Hearsay ... the Journal of the Bar Association of Queensland
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Issue 70 - Oct 2014
The Values and Functions of a Referral Advocate Print E-mail

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“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public...” (Lord Reid in Rondel v Worsley [1969] 1 AC 191)

“An advocate, whose main duty it will be to represent his clients before the courts, must be a person in whose reliability and integrity the court must be able to place complete trust, it always being remembered that an advocate owes a duty at least as much to the court as to his client. And the court must be satisfied that he will not by his behaviour do anything to bring the courts or the profession into disrepute.” (Fieldsend CJ in Hayes v The Bar Council 1981 ZLR (A) 183)

Introduction

When we were requested to write a paper on the values and functions of a modern referral advocate, we felt that as young and, in our opinion at least, “modern” members of this profession, we should be able to come up with a list of values and functions in short order. After all, each of us had first-hand experience of being a “modern advocate”. It was only later, when discussing the parameters of our research and the issues faced by the Bar in our respective jurisdictions (England and Wales, Ireland and New Zealand) that we realised the complexity of the task. With the knowledge that the paper would be presented to an international audience, we were keen to expand our research to draw upon the traditions in other jurisdictions. To keep our focus within manageable bounds, we had to settle on the jurisdictions which we would cover. The choice was obvious. We would draw upon the experience of the members of the International Council of Advocates and Barristers (ICAB),1 who were instrumental in organising the very conference at which we are lucky enough to present this paper.

Having agreed the parameters of our research, we have sought to distil the values and functions of advocates in Australia, England and Wales, Hong Kong, Ireland, Namibia, New Zealand, Northern Ireland, Scotland, South Africa and Zimbabwe. The results are set out in the Annex to this paper.

We were hoping to find some common threads and shared values to ensure that our restatement of the values and functions of a modern specialist advocate could be of use across all of the ICAB jurisdictions, despite the inevitable differences in the structure and issues faced by the profession. We are happy to report that those common values were not hard to find. We should mention, however, that our intention was not to produce a definitive statement of all conceivable values and functions of a modern advocate but only those which we thought were the most important.

Our hope is that this paper will serve as a useful starting point for further discussions about the future of our profession in the modern era of international disputes and the increased use of arbitration and alternative dispute resolution. We are grateful to the organisers for giving us the opportunity to present it to such an esteemed audience.

Who is a referral advocate?

Before proceeding to the main part of this paper, we explain the terminology we use.

We have chosen to refer to an advocate as a “he” (merely to avoid distracting our readers from cumbersome language). All such references, however, are intended to be read in a gender-neutral way to reflect the diversity of the modern profession, which is indeed one of its values.

In a number of ICAB jurisdictions, such as England and Wales or Scotland, the term “advocate” is no longer synonymous with the members of the independent referral Bar. In fact, both barristers and solicitors are able to obtain rights of audience in front of all courts. In our view, it would make little sense if the values adopted by self-employed advocates were different from those held by employed advocates. We therefore hope that our restatement of values will be equally applicable to all advocates appearing in courts and tribunals across the ICAB members’ jurisdictions.

When it comes to function, however, we have specifically focused on the referral Bar. When we refer to a “referral advocate”, we mean an independent self-employed advocate who accepts briefs to appear before court from any person on whose behalf they are instructed. The main difference between the independent referral Bar and employed advocates is that the former are subject to the so-called Cab Rank Rule and are professionally obliged to accept instructions from any client regardless of any personal dislike for the client or the case. As Lord Pannick colourfully puts it: 2

[The advocate] earns his living propounding views to which he does not necessarily subscribe, and which are sometimes anathema to him, on behalf of clients whose conduct may not interest him, will often offend him, and can occasionally cause him outrage.

An employed advocate, in contrast, generally only accepts those briefs in which his firm accepts instructions. A firm is not subject to the same Cab Rank Rule.

The need for the restatement of values and functions

The specialist advocacy profession is currently perceived to be undergoing a paradigm shift. This perception is fuelled in part by the worldwide financial crisis which has highlighted the need to provide efficient and cost effective legal services where quality has almost become secondary to cost. However, in some jurisdictions, the reforms which gave rise to the changes in the legal professional landscape had commenced well before the financial crisis. These reforms, coupled with pressures on funding, mean that many values and norms which we have taken for granted are coming under sustained pressure, and new values and norms have the potential to take hold.

As a profession, we need to be astute to changes which society is undergoing and adapt to those changes, but without compromising the core values of our profession. In the days of consumerism and emphasis on consumer-led services, we must, as advocates, remember that the legal justice system, of which we are an integral part, exists not only for the benefit of consumers of the legal justice system but for the benefit of society as a whole. We have to be mindful that changes to the structure of the legal profession do not lead to a fundamental shift in the way our legal justice system serves our democratic society. The Bar can only do so by reminding itself about the fundamental principles and values which are inextricably linked to its primary function in the society which it serves.

