I’m feeling rather relieved I have no hearings to deal with next week and that I couldn’t attend court face to face even if I was instructed to do so, due to self-isolation. Others are not so lucky, and have hearings tomorrow and in coming days which are still – astonishingly – going ahead face to face. So, I’ve decided to make myself useful whilst stuck at home.
What are the guidance and ethical rules for barristers who have commitments to attend court?
Bar Council Guidance says (in respect of a FAQ about pregnant barristers) :
The ethics position is straightforward; you are not required to appear in person in hearings as a “vulnerable adult” at particular risk from COVID-19…This category includes those who are over 70, have an underlying health condition or who are pregnant. It may be possible to participate in the hearing remotely, which should be explored further with the Court. The BSB has issued a statement regarding such individuals withdrawing from cases or refusing instructions. For advice on your specific situation, contact the Ethical Enquiry Service.
(Bar Council FAQs 20 March here)
The Bar Standards Board guidance (again, 20 March – here) referred to says :
We know that barristers will continue to do everything they can to serve the interests of their clients and we should like to make clear that following Government or Public Health England guidance is not of course a breach of the BSB Handbook. However, you should ensure that you comply with any relevant obligations arising from following that guidance, particularly your duties to the court and your clients (e.g. if you need to cease to act or return instructions, you should clearly explain to your client or solicitor the reasons for doing so).
I’m going to stick my neck out here and say that doesn’t really provide a great deal of help on the ground. There are different interpretations of the Govt/ PHE guidance, in particular what amounts to essential travel.
My situation is easy from an ethics point of view (at the moment). I’m in self-isolation. As is the situation for those who are clearly in a vulnerable category or symptomatic. But what about those who aren’t? The worried well, if you will. Is it ‘essential travel’? Not from the point of view of your health maybe, but looked at through the lens of your client who has instructed you to attend court and represent them – if the courts are open and the hearing is going ahead it probably is ‘essential travel’ I’m afraid. [update – especially since we have now been confirmed as ‘essential’ workers – see here].
But that’s not the end of it. To work this through, we are going to need to look at the core duties in the Handbook. Let’s just set out the whole ten commandments here, for ease :
CD1 You must observe your duty to the court in the administration of justice [CD1].
CD2 You must act in the best interests of each client [CD2].
CD3 You must act with honesty, and with integrity [CD3].
CD4 You must maintain your independence [CD4].
CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession [CD5].
CD6 You must keep the affairs of each client confidential [CD6].
CD7 You must provide a competent standard of work and service to each client [CD7]
CD8 You must not discriminate unlawfully against any person [CD8].
CD9 You must be open and co-operative with your regulators [CD9].
CD10 You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations [CD10].
I think 1, 2, 5, 7 and 10 are the key duties here (I’ve left them in bold).
Personally, I’d say you are not serving the administration of justice if you are carrying on hearings in a way that exposes you, the judge, the parties and the witnesses to unnecessary risk of infection, sickness and an inability to continue with that case or to assist the court in the conduct of other cases going forwards. I’d say there is a duty to raise safe working issues with those instructing you and with the court as soon as you become aware of a problem. That’s probably a no brainer really – I think its what we’ve all been doing for the last few days. The problem is that (at the moment at least) some courts are ploughing on regardless and there seems to be something of a gap between the national guidance and the situation on the ground. What do you do if you think the arrangements remain unsafe for you and for those involved?
What if your client wants to crack on with a face to face hearing and you don’t think it’s safe?
That’s tricky. A potential conflicted position. Here I think that the ‘Outcomes’ help. Some things are subsidiary to others.
oC2 – The proper administration of justice is served.
oC3 – The interests of clients are protected to the extent compatible with outcomes oC1 and oC2 and the Core Duties.
Your duty to your specific client only goes so far. The overriding duty is to the administration of justice. Justice can’t be administered if half the cast in the case is unwell or too distracted to give their best evidence or to do their job competently. Justice cannot be administered at all (in any case) if all the lawyers are on their sick beds.
