Sometimes parents are anxious that their barrister is not on their side, or even that they might be in cahoots with social services. Sometimes, when you’re being given depressing advice, it can feel as if your lawyer is not fighting hard enough for you, and sometimes it can feel as if they are spending too much time talking to the lawyers for the “other side” which makes you wonder about their loyalty. But sometimes parents feel anxious even before they get to court because they have been warned not to trust lawyers. For example, in this recent blog post ex-MP John Hemming suggests that barristers who act for parents when they have previously acted for the Local Authority who has brought a court case against them have a conflict of interest, the implication being that there is something dodgy if you are being represented by a barrister who sometimes acts for social services.
John Hemming is wrong in his interpretation of the rules. There is no professional conduct rule that prevents barristers from acting for different parties in different cases (obviously we couldn’t act for more than one party in the same case). Most family barristers are self employed, and all those self employed barristers act according to the “Cab Rank Rule” which says they must accept all briefs offered, however unattractive (there are limited exceptions which I don’t need to go into here). This is to protect the vulnerable and those with unattractive or superficially weak cases, and those whose cases are financially unappealing. The rule ensures two things : firstly that everyone who needs it has competent legal representation and secondly (this is more of a positive side effect) it ensures that a barrister representing a party has rounded experience of the sort of dispute in question, from all angles.
The important point is this : you need a lawyer who will fight hard for you. You also need a lawyer who will tell you bluntly when you are being stupid or your position is hopeless. And you need a lawyer who understands how the opposing team will be thinking, what will worry them, what they might see as their strengths and weaknesses, and where they might compromise. Having a lawyer who has acted for “the other side” is a strategic advantage.
But let’s just assume for the minute that John Hemming is right : before a barrister can act for you, they need to be sure you have given informed consent to me acting. How should you choose? What should you think about before giving your “informed consent”?
Competence and experience: Look at their chambers profile, CV, Legal 500 and Chambers & Partners profiles, Linkedin, twitter, blog… More importantly – ask your solicitor. Wherever possible they will choose someone who they have positive experience of, who has done good things for their clients before, and they will try and find someone who will suit the case and suit you. It’s okay to ask your solicitor to talk to you about the choice of barrister (although this isn’t always very practical for urgent hearings).
Rounded caseload: I would suggest it is generally a good idea to have a lawyer who does a bit of children work, a bit of parent work and a bit of local authority work. Any lawyer who does too much of one thing loses perspective a little. The job I do for parents is better because I know how Local Authorities think and act, and the same applies in reverse – I am able to give each better advice because I can make better predictions and manage the dynamics better.
Tells it like it is: Choose a lawyer who is prepared to tell you what you don’t want to hear. You can choose a lawyer who is a “Yes man” (or woman), but that is actually really risky. You NEED to know where you are going wrong, what your weak points are, where you need to change tack and have a rethink. It’s a really important part of a lawyers job – to deliver unpalatable advice and (bluntly) to call “Bullshit” when required. Once you’ve had the advice it’s up to you to give the instructions – you should not be afraid to say “thanks for the advice, but no thanks I’m going to do the opposite”, but if you’ve gone against the advice the outcome is your responsibility. But however daft your position it’s still the lawyer’s job to make the absolute best of the case you want to run.
Choose a lawyer who listens: Your lawyer will be busy at court and there might be a certain amount of running around and meetings between lawyers – and a lot of waiting around for someone to come and tell you what’s happening. This can be frustrating and anxiety provoking but it is necessary. It’s ok to ask your lawyer to keep you posted. It’s also ok to ask your lawyer not to go into court without you being present (sometimes called “counsel only” discussions. I do my best to try and keep clients posted and always try to request that parents come into court for all discussions, and I don’t mind being reminded when I slip up (it does happen). It’s your case. It’s ok to do as a client did the other day and to say “I don’t feel as if you’re on my side”. We talked about the difference between my private advice (negative) and the fight I would (and did) put up in court (feisty). And she was reassured. Your lawyer should not be dismissive of your anxieties about this.