As the President of the Supreme Court of the United Kingdom, Lord Neuberger, pointed out: 3

While the future may be uncertain, we can still consider what we would want it to look like and see how we can utilise the tools in hand to bring about that future. We do not have to be passive recipients of change. Indeed, we owe it to future generations to consider the possibilities presented by regulatory reform, changes to the justice system, financial constraints and technological innovations, and to consider how they can be harnessed to promote our commitment to justice and the rule of law.

With these words of warning in mind, we present our conclusions to you.

The common values of a modern advocate

We consider that all modern advocates should and do subscribe to the following common values:

  1. Justice
  2. Independence
  3. Integrity
  4. Courage
  5. Competence or excellence
  6. Civility
  7. Camaraderie

While most of these require little elaboration, we thought it would be helpful to explain briefly what meaning we ascribe to each of these values and why.

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The concept of “justice” or, more precisely, acting in the interests of justice, has the potential to encapsulate almost all other values listed above. However, its importance is such that we identify it as a freestanding principle, not least because it is inextricably linked to one of the most important functions of the modern advocate – ensuring effective administration of justice. This point was pithily made in Lord Clarke’s closing address at the last World Bar Conference: 4

…the existence of an independent Bar is central to the working of the courts and thus the rule of law, and without the rule of law, justice and democracy are nothing. There it is in a nutshell.

The advocate’s right to represent clients in court is a corollary of the advocate’s duty to serve the administration of justice. One aspect of this duty is the Cab Rank Rule outlined elsewhere in this paper.5 Closely related to the Cab Rank Rule is the responsibility to ensure effective representation of those who cannot afford legal services, including through pro bono work. The Bar has a great tradition of representing those who cannot afford legal assistance pro bono and it is important that this continues, especially in light of cuts to legal aid in many ICAB jurisdictions.

Another similarly important aspect of the modern advocate’s justice-related responsibilities is the duty to give the court “a fair representation of facts and adequate instruction in the law”.6 Advocates practising in all jurisdictions examined by us owe an “overriding” or “paramount” duty to the administration of justice. It is the existence of this duty that led Lord Hoffmann to conclude that: 7

Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice.

The classic enunciation of this overriding duty of an advocate to act in the interests of justice was given by Lord Justice Denning (as he then was) with his characteristic clarity:8

As an advocate he is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. 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. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court.

This special position of advocates as “ministers of justice” is all the more important in States where disregard for the rule of law is common. Advocates (together with judges) are one of the pillars upholding the rule of law and must therefore be committed to upholding the interests of justice at all times.

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The concept of independence of advocates can be elusive since it has so many different meanings. The different aspects of independence valued by the courts and Bar associations in various ICAB jurisdictions are set out in detail in the Annex to this paper. What follows are the aspects of “independence” which appear to have the most prominence among the advocates practising in these jurisdictions.

First and foremost, the referral advocates in all9 jurisdictions examined by us are subject to a professional duty or a professional tradition to take all work offered to them, provided they are available and competent to do it and will receive a proper remuneration for it. This is often referred to as the Cab Rank Rule. Despite some doubt as to the effectiveness of the Cab Rank Rule,10 the importance of this aspect of independence of advocates cannot be underestimated. The existence of the Cab Rank Rule promotes access to justice by ensuring that legal representation is available to all who need it, including odious clients and unpopular causes. It ensures that everyone is entitled to representation of their choice. In other words, it is not up to the advocate to decide which causes to take on. The choice of the advocate rests with the client.

One of the benefits of this rule is to prevent major consumers of advocacy services, such as high street banks, regulators or insurers, from putting certain (or indeed all) specialist advocates in their particular field “out of circulation”.11 This in turn enables consumers to have access to the same quality of legal advice and representation as that available to the big commercial organisations and the State and helps to ensure equality of arms before the law. In addition, the Cab Rank Rule ensures that no advocate can be criticised for representing a client whom the public consider to be particularly reprehensible. The rule that “lawyers shall not be identified with their clients or their client’s causes as a result of discharging their functions” is sufficiently important to have received recognition by the UN.12

The Cab Rank Rule, and its importance in upholding the independence of advocates and the administration of justice, has also been endorsed by the judiciary. Two examples from the UK and New Zealand suffice.

