This weekend on twitter, Rhys Taylor sparked a discussion about the rules that barristers are supposed to adhere to, and how they have changed. Many chipped in (too many to mention), and I said I’d write a post gathering all those rules together – the quirky, the defunct and the downright bonkers – for the benefit of newbies. As I’m about to be a pupil supervisor for the first time (yikes, poor thing) I thought it would be an excellent way of getting other people to do my homework for me. Oh how wrong I was…I’m now just very confused…
However, I happen to need a distraction from other things I really should be doing, so here goes.
You can read some of the tweets here :
I’m going to collate these in a blog post on pink tape – send them to me people!! Others include :
* no collars o/s ct bldg
* don’t leave oppo in court with judge
* bow on way out / leave backwards
* don’t rustle / whisper during oath
* nobody enters/ leaves during jdgmt
— Lucy Reed (@Familoo) September 14, 2019
and also on the original thread from Rhys that kicked it off :
During my pupillage (1996) I was taught:
1. Do not eat when walking back to chambers.
2. Don’t take your jacket off in front of solicitors, even when in the pub.
3. Never drink beer from the bottle.
4. Counsel do not take their bags into court.
To what extent have we moved on?
— Rhys Taylor (@RhysTaylor32) September 13, 2019
Perplexingly, what emerged most clearly was that nobody really knows what the rules are. Whilst there is lots of commonality in terms of what people *think* the rules cover, the details are full of inconsistencies both in terms of what specifically the rules require or prohibit and in terms of how closely they are followed and enforced. Indeed many mentioned rules that they or others never follow at all (though they might have done in the past).
It seems that whilst some were explicitly told ‘Never do x’ or ‘Always do y’ as a pupil, in many cases a ‘rule’ has been picked up by osmosis – and so inevitably without a proper understanding of the purpose or context of a verbalised rule, an observed behaviour is interpreted and aped differently, and is in turn observed and copied – and metamorphasises over time and across circuit boundaries. This is a product of the way pupillage has historically been somewhat unstructured / lightly regulated.
Not only does nobody able to clearly state or agree on the rules, but most of them aren’t followed religiously (or even consistently) anyway. 90% of them seem redundant or pointlessly archaic – though many do no harm – but just a few of them are actually more important than they may seem. The trick is to work out which ones matter.
So MY first suggestion to those starting out on a career at the bar is : don’t get too het up about stupid rules (apart from professional conduct / ethics rules obviously – please do take those seriously. I’m talking here about the idiosyncratic mannerisms of the bar that are supposed to mark us out as professionals and as gentlemen (haha)). Follow them if you can – whilst still junior at any rate – later on you can make a judgment call about which ones really matter. And take the opportunity to ask about why they exist whilst you are still green enough for it not to be embarrassing to do so. Later you can gradually shed them (or not) according to your judgment and preference, and when you are less vulnerable.
Although this weekends tweets amply demonstrated that anyone attempting to catalogue all these rules is a fool, here is my attempt to summarise the wisdom of the legal twitter hive mind :
- Dress yourself properly
- apparently brown shoes = solicitor so are a big no no (some might say they are a big no no anyway),
- ditto brown suits (I was going to ask who the HECK wears a brown suit but then remembered that as a very junior barrister I bought a designer brown suit with tiny pink polkadots. I wore it once to some South London court for an emergency hearing before deciding there MUST be a rule against it and ditching it. My gut feeling was right, it was totally inappropriate (although way cool).
- coloured shirts are out and its white shirts only (either whilst a pupil, for the first five years or EVER, depending on who you ask). Don’t ask me for advice on this I gave up shirts in favour of white tshirts a decade ago when I developed an allergy to ironing and now I’ve given up tshirts altogether as I’ve discovered the joys of a wardrobe full of black dresses and black jackets.
- lots of women had been told all sorts of things about how they should dress and present their hair (tied back). Comments were not just about the trouser / skirt debate, but also about the appropriateness of jewellery, lipstick, nail polish, flesh coloured tights. Personally, I think we can boil this all down to a single common sense rule for both men and women – dress like you have a serious job and not like you are going out clubbing. Don’t wear suits with pink polka dots on them.
- Talk about the solicitor’s triangle relates to a time when you could tell the difference between a solicitor and a barrister by whether or not they were wearing a three piece / double breasted suit or not (apparently – yawn) – and is not depilatory guidance.