Road test: And if you aren’t happy with your barrister after a hearing you can ask for a different one through your soliciitor. Do think before you sack them though – will you be better off with a different barrister or was the outcome of today’s hearing something they could not have prevented? A new barrister will have to start from scratch, so you’ll have to tell them everything again, and they won’t have first hand experience of the previous hearings, which can be important.
You can ask your solicitor to instruct a barrister who doesn’t act for a local authority, but you will find these are few and far between. The question you will need to ask is if no local authority wants to instruct this barrister why do I?
It’s probably better to ask your solicitor to instruct a barrister who has a good reputation for fighting for parents, but in truth your solicitor should be doing this as a matter of course. They might not always think to consult you about choice of barrister, but you can ask for input. Sometimes time constraints mean they will have to choose quickly without reference to you to ensure you have someone booked.
It’s worth remembering (as an example) that I have a good reputation for fighting for parents, but I am also regularly instructed by Local Authorities, and on behalf of children, and for extended family members. When I go to court and do my damndest for a parent client it doesn’t result in me losing work from the Local Authorities who are watching and receiving my incoming missiles. And when I act for Local Authorities the solicitors who are involved in the case for the parents, and who sometimes instruct me, know from experience that it doesn’t mean I won’t fight really hard for their next client when they instruct me. They just know I’m a lawyer who fights hard and who acts on instructions. That is what ALL clients want.
As often as I give unpalatable advice to parents about how idiotic they are being, I give unpalatable advice to local authorities too. That is the essence of the independent bar. When I’m YOUR barrister, I’m giving your case everything I’ve got. And the same goes for my professional colleagues (I’ve met a few bad apples but they are few and far between).
If you are worried about any of this talk it through with your solicitor, and if you feel it would help it is sometimes possible to arrange a conference before the hearing so you can meet your barrister face to face (this isn’t always practical given the way cases are timetabled and restrictions on funding, but you can ask).
Footnote : John Hemming says he is going to ask the Bar Standards Board to “clarify” the professional conduct rules. If he lets me know of any such clarification I’ll post it here.
Post script Mon 16 May 16 : the points about rounded caseload also apply to private law disputes. I think parents sometimes look for someone who always represents dads or always represents mums – I’m not sure this is the best way of selecting your barrister. There are some differences in private law – there is legal aid for victims of d.v. and so those represented under legal aid are predominantly but not exclusively female. This means that there is a preponderance of instructions from women / victims / primary carers, although of course in some families the stereotypes are reversed or not applicable and in others there are funds to pay for a lawyer regardless of eligibility for legal aid. In my view the assistance of a McKenzie Friend who comes from a “dads” perspective brings with it some of the same risks I identify above.
Post script no 2 Tues May 17 : See excellent sister article by Dan Bunting here : Should I worry if my barrister works for the CPS in other cases?
A common belief with parents who are within the local authority is that ‘local’ representation including barristers ‘run with the pack’ due to the belief that the local authority are the bread and butter income since legal aid has been stopped. Do you believe these parents have a valid issue given that most parents now seek representation from outside their local authority area in the firm belief that such representation not feeding from the LA hand with fight their corner harder as the day to day legal friendship with that LA has been removed ?
If you read the post you will see that no I don’t think that. Not least because legal aid has NOT been stopped in this area so the financial incentive you talk of just doesn’t exist. I regularly act for parents and children in care proceedings through legal aid and am happy to do so. And the rates for LA and legal aid work are comparable – if anything local authority is less well paid for the amount of work.
Well if you ask your barrister to fight and the reply is “go along with social services” (your enemies who say they intend to take your children) get someone else or represent yourself as you don’t need a barrister to surrender !
once again missing the difference between advice and representation. if a lawyer REFUSES to act on instructions then you should sack them. If they give you advice you will be highly unlikely to succeed doing X you should listen to them.
Lucy, rest assured was not having a go or pointing a finger towards you, simply stating that some parents belive that public law work for solicitors is the new bread and butter due to legal aid being stopped in private law except when DV is involved. The theory is that due to this issue they dont rock the boat with the LA by a real fights and tend to sidewith or have the soft approach with the LA to retain the work load from them.. This issue was put for your input to their thoughts & beliefs which is making them seek out of town representation or represent themselfs in some matters by the use of MKF’s which is one of the common topics at the moment.