  1. In the House of Lords decision in Hall v Simons,13 Lord Hobhouse stated that “the duty to act for any client” is “a fundamental and essential part of a liberal legal system” since even the most unpopular are entitled to legal representation. He described the Cab Rank Rule as “vital to the independence of the advocate since it negates the identification of advocate with the cause of his client and therefore assists to provide him with protection against governmental or popular victimisation”.
  2. A few years later, the then President of the New Zealand Court of Appeal, Anderson P, described the “cab rank principle” as:14

…a professional obligation to facilitate the administration of justice. It is not overstating the obligation to call it one of the foundation stones of a free and democratic society.

It is the existence of this rule that allows advocates to act for and against the government (or any other major consumer of advocacy services) in different cases without fear of harassment or loss of future instructions. This ability of referral advocates to appear for opposite sides in different cases is often seen as the strength of the independent referral Bar. Such advocates possess the skill and ability to argue two opposite sides of the case with equal strength and conviction and through that they are often able to pre-empt or diffuse their opponent’s strongest point.

Another important aspect of the modern advocate’s independence is that he must not compromise his standards in order to please his client, the court or any other third party.

Thus an advocate must always remember that whilst he has a duty to represent his client fearlessly, without regard to his own interests, he cannot win by whatever means. He must present all the facts fairly, without withholding those which do not present his client’s case in the best light. An advocate must also give the court full instruction in the applicable law, including all authorities, whether or not they support his case. Similarly, the advocate must advise his client to disclose all relevant documents to the other side (and thus the court). It is then the advocate’s job to persuade the court that those unfavourable facts and authorities do not in fact detract from the strength of his client’s case (or advise his client to settle the case).

When it comes to giving advice to clients, it is the advocate’s duty to give his honest and objective opinion, irrespective of what his client might wish to hear. To the client, an opinion confirming the client’s incorrect view of the law is worthless. Similarly, it is not up to the lawyer to judge the client’s case, if the client wishes to have it heard in court. As Dr Samuel Johnson put it: 15

A lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. … If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim.

In order to ensure proper administration of justice, advocates must also strive to maintain their independence despite structural changes and economic pressures. For instance, the liberalisation of the English professional rules allowing barristers to become managers of, and hold shares in, legal disciplinary practices and/or work in partnerships with other legal professionals threatens the traditional independence of the referral Bar. Similarly, in Ireland, the Legal Services Regulation Bill proposes alternative business structures such as barrister – barrister legal partnerships, barrister – solicitor legal partnerships and multi-disciplinary partnerships which also pose a threat to independence. Barristers must be aware of these pressures and ensure that their quest for business profits does not interfere with their objective judgment and the professional ethics of performing their job independently without regard for their own (or their business partners’) interests. As observed by The Hon. Justice Michael Kirby AC CMG:16

The independence of the judiciary and legal profession is a fundamental principle recognised by the international community as indispensable in the attainment of a civilised society. It is fundamental to ensuring that the rule of law is upheld and in guarding against violations of human rights and freedoms. It needs more than words of self congratulations. In the present age it needs reinforcement.

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Integrity is another fundamental value of the modern advocate. Both judges17 and professional regulators18 rightly demand the highest standards of integrity from advocates. The need for honesty among advocates was famously emphasised by Abraham Lincoln in 1850: 19

There is a vague popular belief that lawyers are necessarily dishonest. … Let no young man choosing the law for a calling for a moment yield to the popular belief. Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

In the adversarial system, where judges depend on advocates for the effective and expeditious administration of justice, integrity is the hallmark of the Bar. Many legal systems would not be able to operate without the relationship of trust between the Bench and the Bar, and indeed within the Bar itself. Thus integrity of advocates is bound up with their duty to the administration of justice as a whole, “for the advocate must remember that he is not only the servant of the client, but the friend of the court, and honesty is as essential to true friendship as it is to sound advocacy”.20 And as noted by Sir Cecil Walsh back in 1916, “nothing is more calculated to promote the smooth and satisfactory administration of justice than complete confidence and sympathy between Bench and Bar”.21

Indeed it appears that the integrity of advocates was demanded from the very early days of our profession. Judge Edward Abbott Perry was able to trace it back to 13th century England:22

…from the earliest days the advocate may in no way maintain or defend wrong or falsehood. It is the right of his client he is there to uphold, and the right only. Nevertheless, although an advocate is bound by obligations of honour and probity not to overstate the truth of his client's case, and is forbidden to have recourse to any artifice or subterfuge which may beguile the judge, he is not the judge of the case, and within these limits must use all the knowledge and gifts he possesses to advance his client's claims to justice.

Maintenance of the highest standards of integrity remains vital to the administration of justice and the reputation of our profession. Yet, as Michael Beloff QC has pointed out, advocates do not possess some inherent morality - “they are cut from the same crooked timber of humanity as all of us”.23 It is therefore important that we do not take our commitment to integrity for granted. It is a precious value which has to be preserved, protected and celebrated.

