearing what the other party is telling their lawyer – they get a picture which is dominated by the account and perspective of the client. A wise lawyer knows that even an honest client will try their best to present their case in the best light to their lawyer. It is human nature. The first time anyone gets truly to see the whole picture is in the courtroom. The witness statements are but a feint hint at what may be to come and in most cases are not determinative.

 

Yes, dear dinner party guests, there are good reasons why lawyers don’t “believe”. What we believe in is the trial process – it is imperfect, and it doesn’t always get to the truth (whatever that is) but it is the best approximation we’ve got.

 

It can of course be difficult to represent a client in whom you have no faith at all (for example a client who has repeatedly told even their own lawyer lies) – but representing dishonest, flaky and unpleasant clients just as well and with as much effort as we represent the fragrant and sympathetic ones is all part of what we signed up for. We can’t mislead the court of course, but our conduct of the case for someone who appears to be a lieing toerag should be as effortful as it would be for the apparent victim of said lieing toerag.

 

By contrast, it is easy to enthusiastically prepare a case for someone who appears to be a wronged victim, perhaps someone with whom you can identify. But this is precisely the sort of case where great care needs to be taken. Such cases can be very hard on an advocate who does not succeed, and the risks of inadvertent error are higher.

 

The only person whose job it is to believe or disbelieve a party is the judge (or in a criminal case the jury). At the end of the case having a lawyer who believes you will do you no good at all if the judge / jury thought it was a pack of lies. Don’t look for a lawyer who believes you; look for a lawyer who will make the judge / jury believe you.

 

…PAUSE for sorbet…

 

Misunderstanding number 2 : a lawyer needs to believe their client to do the best job for them

 

In my experience, the cases where things go wrong, or where someone unexpectedly comes a cropper when they thought they were on a dead cert, are often the ones where the lawyer has fallen under the spell of the client a bit too much.

 

Lawyers who “believe”, who identify too much or become a bit too closely aligned with their clients may not spot the holes in their case, may not spot the train hurtling towards them, may not adequately advise their client of risk or prepare their client for the possibility of an adverse outcome. A good lawyer who finds themselves getting too close to a case knows they need to self-consciously step back and do an objectivity check (noticing yourself huffing in outrage at every step taken or submission made by the other side or having to suppress theatrical eye rolls every five minutes are both pretty reliable warning flags (playing to the jury may be a thing in criminal trials, or possibly its just a thing on tv but its certainly not a good look when there is no jury). In a speech in 2015 Lord Neuberger gave an account of unconscious bias creeping into his decision making when a trial judge, as he realised that his yearning to believe a particular witness arose from the act that the witness unconsciously reminded him of his father – there is the same danger for lawyers who believe their clients. Unlike the unwary lawyer, the judge will probably not be wearing the same rose tinted glasses as the Belieber.

 

…Cheese anyone? the Brie is lovely …

 

Misunderstanding number 3 : lawyers are just hired guns then?

It would be easy to think that if lawyers aren’t bothered about believing their clients they are just cold hearted mercenaries who don’t care for their clients. But in fact the best and most passionate lawyers are the ones who understand that to fearlessly represent and to do the best for your client you need to maintain objectivity and professional distance (with a sprinkling of client care). We fight for you by being your lawyer not by being your friend. Hopefully you have friends to do the latter. And they don’t charge you.

 

It is part of a lawyer’s job to tell you the hard to hear stuff (privately of course). And then, to go out there into the courtroom and fight the best possible fight even if the advice has been that the case is weak. That advice might include that (based on experience), the lawyer doesn’t think the judge or jury are likely to believe the explanation given. To a client that can sound a lot like a lawyer who doesn’t believe, but it is the hallmark of a lawyer doing their job and honestly telling you what they think may happen. I tell my clients “If I’m busy believing you I can’t do my job properly for you”.

Believing a client or stating such belief to a client has no useful function. These may be well received, soothing words, but our client care skills really have to be more sophisticated than telling a client what they want to hear. And our duties to act in the best interests of each client require more.

 

….gosh is it that time already? I really must be off. The babysitter will be waiting…

 

Misunderstanding number 4 : lawyers don’t represent clients they don’t believe

Imagine this : your ex has accused you of some of the most awful things imaginable (think of your Room 101 fear). You know they are lying, and that the evidence they have produced is doctored or manufactured – but they’ve done a pretty good job and from the outside it looks pretty bad. If you were a juror you’d think you were guilty as hell… I bet then you would be glad of a system where lawyers are happy to represent both the popular and the unpopular, the clients with strong cases and those with cases that look doomed to failure. When your back is against the wall you don’t want to be having to search for the one lawyer that believes you in spite of the mountain of evidence (you’d have to ask yourself why any lawyer worth their salt would believe you OR disbelieve you without analysing it first). You just want a lawyer who will accept the case and work hard on it to the best of their ability.