That said, there are two further relevant outcomes :
oC10 – Clients receive a competent standard of work and service.
oC11 – Clients’ best interests are protected and promoted by those acting for them.
Also – oC14 requires you to give care ‘to ensure that the interests of vulnerable clients are taken into account and their needs are met.’
Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client(CD7) …includes the following obligations:
1 you must promote fearlessly and by all proper and lawful means the client’s best interests;
2 you must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);
So, let’s be clear, your own personal self interest (I don’t want to get sick) is not the issue – but the broader collateral impact of risk to lawyers on the administration of justice might be.
You do need to be able to do your job properly in order to provide a competent service. And you need to protect your clients best interests (I’d say that includes their health even if they are frankly unconcerned about the obvious risks a face to face hearing currently poses). It might be said that delay through adjournment is not in their best interests, or that a remote hearing is an inadequate method of taking and assessing evidence fairly – but if a hearing begins and cannot conclude because the cast fall sick, or it is not properly conducted because everyone is more focused on wiping the bench than on the nuance of the case – you are not serving your clients best interests either. I would have thought that at present in any case that commences face to face there is a strong risk that it won’t be able to conclude because someone will fall sick – and we all know that adjourning part heard is the worst of all worlds.
I reckon you will have to consider here whether or not something less drastic than a remote hearing will meet the needs of the case. Much will depend on the numbers of people involved and their health / vulnerabilities, the facilities at the court concerned (size of courtroom etc), the travel involved, the facilities the participants have to dial in if a remote hearing were ordered, and the levels of hygiene at the particular court.
In many cases your client will be singing from the same hymn sheet as you, even without you explaining the risks and options to them. But in others they will not. This may be a long awaited hearing upon which the future of their relationship with their child depends, they may have spent significant sums of money in the preparation of it.
It is difficult to make submissions to adjourn for a remote hearing to be set up (assuming it can’t be achieved within the course of your fixture) if that directly conflicts with your instructions, although I will say that in extremis I have indicated to a judge that whilst my client does not wish for an adjournment I am simply not in a position to proceed for x or y reason (usually late receipt of information), and I would consider myself under an obligation to the court under the overriding objective and the code to flag these issues regardless of my clients position – because they impact on the conduct and fairness of the hearing for everyone.
What about accepting and returning instructions?
oC16 – Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.
Obviously, if you are not able to carry out work because you are unwell or unable to attend court because of your health vulnerabilities then you will be unable to accept new instructions (unless you are well and those instructions are clearly for a remote hearing).
Here r21 tells you what you need to know :
You must not accept instructions to act in a particular matter if:
1 due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client; or
2 there is a conflict of interest, or real risk of conflict of interest, between your own personal interests and the interests of the prospective client in respect of the particular matter; or
3 there is a conflict of interest, or real risk of 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;
and possibly r21.6 will become applicable when the emergency legislation moves through Parliament :
6 your instructions require you to act other than in accordance with law or with the provisions of this Handbook;
although if it becomes actually contrary to law to travel to court it is likely that court hearings will have been suspended anyway!
Some will already hold instructions though. It seems clear from the BSB guidance that you can return a brief for an attended hearing if you now cannot carry out the work because you are following government guidance (vulnerable, self-isolating or unwell) and the court cannot/will not convert the hearing to a remote hearing you can attend (in my case last week my self-isolation meant I had to dial in so I didn’t need to return the brief). However, I don’t think one can confidently say you can return a brief outside of those situations just because you are concerned about Covid-19 and don’t think that attended hearings should not be taking place.
Rule 25 sets out the mandatory grounds for returning instructions. They don’t apply. If you withdraw / return existing instructions it would have to be on the grounds set out in rule 26 – where you ‘may’ return instructions if…the client consents OR (as relevant) :
3.b illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions;
8 there is some other substantial reason for doing so (subject to Rules rC27 to rC29 below).