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The advocate’s courage to fearlessly represent his client, whether in light of general public hostility or in light of hostility from the Bench, is just as important to the administration of justice as integrity. Lord Judge explained that:24

Neither the judge nor the administration of justice is advantaged if the advocates are pusillanimous. Professional integrity, if nothing else, sometimes requires submissions to be made to the judge that he is mistaken, or even, as sometimes occurs, that he is departing from contemporary standards of fairness. When difficult submissions of this kind have to be made, the advocate is simultaneously performing his responsibilities to his client and to the administration of justice.

Indeed, the advocate’s courage in presenting an unpopular cause or client can be seen as an aspect of the advocate’s integrity or the duty to act in the interests of justice. Yet, it deserves to be singled out as a professional value which should be protected in and of itself.

The value of courage was colourfully described by Judge Parry:25

Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Caesar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man. … Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone.

Courage is also praised by the judiciary as one of the values on which the success of the Bar is based:26

Forensic techniques may vary from time to time but it is still possible to point to success at the Bar based upon a reputation for courage in standing up to the judge when occasion demands.

Courage outside the courtroom is just as important. It takes courage to give honest advice to the client, rather than the advice the client wants to hear. This is even more so where honest advice means that the client would not instruct you again, or that you forego a lucrative brief, or a case which raises a point of law in which you are interested. It is undeniable that both the interests of the client and the administration of justice would be best served by advocates who have courage to dispense honest and independent advice.

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Competence or excellence

It goes without saying that an advocate cannot represent his client or serve the interests of justice unless he is competent to do so.27 Availability of competent legal representation is fundamental to a just and fair system of justice:28

…the judge personally, and the administration of justice as a whole, are advantaged by the presence, assistance and professionalism of high quality advocates on both sides.

Similarly, for the public to have confidence in the administration of justice, they must have confidence in the ability of the legal profession to provide effective and competent legal advice and representation.

However, there is no reason why we, as a profession of specialist self-employed advocates, should not strive for excellence rather than mere competence. Excellence in advocacy, knowledge of the law, and courage to use that knowledge effectively, sets apart the independent referral Bar from other professions. Excellence will ensure the survival of the independent Bar despite any structural changes to the profession and the increasing demand for cheaper services. Finally, excellence of advocates and the judiciary is at least partly responsible for clients all over the world choosing to resolve their disputes in certain international jurisdictions.

The maintenance of competence and excellence of the Bar is the duty of the profession itself, both collectively and individually. For instance, while regulators in England and Wales are presently concerned with establishing a compulsory system of measuring and regulating competency of advocates,29 there is no reason why the Bar itself should not do more to maintain the standard of excellence across its profession. For instance, many experienced advocates across all ICAB jurisdictions see it as their duty to the profession to educate young barristers in the art of advocacy.30 Similarly, as Judge Parry reminisced in 1923:31

We have seen of old how the senior members of the Bar trained up the juniors in the mystery of their craft, and throughout the practice of the profession it has always been a point of honour for the elders to assist the beginners in those difficult days of apprenticeship.

Nowadays, Inns of Court, the Faculty of Advocates, the New Zealand Bar Association, the Honorable Society of King’s Inns in Ireland (and, no doubt, societies representing barristers and advocates in other jurisdictions) are recognised as leading centres of advocacy training and expertise. They provide the necessary training and experience to young barristers and advocates who may not have otherwise been able to obtain sufficient experience of a particular type of advocacy on their feet. These institutions are well placed to extend their expertise in advocacy training to all branches of the legal profession who wish to pursue this specialist skill and learn the craft of advocacy. Indeed, they and all other members of ICAB should be encouraged to devise (or continue to improve) advocacy training courses to allow young advocates to hone their skills. Without this, the continuity of excellence at the independent Bar, which is its hallmark, cannot be assured.

Finally, it is important that the culture of excellence is encouraged among young advocates since they are the future senior Bar and judiciary. Administration of justice depends on knowledgeable and competent judges as much as on knowledgeable and competent advocates.

How do we maintain excellence? In Shakespeare’s words, “excellence is through industry achieved”.32 This is echoed by Aristotle’s famous saying that:

Excellence is an art won by training and habituation. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. We are what we repeatedly do. Excellence, then, is not an act but a habit.

Our task is therefore to hone and sharpen our advocacy and legal skills through regular practice both in training and in court, the ultimate training arena for advocates striving for excellence. As a specialist advocacy profession we ought to take advantage of the opportunities we get to practise our skills in court, “an unforgiving crucible in which the competent survive, the inadequate dissolve, but the good are burnished.”33

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Civility and camaraderie

The final values which we wanted to bring to your attention are civility and camaraderie.