 

The system we have in this country to protect defendants who need representation when their liberty is at stake is the cab rank rule. It doesn’t just apply to criminal cases, but also to other sorts of cases (civil and family) – although there are some exceptions around legal aid.

 

The cab rank rule means that whatever job comes along first we take it (as long as its in our area of work / expertise and on a day when we are available / have capacity).

 

It applies to barristers, and it is professional misconduct for a barrister to break that rule – and although it doesn’t apply to other types of lawyers such as solicitors (whose code of conduct says they can accept or decline work at their discretion as long as they don’t discriminate in doing so), it is the way in which most advocates operate most of the time. Lawyers like the lawyer my twitter correspondent mentions who says that they only represent clients they believe (presumably a solicitor because it would be professional misconduct for a barrister) are in my experience in the minority – they are possibly creating unrealistic expectations on the part of their clients, and may not be doing them as many favours as it appears at face value.

 

None of this means that I dis-believe my clients. I hold in mind two (or more) possibilities). And none of this means I don’t care about my clients. I do my level best to be sympathetic, patient, tolerant, to factor in their emotional as well as their practical needs when advising and representing, but ultimately to tell it like it is when I think their case is pants (sorry for technical jargon). No client should find out how pants their case was through the judge explaining it in her judgment. And how does a lawyer who has worn their “belief” on their sleeve square that with telling them some home truths about their prospects, which is the only human thing to do?

 

So, by now you should have worked out what the answer to the rapist question is. The hypothetical person asking the question has assumed the “rapist” IS a rapist. The good lawyer assumes no such thing, but objectively assesses the evidence on either side, does her best to disprove the fallacy behind the question – and lets the court decide.

 

By now I assume you’ve all eaten pudding and retired to the billiard room for cigars whilst the ladies darn your socks and titter in the drawing room. Save me an after eight…

Who knew? The EU destroyed the traditional nuclear family

ring by Eivind Barstad Waaler on Flickr

“Heaven preserve us from pundits and experts” begins Paul Coleridge, in his recent opinion piece in The Telegraph : Brexit is an opportunity to reverse the tragic decline of marriage in Britain.

Indeed.

I’ve got a right strop on.

You’ll be relieved to hear that I am going to spare you my views on Brexit itself, and will focus on the main hypothesis in this piece, which is basically that in Brexit lies the cure to the social malaise that is epitomised by the decline in marriage and the epidemic of single mothers.

For those wondering whether this connection between Brexit and marriage is entirely opportunistic, it is apparently National Marriage Week. So, whilst for the other 51 weeks of the year Brexit is more commonly described as a metaphorical divorce (a metaphor that has endless potential), this week the tables are turned :

So, with that in mind, let me explain why our decision to exit the European Union and revert to full self-government of the UK might revive marriage and enhance family stability.

Oh, go on then. Hit me with your hypothesis…

Apparently it boils down to national psychology. We joined the EU out of weakness not strength. And the EU has caused our “traditional independence and self-confidence [to] wither”.

Also, there’s some statistics and a graph. We are told that before EU 90% of new parents were married, but now we’ve got 2 million single parents – we are presumably intended to infer some sort of causal relationship between our membership and this devastating social decline. I’ve no quibble with those statistics, but I will eat my wig if this trend is not replicated in pretty much any western country you care to name whether inside or outside the EU.

If you are wondering how it is that the EU has had such a corrosive effect on us, its all to do with the EUs “behemothic” ambitious legal nannying tendencies. Remember that stoned, satiated look when a baby has just drained the last dregs out of a massive feed? That’s how I imagine poor Britannia, bloated and unable to do anything for herself, swaddled in EU regulations (sorry my metaphor key got stuck down).

Anyway, this particular passage is just my bestie favourite in the whole piece :

And this “State will provide” attitude infected our national domestic life too. The generous welfare system did nothing to discourage family breakdown and it became economically possible for a woman to support children without financial support from herself or a husband. More and more items of our household expenditure were picked up by the State. Notions of individual family self-reliance faded.