You would be returning instructions in an environment where your client has a worse than usual prospect of securing alternative counsel and could well be left in the lurch. See gC83 :
In deciding whether to cease to act and to return existing instructions in accordance with Rule rC26, you should, where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.
Don’t forget, even if someone is available to cover, you need consent to return instructions to someone else (rC27).
What if my efforts to convert to a remote hearing fail? Can I refuse to attend?
I don’t think you can. I don’t think you can just ditch a brief or return a brief because you don’t want to go to court during covid-19. I think you need to focus your energies on securing an alternative format for the hearing, or failing that some mitigations in terms of hearing layout and format. If you need to you could renew your application on arrival at court. Speak to your opponents and instructing solicitors – think about what practical alternative solutions you and others involved in the case can offer to the court to help them avoid a face to face hearing.
If you need to, make contact with your leadership judges, your circuit leader, your specialist bar association for support. Wave the Relevant guidance at the court (See below) if it is not being followed. I know that some local judges have asked for forbearance in contacting the court unless essential, but if you are on the eve of a hearing that should not be going ahead face to face that – to me – IS essential. And the guidance is there to be used.
But isn’t there guidance saying hearings will be remote by default?
Yes (you may be thinking of the guidance issued by the President of the Family Division – there is other guidance in different jurisdictions and lots of (inconsistent) local guidance too), but it’s just guidance, and it makes clear that decisions will be made on a case by case basis i.e. it anticipates that some face to face hearings may still take place. It doesn’t alter your ethical duties. That is why, no doubt, the FLBA has thought it important to specifically call for the temporary cessation of in person hearings (see here).
Nor logically, can guidance from your circuit, override your core duties under the code (such as that issued by the Western Circuit upon publication of the President’s guidance, saying ‘You will see it contains the eminently sensible message of ‘Keep Business Going Safely’. Remote hearings should be held unless a face to face hearing is both unavoidable, and safe’).
[Update 23 Mar : very strongly worded support for the criminal bar here from the CBA : https://twitter.com/TheCriminalBar/status/1242041805870370818 today. Nothing further so far from FLBA]
Nor logically, can the failure of HMCTS to comply with PHE guidance about workplaces alter your ethical obligations.
Guidance from our leaders (regulatory and judicial) is however, being updated daily. There are two consequences of this :
Firstly, it is entirely possible I’ve missed something here – if I’ve got something wrong because I’ve missed some update, please let me know.
Secondly, all this may change within hours of my publication of this post. It may be that it will become entirely redundant within days as courts close – frankly at the moment, one can’t rule anything out, though I notice as I’ve been preparing this post the PM has hinted at enforcement of social distancing but not actually done it.
For my part I hope it is swiftly redundant. It is difficult to see how it can be sustainable or safe to run public hearings in anything other than the most exceptional of cases at the current time.
Next : It is, of course, very easy for me to sit in my home in my snug christmas onesie, hypothesising about YOUR ethical and moral obligations. The truth is this post doesn’t really provide any concrete answers and you are going to have to make your best judgment with reference to the code and the particular circumstances (as will I when I get out of choke). I wouldn’t want this post to be taken as a ‘get out of court’ guide, but I know there is a lot of head scratching going on about what the limits of our professional obligations are and how they square with our duties to ourselves, our families and society at large – some of you may take the view that regardless of whether you are mandated by the code to attend you should do so for as long as courts remain open. Some will take a contrary view. There are many other public servants who won’t be able to work from home regardless of whether or not courts close (medical professionals in particular).
Finally, wishing you and your clients well this week. I hope that things will evolve this week as quickly as they unravelled last week, and that by next weekend we will have some better plans in place that properly prioritise safety whilst also maintaining justice. I know a huge number of you are not only contending with these issues, but also juggling family commitments and worries, and expending a huge amount of energy on emergency committee meetings of one sort or another, whether for your chambers, your circuit, your SBA or your local court. You are all amazing, as are the court staff and judges who are also all doing their best.
Much love, x