One might wonder what civility and camaraderie have to do with the administration of justice? Yet, it cannot be denied that lack of civility by an advocate towards his opponents (whether in the courtroom or outside it) is unlikely to assist the administration of justice. Indeed, the use of dubious tactics by an advocate and discourtesy more generally is likely to injure his reputation as an advocate and the reputation of the Bar as a whole.

Advocates representing opposing sides to any dispute would do well to remember that they are both trying to serve the interests of justice by defending their clients’ rights by all proper and lawful means. This, however, should not prevent them from being civil to each other. Indeed, the manner of practise of self-employed advocates encourages the atmosphere of fellowship, support and camaraderie among the advocates that we must never take for granted.

The importance of civility and courtesy in advocacy is acknowledged by the Virginia Bar Association’s Creed as follows:34

Courtesy is neither a relic of the past not a sign of less than fully committed advocacy. Courtesy is simply the mechanism by which lawyers can deal with daily conflict without damaging their relationships with their fellow lawyers and their own wellbeing.

Civility is not inconsistent with zealous advocacy. You can be civil while you’re aggressive, upset, angry and intimidating; you’re just not allowed to be rude.

The maintenance of advocates’ professional relationships with their opponents is important, not least due to the fact that they may well have to meet those opponents in chambers, in the Bar Library, in the dining hall of one of the Inns, and at Bar and wider professional events and functions for the rest of their professional career. For this reason, Judge Parry noted back in 1926 that:35

... at the English Bar we may claim that we set a good example to other bodies of learned men by our real attachment to the precepts and practice of fellowship, and may, without hypocrisy, commend the rest of mankind to follow in our footsteps,

And do as adversaries do in law,

Strive mightily, but eat and drink as friends.

We hope that this atmosphere of civility, courteousness, camaraderie and fellowship continues to be preserved across all of the modern Bars irrespective of their size. As John R. Silber recognised in 1972:36

The lawyers’ contribution to the civilizing of humanity is evidenced in the capacity of lawyers to argue furiously in the courtroom, then sit down as friends over a drink or dinner. This habit is often interpreted by the layman as a mark of their ultimate corruption. In my opinion, it is their greatest moral achievement: It is a characteristic of human tolerance that is most desperately needed at the present time.

The functions of a modern advocate

The functions of a modern advocate reflect in some measure the values we have identified above. Upholding the rule of law and ensuring the interests of justice by acting as an intermediary between the lay client and the judge is the primary function of the referral advocate. In practical terms, however, the modern advocate performs the following functions:

  1. provision of specialist advocacy services;
  2. provision of litigation advice, including advice on prospects of success, advice on evidence, advice on compliance with procedural rules and advice on any procedural applications;
  3. provision of specialist and/or expert legal advice; and
  4. problem-solving, including provision of advice pre-empting litigation or finding means to resolve a dispute without resort to courts.

Provision of specialist advocacy services

Advocacy has always been recognised as a specialist skill. All advocates (irrespective of which part of the legal profession they come from) require specialist training before they are able to appear in court. Importantly, however, advocates must have the opportunity to build on their compulsory professional training with practical experience. That experience may come in many forms: attending court and tribunal hearings, conducting arbitrations and mediations or attending advocacy workshops. Employed advocates may acquire such experience and achieve a very high level of skill. Specialist referral advocates, however, by virtue of their training and the natural focus of their practice, often have considerably more experience in the art of advocacy than their employed colleagues. Indeed, even in jurisdictions where the profession is fused, such as the U.S., law firms will often have specialist litigators whose job consists of attending court hearings on behalf of the firm’s clients.

The strength of advocates belonging to the referral Bar, as opposed to employed advocates, consists in the their ability to act for opposing sides in different cases. Thus the same advocate can represent a defendant on one day and then act for prosecution on another. This variety of experience allows them to gain experience of advocacy for two opposing sides of the argument, which would not be available to their employed colleagues (at least not without moving to a different employer).

This feature of the Irish bar was described by Denham J (as she then was) in the Irish Supreme Court case of Bula Ltd. v. Tara Mines Ltd. (No. 6) in the following terms: 37

Thus, for example, having acted for the Director of Public Prosecutions in prosecuting a case, counsel may the next day defend a defendant in a case prosecuted by the Director, or, having completed a personal injuries claim on behalf of a plaintiff in which case the defendant was covered by an insurance company, the counsel may then represent a defendant covered by the insurance company. Indeed, a person who has been on the receiving end of a barrister's skill (whether it be by way of advices or cross-examination or whatever) often decides that the next time he or she will need counsel he or she will ask his or her solicitor to seek out that particular barrister. Choice of counsel is an important matter.