Dammit, how I *wish* we could go back to those good ol’ times when it was economically impossible for a woman to support children without financial support (and permission) from her husband. If only it weren’t for women’s pesky notions of individual self-reliance we could go back to those happy days where people were forced to stay in unhealthy and abusive relationships that damaged themselves and their children.

I’ll confess that I’m struggling here to reconcile Coleridge’s enthusiasm for our national spirit of independence with his apparent wistful regret about the development of women’s independence. I don’t think he’s noticed the massive contradiction at the heart of his article. Do you think this might be the point where I’m supposed to suggest Sir Paul should “check his privilege”?

It’s pretty clear from Coleridge’s description here that his vision is of a vast population of single mothers (not fathers) all happily claiming benefits and lounging on sofas. Look at the passage above – it’s not men who unfortunately also become economically able to leave, thereby wrecking society with their selfishness and the emergence of “individual self-confidence” to leave abusive relationships. It’s just women. In this dystopian landscape there are no self-reliant working women or feckless fathers, and probably no benefit dads with care. It’s just us girls spoiling things by not letting our husbands provide and be independent for us.

Quite apart from my feminist rage, there is another huge non-sequitur in Coleridge’s argument. The capacity of a parent or family to be independent (or not) is nothing to do with marital status. It is to do with wealth, and to do with the economic on-costs of relationship breakdown (whether married or cohabiting) – two households cost more to run than one. Marriages break down too.

Coleridge neglects half of the equation. It is basic logic that for every single mum there is a single dad somewhere. And when I last checked, being unmarried or separated did not relieve the absent parent of his (or her) obligation in law and conscience to maintain a child where that parent is financially able. Much (though not all) benefit dependence is a function of the failure of an absent parent to honour that duty (sometimes wilfully but sometimes because it genuinely cannot be done). A failure to maintain is something that in my experience both formerly married and former cohabitants are equally likely to be guilty of (indeed many with assets and a decent income may resist marriage precisely to ensure their poor partner never acquires any marital rights).

I’ll skip over the usual Marriage Foundation marriage propaganda about how children of marrieds do better blah blah blah (completely unconnected to the fact that marrieds tend to be better off, and entirely down to the magical magickness of marriage as a thing).

 

Coleridge finishes with this :

Of course, no one could sensibly suggest that Brexit is a magic bullet for the restoration of the stable married family. 

(says the man who has just written an article pretty much saying that exact thing).

I prefer to switch that around and say that no one could sensibly suggest that marriage is a magic bullet for our social problems. And my humble prediction is that the only impact Brexit will have on marriage rates is probably those poor families including one parent is an EU citizen from another member state who are desperately trying to work out how to secure their right to remain together with their family post Brexit.

 

Feature pic courtesy of Eivind Barstad Waaler on Flickr – thanks!

Debretts* guide to social media for lawyers

get out of jail by Mark Strozier on Flickr

*It’s not Debrett’s, it’s mine.

It was reported last week in the Gazette that we barristers had been “warned” over our social media conduct. It took only a small amount of digging to establish this was somewhat overblown. In fact, the Bar Standards Board’s Independent Observer had suggested that the BSB might want to refresh its social media guidance to the profession as complaints about barristers use of social media were on the up.

The Independent Observer appears simply to have been echoing her earlier report which said this (and only this) on the topic :

Social media

  1. Social media use is a challenging area for all professional regulators. The BSB’s current stated policy on ‘media comment’ is already quite dated and narrow in scope. There are an increasing number of complaints relating to the use of social media by barristers. This was a topic of discussion at the recent PCC/Prosecutor Panel Awayday and there were a wide range of views.
  2. I think the BSB, informed by those involved in the enforcement system and recent cases, needs to refresh its guidance to the profession.

More a gentle warning to the BSB to shape up than a warning the profession, one might say. We do not know how many complaints of this sort there are, nor how any increase matches (or not) the proportional increase in social media use generally, let alone what proportion of such complaints are upheld (or even how many actually disclose a breach of the code of conduct).

We do know however, that some barristers have been sanctioned for their use of social media. For example, in October non practising barrister Ian Millard was struck off [disbarred****] for anti-semitic tweets he published, whilst Michael Wolkind QC, who made outrageous boasts on his website, was fined because such remarks were ‘likely to diminish the trust and confidence which the public placed in him or in the profession’ (see the Gazette here). This is not a completely new phenomenon either – in 2012 another barrister who called his opponents “Slimebags” on twitter (amongst other things) was struck off [disbarred]. On the other side, a solicitor who boasted on twitter about his “great win” over parents of children with special educational needs, prompting a twitter backlash, was also struck off[reprimanded – corrected shortly after publication. Apologies.] **.