If some parents believe that they are wrong. for a start legal aid *solicitors* don’t work for local authorities unless they leave their firm and go in house (or on rare occasions a firm is given overspill work that the in house team can’t cater for). Legal aid solicitors working in private practice will only ever be acting for parents, children or extended family in care cases. The position for barristers is quite different because barristers are self employed and may act for any party – either under public funding or paid privately by the LA (but from public funds rather than legal aid). Of all lawyers, solicitors in private practice do not get their work from local authorities!!
IF there were a phenomena of lazy cozy local practice where everyone is too chummy to challenge (and I have seen it on occasion but it doesn’t happen for the reasons you suggest) then the solution to that is the instruction of an independent advocate and / or out of town solicitor who can shake em up a bit. I quite enjoy going to some remote court and being told “oo we don’t do it like that here” before giving them a kick up the behind. On the other hand lawyers from far afield sometimes come here and remind us of things we are doing wrong – a bit of mixing it up is healthy in the same way that a bit of mixing it up with different clients and different perspectives is healthy. But that said, there is always a risk that you choose an out of town incompetent and end up worse off – so I’d be inclined to choose based on reputation and experience rather than geography.
Solicitors do act for both the L.A. and parents. Our solicitor left the final hearing ( one of her clerks substituted for her) whilst she was representing the L.A. authority in another case in another courtroom).
then your solicitor is very probably not a solicitor at all but a barrister (unless the exception I mentioned about overflow applied).
My solicitor was a solicitor and my barrister was sitting just in front of the solicitor’s clerk.
well then I’m VERY confused.
Why are you confused? Solicitors do represent Local Authorities and respondents despite your belief. simples!!!!
After what happened to us, it looks like they put them before parents.
Julia, I acknowledge that they do occasionally in my post. But it isn’t unusual for a solicitor to leave a barrister they have instructed to it part way through a hearing – they will not be paid for both of them to attend and usually it is not necessary for you to have both there. I don’t know whether in your case the lawyer left for a meeting with a LA (perhaps about a parent or child they were representing) or if they were acting FOR the LA. That is the sort of thing it is easy to get wires crossed about in the middle of a hearing. In any case I’m not sure that in itself it represents a problem for all the reasons in my post.
Lucy From your twitter timeline “Mr Justice Peter Smith’s complaint about Lord Pannick QC’s newspaper column tells us more about judge than columnist” This is the major reason why parents are suspicious. Unfortunately I do not know how to copy the tweet you probably do . However it appears the judge had a complaint made against him and got letters of support from 24 silks, 4 High Court Judges and 1 Court of Appeal Judge. How can this not be a case of who you know not what you know?
What hope in hell does a parent or any applicant have against such a tight knit community? I my case both the LA barrister and the Guardian’s were from the same chambers, they did not announce this but I found out later on the internet, the judge when practising was in the same city and the appeal judge was also from the same city and would have been a contemporary of the judge. He had been secretary of the local Bar, she was born in the LA area and attended the university ( and has an honorary doctorate) of the city where the court is situated. All would have been very likely to meet at sometime, the two judges more than likely to be more than nodding acquaintances. There are of course strong links with the court and the law school at the university.
Individual lawyers may not be influenced by the close knit community or is it probable that they may?
Sam, I agree with you this news item does nothing at all to increase confidence in the legal system and that is really really upsetting. All I can say is that one of the reasons the legal community have been furiously tweeting this with lots of exclamations is because we are all shocked at how outrageous the letter is. It really is quite inappropriate and it is acutely embarrassing to see a judge make such remarks. I think that the letter fortunately represents a small minority of lawyers / judges who hold a very outdated view of how things work, but I appreciate it is easy for me to say that and harder for outsiders to believe. What is apparent from the letter at least is that in spite of demands from the judge the chambers in question had not capitulated, which was the subject of much ire.