In his recent book38 Richard Susskind spells out the suggested end of the legal profession as we know it due to economic demand for cheaper legal services, developments in IT and the use of online dispute resolution methods. However, even he acknowledges that:39

… much of the work of the oral advocate is highly bespoke in nature and it is not at all obvious how the efforts and expertise of the courtroom lawyer might be standardised or computerised. Indeed, oral advocacy at its finest is probably the quintessential bespoke legal service.

For this reason, he concludes that there is little doubt that the very high value and complex legal issues will continue to be argued before courts and that “the clients will continue to secure the talents of the finest legal gladiators who will combat on their behalf.” He does express some doubt as to whether clients would continue instructing advocates for less complex disputes on the basis that it might be commercially unjustifiable.

It is difficult to see, however, what other alternatives would be open to them, unless they wish to represent themselves. Unless the dispute settles out of court, specialist and bespoke advocacy services of the referral Bar are likely to be always in demand, irrespective of the difficulty of the issue. Indeed, in the case of less complex trials, the services of self-employed advocates are likely to be much less costly than those of the law firms with higher overheads. This last point has been made in these terms:40

No busy litigation practice could succeed without the assistance of barristers. Quite apart from the specialist expertise that barristers offer, they also offer the very pragmatic role of being somewhere when the solicitor cannot be there, or where it is uneconomical for the solicitor to be there personally. … Often it makes more sense economically for a solicitor to stay in the office and see new clients, than it is for the solicitor to be preparing a case, or instructing a barrister in mentions or routine matters that can quite properly be delegated. …

Accordingly, irrespective of the structure of the profession, specialist advocacy services will always be required. In our opinion, the independent referral Bar, not constrained by the demands of corporate profits and corporate conflicts of interest, remains best placed to provide those specialist advocacy services. Importantly, if clients wish to be able to access the entire talent at the Bar, it is in their interest to support the continued existence of an independent referral Bar, whose members will be able and indeed required to act for any client.

Provision of litigation advice

The work of a modern advocate, at least in commercial and civil matters, is no longer confined to appearing in court. Typically, an advocate will be called upon to advise on the merits of a potential claim before the court proceedings are commenced. They also identify possible legal grounds of any claim or defence as well as advise on the lines of enquiry and evidential investigation which should be pursued by the lay client in order to advance or resist the claim.

Even before the proceedings commence, a modern advocate’s advice is sought on how best to respond to any pre-action correspondence. In public law cases, where the decision threatened to be challenged is yet to be taken by a public authority, an advocate’s opinion may well be sought on the legality of a particular course of action or decision and its compliance with the principles of reasonableness, proportionality and procedural fairness. Such advocates are thus be intimately involved in the process of making the final decision even before such decision is challenged.

Once litigation commences, an advocate’s advice is typically sought on procedural matters, such as the need to make applications for further particulars or further disclosure, on disclosure of evidence (and in particular whether any privilege applies) and finally, on the presentation of evidence. Modern advocates are no longer considered to be experts only in oral advocacy but also in the procedural intricacies of the ever changing and complicated civil and criminal procedure rules. Young advocates would be well advised to become enthusiastic scholars of court procedure since clients are more likely to seek their advice on tricky procedural points than tricky legal points (which are usually deferred to more senior advocates).

Nowadays, the trial represents the final phase of a long litigation process which is subject to case management by the courts. With the current emphasis on “hands on” case management by judges in many ICAB jurisdictions, and on alternative dispute resolution, effective advocacy depends just as much, if not more, on the steps taken by an advocate prior to bringing the case to court as on the “day in court” itself.

Further, with the increased emphasis on keeping the costs of litigation down, modern advocates are required to advise not only on the application of the civil procedure rules but also on the most proportionate ways of complying with court orders and rules.

Provision of specialist legal advice

More and more often, advocates are asked to give advice on matters which do not involve litigation at all. For instance, how to structure a transaction in accordance with applicable regulatory or tax rules to avoid litigation with or investigation by the regulatory or tax authorities; how to draft a successful submission for a planning permission; how to respond to a particular government proposal; or how to handle redundancies in order to avoid disputes with former employees. In these cases advocates are relied upon for their specialist and detailed knowledge of the relevant law and for their awareness of matters which can lead to litigation. Their role is a prophylactic one: to avoid or mitigate legal (including litigation) risk.