However, one only has to google “barrister struck off” [or disbarred] to be reminded that the vast majority of strikings off [disbarrings] (which are still comparatively few and far between) are for dishonest or fraudulent conduct of one sort or another. The most notable recent example of striking off is that of a solicitor, the now notorious Phil Shiner. It seems likely too that a solicitor in Scotland recently convicted of a racist tirade against a mother and her 4 year old son on a train may soon face himself facing misconduct charges. There are plenty of examples from the bar too.

Anyway, back to that “warning”. As a blogger and avid user of social media this prompted me to check said BSB guidance. I recalled reading the Law Society Practice Note when it was issued a few years back, and that it was (for the time) pretty comprehensive. I thought I recalled something from the Bar Council or BSB. But actually I was surprised to find that there is precious little, and certainly nothing self-contained, so (with respect to the Independent Observer), that gentle nudge ought really to have been more a boot up the behind. As far as I can see there is no specific guidance for the profession from either the BSB or Bar Council on use of social media (what there is I set out below). That is quite extraordinary when one thinks about it – lawyers are all over social media these days. Even the judiciary have guidance (albeit somewhat unworldly). What we do have is passing references to social media in guidance about media comment. I think in my mind I must have absorbed that useful Law Society guidance, translated it for use at the bar and remembered it as coming from the bar (ah, the fallibility of memory).

I did re-find a useful post by @maggotlaw on ICLR entitled : Principles on social media conduct for lawyers, which rounds up the guidance applicable / available to the professions. It is dated 2014 but I don’t think anything substantial has changed (tells you something in itself).

It helpfully sets out the six principles of the International Standards on Social Media Conduct for the Legal Profession, adopted by the International Bar Association :

  1. Independence (“lawyers should reflect upon the professional implications of being linked publicly” to judges, clients, other lawyers etc. Or indeed governments. They “ought to project the same professional independence and the appearance of independence that is required in practice”).
  2. Integrity (“think about the impact social media could have on a lawyer’s professional reputation” – especially where something might “go viral”).
  3. Responsibility, “to understand use” of social media and its implications; “to clarify use” and the capacity in which they release content using social media and whether it is “intended to be relied upon as professional advice”; “to use appropriately”; “to adhere to practice promotion, advertising and solicitation rules, codes and legislation in use”; and to be aware of “conflicts of interest”.
  4. Confidentiality (“social media platforms are not appropriate for dealing with client data or other confidential information”; lawyers should also “consider client confidentiality more generally when using social media”).
  5. Maintaining public confidence (“restraint should be exercised so that online content adheres to the same standard as it would offline in order to maintain a reputation demonstrating characteristics essential to a trusted lawyer”)
  6. Policy (“employees of the practice [that engages in social media] should be given clear guidance and instructions on their correct use … in a work related capacity”.)

These standards all seem very sensible, and are referred to in the Bar Council’s Guidance Expressing Personal Opinions to/in the Media as helpful, but otherwise in this document social media gets but a passing reference and is identified as generally “risky”. Not an enormous amount of help, thanks Bar Council. Although not formally applicable, it’s worth reading the full International Standards document (link here), which is quite useful in helping one think through the potential issues.

So what does the BSB / Handbook actually say?

Gc22 note to the Code of Conduct says this :

The former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or current proceedings in which they are briefed has been removed.  Practising barristers must, nevertheless, ensure that any comment they may make does not undermine, and is not reasonably seen as undermining, their independence. Furthermore, any such comment must not bring the profession, nor any other barrister into disrepute. Further guidance is available on the Bar Standards Board’s website (https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/) or by clicking on the relevant link.

The link in the quote above takes one (indirectly) to the BSB Media Comment Guidance. It says :

The Bar Standards Board believes that, consistent with the rights of freedom of expression that are enjoyed by all, the starting point is that barristers are free to make comments to or in the media (this includes both conventional media – speaking to newspapers or broadcasters – and new media – social media, blogs and websites). However, because of the special position they occupy, certain rules will continue to limit the circumstances in which it will be appropriate for barristers to comment on cases in which they have been instructed and what they can properly say.

That, ladies and gentlemen, is the single reference in the whole document to social media use. The note itself is only 2 pages long and amounts to no more than a big fat “be careful chaps”.