As to the point you raise about barristers from the same chambers – that is not unusual either. Barristers are self employed sole practitioners and we keep our practices separate even though some of us use the same building / clerks. It is not like a solicitors firm where we are all line managed by a single employer (thats why solicitors in the same firm cannot act for two clients in the same case). We have clear systems in place to prevent conflicts arising – where one of us is acting for one party we cannot then act for another, but it is acceptable for two members of chambers to act in the same case. We are often on opposing sides and nobody takes offence at a colleague arguing against them. It is part of the job. It is generally a good idea to explain to a client if you are in the same chambers as another barrister on the case, because it can feel odd to a client who doesn’t understand how chambers work. It is also inevitable that judges and barristers will know one another – unless we massively expand the pool of lawyers I don’t see any way around that. Judges who have a close personal (as opposed to professional) relationship with someone in the case usually raise this at the outset to see if anyone objects or even just refuse to hear the case. So, for example, our head family judge here is married to a local solicitor. He will not touch any case involving his wife’s entire firm even if she is not personally involved in it. It causes great inconvenience when no other judge is available but that is how it has to be to ensure nobody thinks he is biased. I hope that is reassuring. I don’t think the Peter Smith example is at all typical.
Yes Lucy that is some reassurance, especially about how barristers operate. I am absolutely certain from what I have read about your head family judge he would be scrupulously fair. I think what amazed me in the example was not the judge so much but the fact that so many lawyers and other judges (including Court of Appeal) were prepared to give him supporting letters. It seemed to an outsider rather you scratch my back and I’ll scratch yours. What if one of these QC’s, lets say Mr Jellyfish QC who had written a supporting letter is up against another MS Shark QC and the case is pretty equal, who does the judge prefer , I know who my bet would be on.
Barristers obviously put forward legal arguments and often do so despite their own personal feelings. Solicitors would clearly note a conflict of interest between representing a family member in the past and for example subsequently representing a child through their Children’s Guardian and vice versa. On this basis I suppose it’s easy to see why parents might perceive a conflict of interest by barristers too.
Yes, Armchair Lawyer – that is a perfectly valid point and it does require some explanation as it is not immediately obvious to the uninitiated why it is different for barristers. To be clear an individual barrister would not act for one family member and then another. It might well be that another barrister in the same chambers would do so, but they would keep their instructions and involvement separate and confidential – the difference is that they are financially separate from one another, rather than in the pay of the same boss. Chambers has no interest in which one of us “wins” our case (although to be transparent they receive a percentage of income from each barrister) and chambers does not instruct us on whether to take a case, how to run it etc.
As a social worker for the local authority, if I feel a parent’s barrister is giving me an easy time or pulling punches, I will make sure we never use that person as I worry about that person’s skill base/ethical base. If however, I am being given a hard time and pressed hard, I will make a note of that barrister and try to use him/her in the future.
You mentioned it’s OK for barrister’s to act for LA and a parent. I want to no if it’s OK for solicitor’s to do so? As I didn’t know till recently that my solicitor, worked for the LA in my case. And is now working for me. Something I’m very concerned about. As the solicitor hasn’t mentioned it as of yet. And my case is private family law.
Firstly, solicitors firms do sometimes carry out work for local authorities, usually on a short term basis when they have more legal work than they can manage in house. That’s pretty uncommon but does happen.
Secondly, it is quite common for solicitors in this field of work to move between different firms / employers in the course of their career, and some will have been employed by a local authority at some point. I wouldn’t see that as a problem – there are many reasons why working for a local authority is and is not an attractive option and people come and go for all sorts of personal reasons (for example it may be more secure or maternity rights and flexible hours may be preferable in a local authority, and some get fed up with always only having one client rather than a mixed bag of different sorts of clients). I know several solicitors who have moved in and out of local authorities and they advise their clients (parent or social worker) of the strengths and weaknesses of their case in just the same way in either. And as with barristers it is a distinct advantage to have some insider knowledge of how a local authority works in practice.
If you are worried about it, there is nothing wrong with asking your solicitor about it.