Problem-solving

Finally, the modern referral advocate is expected not only to be expert in the law and its use by the courts and tribunals of his jurisdiction, but he is also expected to possess more general skills in problem-solving:41

At the most pragmatic level, lawyers are society's professional problem solvers. Lawyers are called upon to make distinctions, to explain how and why cases or experiences are alike or different. Lawyers are expected to restore equilibrium, to be balancers. Every discipline, every profession, every job, and every calling has a cutting edge. At that cutting edge, lines are drawn. Lawyers and judges are society's ultimate line drawers. On one side of the line, the conduct, action, or inaction is proper; on the other side of the line, it is not.

These are not new sentiments. Abraham Lincoln said of legal practice:42

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Practically, the modern advocate’s wider role as problem-solver requires knowledge of the alternatives to litigation that might be able to provide solutions for the legal problem at hand. Increasingly those alternatives can include not only specialist tribunals but also ombudsmen and consumer advocacy services, on top of the more traditional forms of alternative dispute resolution such as mediation, negotiation and arbitration. The growing use of alternative dispute resolution is common to many ICAB jurisdictions, reflecting in part at least the growing costs of access to the courts as a dispute resolution forum. Modern advocates need to adapt to the changing nature of dispute resolution and be able to advise their clients on all potential choices open to them.

It can be noted that in some of the ICAB jurisdictions, New Zealand and Hong Kong being examples, there is a professional obligation on advocates to keep clients advised of alternatives to litigation that are reasonably available to them.43 This professionally incentivises the advocate to act as a problem-solver.

In addition, modern advocates are required to understand the client’s commercial objectives, including whether involvement in lengthy and unpredictable litigation is in the client’s best interest. Whilst this does not affect the advocate’s legal analysis, it will often be relevant to identifying and helping to weigh the options practically open to the client in light of the advocate’s legal analysis.

Finally and closely related to the need to understand the client’s commercial and other extra-legal objectives, a modern advocate must also be aware of the role of the modern media and be able to advise his clients on media strategy compliant with the law, including the court’s procedural rules.

Conclusion

Ours is a profession undergoing change. But in this we are no different to other professions, as well as most if not all of the industries and trades. Of course we must recognise modern drivers of change, including globalisation and digitisation, and we must respond to them. But in doing that it is important that we do not forget the values we stand for and the functions we best perform. Nor should we lose sight of why we have those values or of why we perform those functions. This paper has testified to the fact that many of the values and functions of the modern specialist advocate are not new but rather they reflect practices developed and lessons learned over many years by the specialist advocates who came before us. Their legacy serves as a nice reminder not only of the living nature of our legal justice system, but also of our need to ensure that we are vigilant to look backwards as well as forwards as we mould the values, the functions and indeed the expectations we place upon the shoulders of modern specialist advocates, to ensure that those advocates reflect and can meet the needs of our ever-changing society.

With that in mind, we leave to Sir Frank Kitto the closing words:44

[A] barrister is more than his client’s confidant, adviser and advocate, and therefore must possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judge, as well as with his fellow members of the Bar in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.

Annex to this paper

As the Annex to this paper runs to some 60 pages, it has been decided to make it available in digital form to Conference attendees at a link to be supplied.

Claire Hogan
Law Library, Dublin

Tetyana Nesterchuk
Fountain Court Chambers
Temple, London

Matthew Smith
Thorndon Chambers
Wellington

Footnotes

Editor’s Note: The link to the Annex referred to in paragraph 2 of the paper is not yet available. It will be provided as soon as possible.