What it all boils down to is this :

CD5 –

You must not behave in away which is likely to diminish the trust and confidence which the public places in you or in the profession

This is Core Duty 5 of the code of conduct.

Also relevant are :

CD2 –

You must act in the best interests of each client 

CD3 –

You must act with honesty and integrity 

CD4 –

You must maintain your independence

CD6 –

You must keep the affairs of each  client confidential 

CD8 –

You must not discriminate unlawfully against any person

But significantly, CD5 (diminish trust and confidence) is the one that applies AT ALL TIMES – not just when one is providing legal services. Hence the BSB guidance : “you have a right to free speech, but if you wanna keep being a barrister you need to rein it in a little sometimes” (I paraphrase). (For what it’s worth, the link to the utterly frustrating, totally un-navigable Handbook is here).

So, how does all that help us work out what we can and can’t tweet? It really doesn’t. We must, it seems, rely upon our good judgment (ha ha ha).

We must remember that even when tweeting (or facebooking or whatever-elsing) in a personal capacity we could be hauled over the coals for a breach of CD5, although if someone doesn’t know your outrageous tweet is by a barrister it is of course unlikely to diminish public trust and confidence. But a barrister tweeting outrageously in a personal capacity who is identifiably a barrister is at risk of a CD5 charge – regardless of their right to free speech. The BSB can’t stop me tweeting rot, or offensive nonsense, or racist bile*** – but it can stop me being a barrister if I insist on doing it.

My response when I was politely asked by my then Head of Chambers (way back in the dark ages when blogs were still positively outre and wibble-inducing) to stop my trivial blogging in order to avoid damaging a far more serious and important colleague’s (apparently very delicate) practice, was : “free speech”. “Oh”, came the response – and that was that (Still p*ssed off said barrister compared my blog to “his wife’s heat magazine” though. However, I amuse myself with the knowledge that even he with the Heat-reading wife now blogs – how times have changed). But my Article 10 rights don’t of course mean that I just hit “Publish” with abandon. I often sleep on it, worrying about being the right side of the line professionally. Is this something a barrister ought to say? I blog and tweet in the knowledge that if I say something sufficiently daft my right to free speech will be no sort of defence to a charge under the code. It’s not a get out of jail free card.

It doesn’t surprise me that complaints about our use of social media are on the rise. How could they not be? More barristers are using social media. More people are using social media. And people get upset and offended (I know, I’ve been there, on both sides of the upset). Twitter is notoriously slow to block, litigation is expensive – but those who are regulated can be complained about to other bodies – to chambers, to the BSB, to the Ombudsman. Such complaints may have merit – or not.

And we lawyers can be robust, perhaps even blunt. Sometimes persistent. Often sweary. This can be pretty combustible online. But in itself is not the stuff of a complaint with legs. Such is life online. I doubt many of us who use social media have never put a foot wrong, I doubt any of us have not tweeted or posted something that has not drawn sharp criticism or offence. I for one have been sued (unsuccessfully), threatened, sworn at, called names and sharply criticised (sometimes justly sometimes not). But of course I don’t always get it spot on. And I don’t think the bar at large is in regular breach of CD5. The public expect the profession to be human and, as such, ordinary human error or moments of foolishness are unlikely to diminish the public trust and confidence in us as professionals. But that doesn’t mean we can act like utter idiots.

So. My guidance to the profession? Be a nice human being. Ask yourself : will I be embarrassed to read this the morning after? If you aren’t sure, don’t say it till the morning after. And yes, I slept on this one before hitting publish…

 

** Someone is bound to observe that there has been recent press coverage of a dispute between a colleague of mine and another barrister, which involves use of social media and allegations of misconduct. This post is NOT about that and it would be inappropriate to comment here upon that matter (though I might have much to say if not fortuitously fettered by CD5) other than to say “handbags at dawn?”. Really? Quality journalism there… But naturally, that matter has been on my mind, along with (it seems) never ending news reports about barristers and solicitors struck off [or disbarred] for assorted awfulness. That unhappy situation cannot but have informed this post, but this post is not a comment upon it – and I am not going to permit comments that attempt to turn it into a forum for discussing things which are being dealt with through other channels.

*** I don’t do that last thing. I don’t do the second thing on purpose. I do the first one a lot.

**** I’ve corrected references to striking off, as barristers are technically disbarred not struck off (of the roll, as with solicitors). Thanks Gladiatrix.

Feature Pic : courtesy of Mark Strozier on Flickr – thanks!