- Dress the court
- Everyone agrees it you should definitely do it, but oddly there is no consensus on what it actually means. It might be the name for the rule that you should always make sure that at least one advocate is standing to receive the judge’s comments. Or it might be one of the rules about what happens at the end of the hearing – exit with a bow and backwards so you don’t turn your back on the judge, don’t leave one advocate or party in court alone with the judge, don’t leave the judge in court alone (unless released).
- Whatever the correct name for this little bundle of behaviours – these are important in my book. I always do them and you should too. They protect judges and advocates from accusations of nobbling, they ensure a respectful, orderly court process and promote good communication.
- Don’t undress in the wrong places and do undress in the right places
- there are times and places for bands and robes, you generally shouldn’t wear them out and about, and there is much confusion about who can run across the strand to pret with their tabs a-flying. It might be nobody, it might be only people running back to Lincoln’s Inn, it might be ok on the third day after a spring tide. Who knows? Not I. Also apparently you shouldn’t wear your wig to a fancy dress party cos that’s touting. I’m not sure how getting smashed with your mates whilst wearing a ridiculous wig is likely to drum up business but there we are.
- Rules about what buttons to do up when seem to be dead ducks
- Also, apparently you should never take your jacket off except when you are in the shower or in the second stage of labour or something. Less strict interpretations of this rule were – never in front of a solicitor / lay client (including in the pub), never in the court building. The main thing is DEFINITELY never take your jacket off in court unless specifically invited to by the judge (only happens if the air con is broken and at least three people have already fainted).
- Sit in the right place and stand at the right time –
- Don’t worry it turns out nobody knows where the hell they should sit either. Turns out everyone has a different rule – I have always found the mediocre bellringer’s approach very effective (wait and see where everyone else goes and fill the gap). But if you want a clear cut rule you can pick from any of the following – Applicant on the left (or right), Applicant on the Judge’s left (or right), Applicant nearest the witness box…or door… or window…or it depends on the court (applicant on the left in Bristol and on the right in Plymouth). If it helps, one judge tweeted that he doesn’t know either. Oh, also you should ask permission if you want your client to sit beside you.
- As for standing or sitting – there seems to be some confusion over when you advocates should stand when addressing the judge and when they may sit. I think its pretty straightforward – sit if its DJ or magistrates*, stand for anything else.
- As long as you stand when the judge comes in and when the judge stands up you’ll be fine. Unless it’s a standing hearing and you have to go first, cos then you can’t cheat and check what your opponent does before its your turn. If in doubt do it standing up.
- *Update : I’m reminded that you only sit for magistrates in the FAMILY court!
- Don’t touch other people – Barristers traditionally don’t shake hands. But actually it seems quite a few of us do, just because we’ve been told not to (lawyer radicalism in action there). Personally, my rule is if someone offers to shake your hand, shake it back and don’t be an rude.
- Don’t let anyone see your bag – everyone agrees the rule used to be (maybe still is) that counsel don’t bring their bags into court. But also everyone agrees that GDPR has done that one in – people are rightly cautious about leaving bags unattended, even in the advocates room these days. And you can’t leave a suitcase unattended in a conference room for fear of sparking a security alert. So, bags in court is pretty normal these days, even if some still go all twitchy about it. However the vibe is definitely that its still bad form to put your bag on the desk or even the chair (oops I might do the chair thing sometimes, I will have to stop) and not a good look to bring your coat into court. Someone on the thread said that there used to be a no briefcase rule, and when I started out in 2002 trolley suitcases were frowned on. Now all the frowners are too busy at the chiropractor to care and we all pull suitcases or (if we’re paperless) carry backpacks rather than over the shoulder bags.
- Use the lectern at your peril… The rule is apparently that juniors must never use the lecterns, which are reserved for silks. There were very mixed responses on this one when it came up a few months ago. Suffice to say there are enough very important silks who care about this to make it a dangerous pursuit in some courts! It seems to depend very much on local practice and may depend on whether or not there is a self important silk in your case or not. There are definitely juniors who use them and one line of thinking is that lecterns or stands of some sort are more commonplace now many of us work from laptops, so this rule may be breaking down – but it isn’t quite dead yet. I’ve got my own laptop stand so I won’t be testing this out any time soon!
There are loads more that came up most of which are daft and defunct (eg no conferences in solicitors offices).
But the best one of all is from Francis Fitzgibbon :
Always be polite to everyone you are in contact with, however exasperated you feel. Be kind.
— Francis FitzGibbon (@ffgqc) September 14, 2019
So that is my second tip for you : Follow that one and you’ll be right.
Oh, and thirdly – don’t read this blog post while in court. That’s VERY bad manners.