  1. According to the ICAB Constitution, at para. 4(a), those members are the Australian Bar Association, the General Council of the Bar of England and Wales, the Hong Kong Bar Association, the Bar Council of Ireland, the New Zealand Bar Association, the General Council of the Bar of Northern Ireland, the Faculty of Advocates (representing the Scottish Bar), the General Council of the Bar of South Africa, the Zimbabwe Bar Association and the Society of Advocates of Namibia. 
  2. David Pannick QC, “Advocates” (Oxford University Press, 1992), at p. 1.
  3. In the 80 Club Lecture to the Association of Liberal Lawyers given on 19 February 2013, “Tomorrow’s Lawyers Today – Today’s Lawyers Tomorrow”.
  4. Lord Clarke of Stone-Cum-Ebony, “Why the Bar matters and will go on mattering”, closing address at the World Bar Conference 2012.
  5. See paras. 8 and 21-24.
  6. Lord Hoffmann in Hall v Simons [2002] 1 AC 615 at 692D.
  7. In Hall v Simons [2002] 1 AC 615 at 686E-F.
  8. Rondel v Worsley [1967] 1 QB 443 at 502 B-C (emphasis added).
  9. Since Zimbabwe has a fused profession, no formal equivalent of the Cab Rank Rule operates in that jurisdiction. That said it appears that advocates honour the Cab Rank Rule in practice, as can be seen in their representation of political and other minority groups in challenges to the State and its actions.
  10. See, for instance, the Flood/Hviid Report referred to in Section II (England and Wales), para. 48 of the Annex, and the view expressed by Lord Sumption during his speech on Thomas Erskine at the World Bar Conference in 2012.
  11. This is something that both high street banks and regulators have been able to do in England in respect of the fir ms of solicitors, for instance, by insisting that no firm on their chosen panel of counsel is able to act in a case against a bank or a particular regulator.
  12. See the Basic Principles on the Role of Lawyers, para. 18, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, 27 August –
    7 September 1990.
  13. [2002] 1 AC 615 at 739G-H.
  14. Lai v Chamberlains [2005] 3 NZLR 291 (CA) at [106] (upheld by the Supreme Court at [2007] 2 NZLR 7).
  15. Quoted in James Boswell, “The Journal of a Tour to the Hebrides” (1785) (entry for 15 Aug. 1773).
  16. In the speech given at the Presidents of Law Associations in Asia Conference on 20 March 2005.
  17. See, for instance, Sir Thomas Bingham MR (as he then was) in Bolton v Law Society [1994] 1 WLR 512 at 518A: “It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors.”
  18. See Part D of each section of the Annex.
  19. From Abraham Lincoln’s Notes for a Law Lecture dated 1 July 1850 collected by his White House secretaries, John Nicolay and John Hay, as reported in the “Collected Works of Abraham Lincoln”, edited by Roy P. Basler et al. The editors’ note in the “Collected Works of Abraham Lincoln” indicates that Lincoln could have written these observations several years later than 1850. It is also not known whether Lincoln ever delivered this lecture.
  20. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 20.
  21. Cecil Walsh, “The advocate, his aims and aspirations” (Pioneer Press, 1916), Chapter 1.
  22. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at pp. 14-15. He refers to the Mirrour of Justices, apparently written in the 13th century by one Andrew Horn, a fishmonger, which stated that “Every pleader who acts in the business of another should have regard to four things. ... Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses, and never allege, proffer, or consent to any corruption, deceit, lie, or falsified law”.
  23. “A view from the Bar”: The 2010 Sir David Williams Lecture.
  24. See R v Farooqi [2014] 1 Cr App R 8, [2013] EWCA Crim 649 at [109].
  25. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 23.
  26. R v McFadden (Cornelius Michael) [1976] 62 Cr App R 187 at 191.
  27. See Medcalf v Mardell [2003] 1 AC 120, per Lord Hobhouse at [51].
  28. See R v Farooqi [2014] 1 Cr App R 8, [2013] EWCA Crim 649 at [109].
  29. The introduction of the compulsory Quality Assurance Scheme for Criminal Advocates (QASA) by advocacy regulators in England and Wales is currently being challenged as unlawful by the English Bar. While the challenge was dismissed by the Divisional Court in Lumsdon v Legal Services Board [2014] EWHC 28 (Admin), the case is currently on appeal to the Court of Appeal and the decision is expected in October/November 2014.
  30. See, for instance, Edwin Glasgow QC’s speech at the World Bar Conference 2012 on “Advocacy
    Training: What the Young Bar really needs.”
  31. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 102.
  32. William Shakespeare, “Two Gentleman of Verona”.
  33. Martin Shaw, the Kalisher lecture given in October 2012, “Excellence is through industry achieved.”
  34. Lord Clarke; lecture to Malaysian Judges on Ethics and Civil Procedure of 14 September 2011, at para. 40:
    http://www.kehakiman.gov.my/sites/default/files/ETHICS%20for%20Malaysian%20Judges%20O%20
    2011_.pdf.
  35. Judge Edward Abbott Parry, “The Seven Lamps of Advocacy” (London, 1923) at p. 107.
  36. John R. Silber, quoted in the Wall Street Journal, 16 March 1972, at p. 14.
  37. [2000] 4 IR 412 at 443.
  38. “Tomorrow’s lawyers: An introduction to Your Future” (Oxford University Press, 2013).
  39. At Chapter 6, “Trial lawyers and barristers”.
  40. By Dr Tom Altobelli, “Working with Barristers: A solicitor’s guide to relations with the Bar”, at
    http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/026515.pdf.
  41. Rennards Strickland and Frank T. Read, “The Lawyer Myth: A Defense of the American Legal
    Profession” (Swallow Press/Ohio University Press, 2008).
  42. See footnote 19 above.
  43. Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (New Zealand), rule 13.4; para 116A of the Code of Conduct of the Bar of the Hong Kong Special Administrative Region.
  44. Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, at 297-8.

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